PILTSER v. DONNA LEE MANAGEMENT CORP (2006)

In an action, inter alia, to recover damages for personal injuries, the plaintiffs appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Hart, J.), dated November 18, 2005, as denied their motion for summary judgment on the issue of liability against the defendants Donna Lee Management Corp. and Michael L. Kanarek.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs payable by the respondents to the plaintiffs, the motion is granted, upon searching the record, the cross motion of the defendant Joseph Santangelo, 3rd, for summary judgment on the issue of liability on his cross claim asserted against the defendants Donna Lee Management Corp. and Michael L. Kanarek, and in effect, for summary judgment dismissing the complaint and the cross claim insofar as asserted against him is granted, and the complaint and cross claim are dismissed insofar as asserted against the defendant Joseph Santangelo, 3rd.

This action arises from a three-car collision.   A vehicle owned by the defendant Donna Lee Management Corp. and operated by the defendant Michael L. Kanarek (hereinafter collectively the respondents) hit the rear of the vehicle in which the plaintiffs were passengers, propelling it into a vehicle operated by the defendant Joseph Santangelo, 3rd.   The plaintiffs moved for summary judgment on the issue of liability against the respondents, and Santangelo cross-moved for summary judgment on the issue of liability on his cross claim against the respondents and, in effect, for summary judgment dismissing the complaint and the cross claim insofar as asserted against him.

 A rear-end collision with a stopped vehicle creates a prima facie case of liability against the operator of the moving vehicle, thereby requiring that operator to rebut the inference of negligence by providing a nonnegligent explanation for the collision (see Milskiy v. Solanky, 8 A.D.3d 353, 777 N.Y.S.2d 734;  Bustillo v. Matturro, 292 A.D.2d 554, 555, 740 N.Y.S.2d 360;  Leonard v. City of New York, 273 A.D.2d 205, 708 N.Y.S.2d 467).   If the operator of the moving vehicle cannot come forward with evidence to rebut the inference of negligence, the occupants and owner of the stationary vehicle are entitled to summary judgment on the issue of liability (see Dileo v. Greenstein, 281 A.D.2d 586, 722 N.Y.S.2d 259;  Leonard v. City of New York, supra at 206, 708 N.Y.S.2d 467;  Lopez v. Minot, 258 A.D.2d 564, 685 N.Y.S.2d 469).

 The plaintiffs met their burden of establishing their prima facie entitlement to judgment on the issue of liability as a matter of law. In opposition, the respondents failed to submit an affidavit from a person with personal knowledge of the facts either denying the plaintiffs' allegations or offering a nonnegligent explanation for the collision (see Arbizu v. REM Transp., 20 A.D.3d 375, 376, 799 N.Y.S.2d 231).   Furthermore, the respondents' mere hope that evidence sufficient to defeat the motion may be uncovered during the discovery process was insufficient to defeat the motion (see Neryaev v. Solon, 6 A.D.3d 510, 775 N.Y.S.2d 348;  Spatola v. Gelco Corp., 5 A.D.3d 469, 470, 773 N.Y.S.2d 101;  Frouws v. Campbell Foundry Co., 275 A.D.2d 761, 714 N.Y.S.2d 227).   Accordingly, the plaintiffs and Santangelo were entitled to summary judgment on the issue of liability as against the respondents.

Although Santangelo did not appeal from the order, this court has the authority to search the record and award summary judgment to a non-appealing party with respect to an issue that was the subject of the motion before the Supreme Court (see Dunham v. Hilco Constr. Co., 89 N.Y.2d 425, 429-430, 654 N.Y.S.2d 335, 676 N.E.2d 1178;  Merritt Hill Vineyards v. Windy Hgts. Vineyard, 61 N.Y.2d 106, 110-111, 472 N.Y.S.2d 592, 460 N.E.2d 1077;  Colon v. Vargas, 27 A.D.3d 512, 514, 811 N.Y.S.2d 755;  Beausejour v. Naseer, 24 A.D.3d 404, 805 N.Y.S.2d 646;  Rodriguez v. Kimco Centereach 605, 298 A.D.2d 571, 572, 749 N.Y.S.2d 543).   Upon searching the record, we grant Santangelo's cross motion for summary judgment on the issue of liability on his cross claim against the respondents, and in effect, for summary judgment dismissing the complaint and cross claims insofar as asserted against him, and dismiss the complaint and the cross claim insofar as asserted against him, and award him summary judgment on the issue of liability on his cross claim asserted against the respondents (see CPLR 3212[b] ).