PEREZ v. CITY OF NEW YORK (2024)

Order, Supreme Court, New York County (J. Machelle Sweeting, J.), entered September 29, 2023, which denied plaintiff's motion for summary judgment on liability and to strike defendants’ affirmative defense alleging comparative fault, unanimously reversed, on the law, without costs, and the motion granted.

Plaintiff sustained his prima facie burden of establishing his entitlement to summary judgment on liability by submitting evidence establishing that defendants’ vehicle collided with the rear of his vehicle as he was attempting to make a right turn (see Kalair v. Fajerman, 202 A.D.3d 625, 626, 164 N.Y.S.3d 106 [1st Dept. 2022]).  In opposition, defendants failed to provide a nonnegligent explanation for the collision (see Baez–Pena v. MM Truck and Body Repair, Inc., 151 A.D.3d 473, 476, 56 N.Y.S.3d 307 [1st Dept. 2017]).  Defendants failed to demonstrate that defendant driver maintained a safe following distance (Vehicle and Traffic Law § 1129[a];  see Chame v. Kronen, 150 A.D.3d 622, 55 N.Y.S.3d 228 [1st Dept. 2017]), or that he could have “reasonably expected that traffic would continue unimpeded” under the circumstances (Baez–Pena, 151 A.D.3d at 477, 56 N.Y.S.3d 307).

Plaintiff's sudden turn or failure to signal, in itself, is insufficient to rebut the presumption of negligence (see Cabrera v. Rodriguez, 72 A.D.3d 553, 553, 900 N.Y.S.2d 29 [1st Dept. 2010]).  Contrary to defendants’ contention, there is no evidence that plaintiff having previously double-parked before the collision or proceeding with his flashing hazard lights on had any bearing on defendant driver's failure to maintain a safe distance from plaintiff's vehicle, which he saw moving before the collision occurred (see Vespe v. Kazi, 62 A.D.3d 408, 409, 878 N.Y.S.2d 46 [1st Dept. 2009]).  Nor is there evidence that plaintiff's vehicle turned suddenly or abruptly changed lanes (see Hernandez v. Advance Tr. Co., Inc., 101 A.D.3d 483, 484, 954 N.Y.S.2d 869 [1st Dept. 2012]).  In addition, a wet roadway does not constitute a sufficient nonnegligent explanation for a collision (see LaMasa v. Bachman, 56 A.D.3d 340, 340, 869 N.Y.S.2d 17 [1st Dept. 2008]).

Supreme Court should have dismissed defendants’ affirmative defense of comparative negligence because defendants’ failure to maintain a safe distance from plaintiff's vehicle was the sole proximate cause of the collision (see Chowdhury v. Matos, 118 A.D.3d 488, 987 N.Y.S.2d 132 [1st Dept. 2014]).