BOVT v. Triboro Services, Inc., et al., appellants. (2008)

In an action to recover damages for personal injuries, etc., the defendants Triboro Services, Inc., and Clement Figuera appeal from an order of the Supreme Court, Kings County (F. Rivera, J.), dated June 22, 2007, which denied their motion for summary judgment dismissing the complaint insofar as asserted against them.

ORDERED that the order is affirmed, with costs to the respondents.

The defendants Triboro Services, Inc., the owner of the vehicle involved in the subject accident, and Clement Figuera, the driver of the vehicle, failed to sustain their initial burden of demonstrating the absence of a triable issue of fact as to whether Figuera exercised due care to avoid the accident under the circumstances that existed at the time it occurred (see CPLR 3212[b];  Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642;  Paulin v. Needham, 28 A.D.3d 531, 532, 812 N.Y.S.2d 658).   Figuera's deposition testimony that he was following at a distance of one-half of a car length when the vehicle in front of his stopped abruptly raised a triable issue as to whether Figuera contributed to the chain collision by following too closely or making a sudden stop in a lane of travel (see Vehicle and Traffic Law § 1129[a];  Quezada v. Aquino, 38 A.D.3d 873, 833 N.Y.S.2d 169;  Insinga v. F.C. Gen. Contr., 33 A.D.3d 963, 964, 823 N.Y.S.2d 513;  Brodie v. Global Asset Recovery, Inc., 12 A.D.3d 390, 783 N.Y.S.2d 832).

In light of the defendants' failure to make a prima facie showing of entitlement to judgment as a matter of law, the motion was properly denied (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d at 853, 487 N.Y.S.2d 316, 476 N.E.2d 642;  Paulin v. Needham, 28 A.D.3d at 532, 812 N.Y.S.2d 658).