MILLER v. William Rothchild, et al., Defendants–Appellants. (2018)

Order, Supreme Court, Bronx County (Fernando Tapia, J.), entered July 19, 2017, which, in this action for personal injuries sustained in a motor vehicle accident, denied the motion of defendants William Rothchild and Sharon Rothchild (Rothchilds) for summary judgment dismissing the complaint and all cross claims as against them, unanimously reversed, on the law, without costs, and the motion granted.  The Clerk is directed to enter judgment accordingly.

The Rothchilds, in whose vehicle plaintiff was a passenger, established entitlement to judgment as a matter of law by submitting deposition testimony that defendant DeSouza's vehicle rear-ended their stopped vehicle (see Johnson v. Phillips, 261 A.D.2d 269, 690 N.Y.S.2d 545 [1st Dept. 1999] ).  Upon the burden shift, DeSouza failed to offer a nonnegligent explanation for the accident (see Rodriguez v. Garcia, 154 A.D.3d 581, 62 N.Y.S.3d 267 [1st Dept. 2017] ). The record shows that the accident occurred in heavy, stop-and-go traffic, and DeSouza testified to driving three-to-five miles per hour for at least 10 minutes prior to the accident, that he observed cars immediately in front of the Rothchilds' vehicle, and that he did not place his foot on his brake until his moving vehicle was two feet from the Rothchilds' back bumper.  A driver is supposed to make reasonable use of his or her senses (see Martinez v. WE Transp. Inc., 161 A.D.3d 458, 76 N.Y.S.3d 152 [1st Dept. 2018), drive at a safe rate of speed under existing conditions (see Vehicle and Traffic Law § 1180[a];  Chepel v. Meyers, 306 A.D.2d 235, 762 N.Y.S.2d 95 [2d Dept. 2003] ), and maintain a safe distance from other motor vehicles (see Vehicle and Traffic Law § 1129[a];  Passos v. MTA Bus Co., 129 A.D.3d 481, 13 N.Y.S.3d 4 [1st Dept. 2015] ), which was not done in this case.