JOANNA BAKER ET AL PLAINTIFFS v. ERIN SAVO ET AL DEFENDANTS

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Supreme Court, Appellate Division, Fourth Department.

JOANNA BAKER, ET AL., PLAINTIFFS, v. ERIN SAVO, ET AL., DEFENDANTS.

ERIN SAVO, THIRD–PARTY PLAINTIFF–RESPONDENT, v. KANDACE M. HURYSZ, THIRD–PARTY DEFENDANT–APPELLANT.

CA 15–01980

Decided: September 30, 2016

PRESENT:  WHALEN, P.J., SMITH, NEMOYER, CURRAN, AND SCUDDER, JJ. LAW OFFICE OF DANIEL R. ARCHILLA, BUFFALO (JOAN M. RICHTER OF COUNSEL), FOR THIRD–PARTY DEFENDANT–APPELLANT.

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs, the motion is granted, and the third-party complaint is dismissed.

Memorandum:  Plaintiffs commenced this action seeking damages for injuries sustained by Joanna Baker (plaintiff) in a rear-end collision when a vehicle operated by third-party defendant (Hurysz), in which plaintiff was a passenger, was rear-ended by a vehicle operated by defendant-third-party plaintiff (Savo).  Savo commenced a third-party action against Hurysz seeking indemnification and/or contribution.  We agree with Hurysz that Supreme Court erred in denying her motion seeking summary judgment dismissing the third-party complaint.

“[A] rear-end collision with a stopped or stopping vehicle creates a prima facie case of negligence with respect to the operator of the moving vehicle, and imposes a duty on the operator of the moving vehicle to come forward with an adequate, [nonnegligent] explanation for the accident” (Barron v. Northtown World Auto, 137 AD3d 1708, 1709 [internal quotation marks omitted];  see Tate v. Brown, 125 AD3d 1397, 1398;  Ruzycki v. Baker, 301 A.D.2d 48, 49).  In support of her motion, Hurysz submitted evidence that she had stopped her vehicle after a pickup truck stopped directly in front of her, and the collision occurred after Hurysz's vehicle had been stopped for at least 15 seconds (see Kovacic v. Delmont, 134 AD3d 1460, 1461).  We therefore conclude that Hurysz established her entitlement to judgment as a matter of law (see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562).  In opposition to the motion, Savo submitted the deposition testimony of the parties, which failed to provide a nonnegligent explanation for the rear-end collision and therefore failed to raise an issue of fact sufficient to defeat the motion (see id.).

Frances E. Cafarell

Clerk of the Court