FARRINGTON v. Hector G. Frias, Defendant-Appellant. (2006)

Order, Supreme Court, Bronx County (Stanley Green, J.), entered January 9, 2006, which granted the motion by defendants Transit Authority and Milliner for summary judgment dismissing the complaint and all cross claims against them, unanimously affirmed, without costs.

The record does not support the assertion by defendant Frias, the driver of the car in which plaintiff was a passenger, that the Transit Authority vehicle in front of him had stopped suddenly, so as to rebut the presumption of Frias's negligence in this rear-end collision (Agramonte v. City of New York, 288 A.D.2d 75, 732 N.Y.S.2d 414 [2001];  see also Mullen v. Rigor, 8 A.D.3d 104, 778 N.Y.S.2d 168 [2004] ).   There is no testimony establishing why Frias was unable to avoid the accident.   He first saw the Transit Authority vehicle three to four seconds before impact, as he was approaching a clearly visible, bottle-necked construction area (see e.g. De La Cruz v. Ock Wee Leong, 16 A.D.3d 199, 791 N.Y.S.2d 102 [2005] ).   Under such circumstances, even if the Transit Authority vehicle's brake lights were not functioning, as Frias claims, such failure would not adequately rebut the inference of his negligence (see Macauley v. Elrac, Inc., 6 A.D.3d 584, 775 N.Y.S.2d 78 [2004] ).