Priscilla Rodriguez, Plaintiff–Appellant, v. Angela Chapman–Perry, et al.  Defendants–Appellants–Respondents, Gustavo DeLeon, et al., Defendants–Respondents.

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

Priscilla Rodriguez, Plaintiff–Appellant, v. Angela Chapman–Perry, et al.  Defendants–Appellants–Respondents, Gustavo DeLeon, et al., Defendants–Respondents.


Decided: March 29, 2011

Mazzarelli, J.P., Saxe, Renwick, DeGrasse, Richter, JJ. Abrams, Gorelick, Friedman & Jacobson, P.C., New York (Dennis J. Monaco of counsel), for appellants-respondents.

Boeggeman, George & Corde, P.C., White Plains (Daniel E. O'Neill of counsel), for Gustavo DeLeon, respondent.

White, Quinlan & Staley, LLP, Garden City, (Eileen Farrell of counsel), for Emanuel Salazar, respondent.


Order, Supreme Court, Bronx County (John A. Barone, J.), entered November 24, 2009, which, in this personal injury action, granted the motions of defendants DeLeon and Salazar for summary judgment dismissing the complaint and all cross claims against them, unanimously affirmed, without costs.

Plaintiff Priscilla Rodriguez was a passenger in a vehicle, driven by defendant Devon E. Perry and owned by defendant Angela Chapman–Perry, involved in a multivehicle accident.   According to Perry, shortly before the accident, he was heading southbound on White Plains Road about one car length behind a vehicle driven by defendant Emanuel Salazar, when Salazar suddenly stopped short.   In order to avoid a collision, Perry crossed the double line into northbound traffic, and collided with a vehicle driven by defendant Gustavo DeLeon.

The court properly determined that there is no evidence that either DeLeon or Salazar contributed to the accident.   With respect to DeLeon, Rodriguez and Perry testified that, at the time of the accident, DeLeon's vehicle was stopped at the intersection with his left turn signal on and they never saw his vehicle move.   Rodriguez's and Perry's testimony that DeLeon's vehicle must have been moving because it ultimately came into contact with their vehicle is speculative and insufficient to raise a triable issue of fact (see generally LoBianco v. Lake, 62 AD3d 590, 590–591 [2009] ).   In any event, regardless of whether DeLeon's vehicle was moving, he could not be considered negligently responsible for the accident, as he was faced with an emergency situation not of his own making.   Indeed, the record indicates that Perry was traveling at about 50 to 60 miles per hour when he crossed over into DeLeon's lane of traffic (see Williams v. Simpson, 36 AD3d 507, 508 [2007] ).

With respect to Salazar, Perry failed to provide a non-negligent explanation for his failure to maintain a reasonably safe speed and distance behind Salazar's vehicle.   Under the circumstances, his explanation that Salazar “stopped short” is insufficient to raise an issue of fact as to whether Salazar was negligent in operating his vehicle (see Woodley v. Ramirez, 25 AD3d 451, 452–453 [2006] ).