GRAHAM v. Devon H. Brown, defendant-respondent. (2023)

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants New York City Transit Authority and Ezra L. Pearson appeal from an order of the Supreme Court, Queens County (Mojgan C. Lancman, J.), entered April 12, 2022.  The order granted the plaintiff's motion for summary judgment on the issue of liability against the defendants New York City Transit Authority and Ezra L. Pearson, and, upon searching the record, awarded the defendant Devon H. Brown summary judgment dismissing the complaint and all cross-claims insofar as asserted against him.

ORDERED that the appeal from so much of the order as, upon searching the record, awarded the defendant Devon H. Brown summary judgment dismissing the complaint insofar as asserted against him is dismissed, as the defendants New York City Transit Authority and Ezra L. Pearson are not aggrieved by that portion of the order (see CPLR 5511;  Mixon v. TBV, Inc., 76 A.D.3d 144, 156–157, 904 N.Y.S.2d 132);  and it is further,

ORDERED that the order is affirmed insofar as reviewed;  and it is further,

ORDERED that one bill of costs is awarded to the plaintiff and the defendant Devon H. Brown payable by the defendants New York City Transit Authority and Ezra L. Pearson.

In June 2018, the plaintiff commenced this action against the defendants New York City Transit Authority (hereinafter the Transit Authority), Ezra L. Pearson, a bus driver for the Transit Authority, and Devon H. Brown to recover damages for personal injuries the plaintiff alleged she sustained in March 2017 when the vehicle she was driving was involved in a three-vehicle accident with a vehicle driven by Brown and a Transit Authority bus driven by Pearson.  The plaintiff moved for summary judgment on the issue of liability against the Transit Authority and Pearson alleging that her vehicle was stopped at a red traffic light in Queens when it was struck in the rear by a vehicle operated by Brown, and that the Transit Authority and Pearson were liable for the plaintiff ‘s injuries, arising out of, inter alia, the negligent operation of the bus which struck Brown's vehicle propelling it into the plaintiff's vehicle.  In an order entered April 12, 2022, the Supreme Court, inter alia, granted the plaintiff's motion, and, upon searching the record, awarded Brown summary judgment dismissing all cross-claims asserted against him.  The Transit Authority and Pearson appeal.

“ ‘A driver of a vehicle approaching another vehicle from the rear is required to maintain a reasonably safe distance and rate of speed under the prevailing conditions to avoid colliding with the other vehicle’ ” (Witonsky v. New York City Tr. Auth., 145 A.D.3d 938, 939, 43 N.Y.S.3d 505, quoting Nsiah–Ababio v. Hunter, 78 A.D.3d 672, 672, 913 N.Y.S.2d 659;  see Vehicle and Traffic Law § 1129[a]).  “A rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the operator of the rear vehicle, thereby requiring that operator to rebut the inference of negligence by providing a nonnegligent explanation for the collision” (Arslan v. Costello, 164 A.D.3d 1408, 1409, 84 N.Y.S.3d 229 [internal quotation marks omitted];  see Edgerton v. City of New York, 160 A.D.3d 809, 810, 74 N.Y.S.3d 617).  Here, in support of her motion, the plaintiff submitted, inter alia, transcripts of her deposition testimony, Brown's deposition testimony and Pearson's deposition testimony, which established, prima facie, that Pearson was negligent in that the Transit Authority bus that he was driving struck Brown's stopped vehicle in the rear thereby causing Brown's vehicle to propel forward and strike the plaintiff's stopped vehicle (see Arslan v. Costello, 164 A.D.3d at 1409, 84 N.Y.S.3d 229).  In opposition to the plaintiff's prima facie showing, the Transit Authority and Pearson failed to raise a triable issue of fact.

The Supreme Court also, upon searching the record, properly awarded Brown summary judgment dismissing all cross-claims asserted against him.  “In a chain collision accident, the operator of the middle vehicle may establish prima facie entitlement to judgment as a matter of law by demonstrating that the middle vehicle was properly stopped behind the lead vehicle when it was struck from behind by the rear vehicle and propelled into the lead vehicle” (Chuk Hwa Shin v. Correale, 142 A.D.3d 518, 519, 36 N.Y.S.3d 213).  Here, the record established that Brown's vehicle was stopped at a red traffic light, behind the plaintiff's vehicle, without touching it, when Brown's vehicle was struck in the rear by the Transit Authority bus, causing Brown's vehicle to move forward and strike the rear of the plaintiff's vehicle (see Robinson v. New York City Tr. Auth., 213 A.D.3d 786, 183 N.Y.S.3d 154;  Chuk Hwa Shin v. Correale, 142 A.D.3d at 519, 36 N.Y.S.3d 213).

DUFFY, J.P., MILLER, WOOTEN and WAN, JJ., concur.