GREENE v. Susan G. Reed, Defendant-Respondent.

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Supreme Court, Appellate Division, Fourth Department, New York.

Alvin M. GREENE, Esq., as Next Friend and/or Guardian Ad Litem for C.W., an Infant, Plaintiff-Appellant, v. Pamela J. (Maltese) SIVRET, et al., Defendants, Susan G. Reed, Defendant-Respondent.

Decided: September 28, 2007

PRESENT:  SCUDDER, P.J., MARTOCHE, LUNN, PERADOTTO, AND GREEN, JJ. David J. Pajak, Alden, for Plaintiff-Appellant. Cohen & Lombardo, P.C., Buffalo (Jonathan D. Cox of Counsel), for Defendant-Respondent.

 Plaintiff commenced this action seeking damages for injuries sustained by C.W. (hereafter, child) when a vehicle operated by defendant Susan G. Reed was rear-ended by a vehicle operated by defendant Pamela J. (Maltese) Sivret, in which the child was a passenger.   Contrary to plaintiff's contention, Supreme Court properly granted the motion of Reed for summary judgment dismissing the second amended complaint and all cross claims against her.   It is well settled that “a rear-end collision with a stopped vehicle establishes a prima facie case of negligence on the part of the driver of the rear vehicle” (Pitchure v. Kandefer Plumbing & Heating, 273 A.D.2d 790, 790, 710 N.Y.S.2d 259).   Here, Reed met her initial burden on the motion by establishing that her stopped vehicle was rear-ended by Sivret's vehicle.   Sivret did not oppose Reed's motion and, in opposing Reed's motion, plaintiff failed to submit the requisite “nonnegligent explanation for the collision” (Ruzycki v. Baker, 301 A.D.2d 48, 49, 750 N.Y.S.2d 680).   Indeed, Sivret testified at her deposition that she was aware of the “stop and go” traffic and thus could have anticipated that Reed might be forced to stop suddenly.   Sivret also admitted that, just before the collision, she had averted her attention from the road in order to look out the passenger window and that, when she returned her attention to the road, she was unable to avoid the collision with Reed's vehicle (see generally Farrington v. New York City Tr. Auth., 33 A.D.3d 332, 822 N.Y.S.2d 51).   Thus, Sivret's “failure to anticipate and react to the slow and cautious movement of [Reed's] vehicle is not an adequate, nonnegligent explanation for the accident” (Ruzycki, 301 A.D.2d at 50, 750 N.Y.S.2d 680 [internal quotation marks omitted];  see Newton v. Perugini, 16 A.D.3d 1087, 1089, 791 N.Y.S.2d 742).

Finally, even assuming, arguendo, that plaintiff is correct that Reed's brake lights malfunctioned, we nevertheless conclude under the circumstances of this case that the alleged malfunctioning brake lights “would not adequately rebut the inference of [Sivret's] negligence” (Farrington, 33 A.D.3d 332, 822 N.Y.S.2d 51;  cf. Bender v. Rodriguez, 302 A.D.2d 882, 883, 754 N.Y.S.2d 475).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: