BUSTILLO v. Brendon J. Roth, Defendant Third-Party Plaintiff-Appellant;

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

Diana BUSTILLO, Plaintiff, v. Jean H. MATTURRO, Defendant-Respondent, Brendon J. Roth, Defendant Third-Party Plaintiff-Appellant;

Denise E. Mauriello, Third-Party Defendant-Respondent. Denise E. Mauriello, Plaintiff-Respondent, v. Jean H. Matturro, Defendant-Respondent, Brendon J. Roth, Appellant.

Decided: March 25, 2002

A. GAIL PRUDENTI, P.J., SANDRA J. FEUERSTEIN, DANIEL F. LUCIANO, and ROBERT W. SCHMIDT, JJ. Robert P. Tusa (Sweetbaum & Sweetbaum, Lake Success, N.Y. [Marshall D. Sweetbaum] of counsel), for appellant. Peter J. Creedon, Garden City, N.Y. (James J. Toomey, Jr. and Catherine Cavanagh of counsel), for defendant-respondent.

In two related actions to recover damages for personal injuries, Brendon J. Roth, the defendant third-party plaintiff in Action No. 1, and a defendant in Action No. 2, appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County (Palmieri, J.), dated April 18, 2001, as granted that branch of the motion of Jean H. Matturro, a defendant in both actions, which was for summary judgment dismissing the cross claims insofar as asserted against her, and granted the cross motion of Denise E. Mauriello, the third-party defendant in Action No. 1 and the plaintiff in Action No. 2, for summary judgment against him on the issue of liability.

ORDERED that the order is affirmed insofar as appealed from, with one bill of costs payable to Jean H. Matturro.

These actions arise out of a three-vehicle collision.   The complaints allege that the vehicle operated by Jean H. Matturro, a defendant in both actions, was struck in the rear by a vehicle operated by Brendon J. Roth, the defendant third-party plaintiff in Action No. 1 and a defendant in Action No. 2. The impact propelled the Matturro vehicle into the vehicle in front of it, which was operated by Denise E. Mauriello, the third-party defendant in Action No. 1 and the plaintiff in Action No. 2. Diana Bustillo, the plaintiff in Action No. 1, was a passenger in Mauriello's vehicle.

 It is well established that a rear-end collision with a stopped vehicle creates a prima facie case of liability with respect to the operator of the moving vehicle, unless the operator of the moving vehicle comes forward with an adequate, nonnegligent explanation for the accident (see Leonard v. City of New York, 273 A.D.2d 205, 708 N.Y.S.2d 467;  see also Jeremic v. Tong, 283 A.D.2d 461, 724 N.Y.S.2d 484;  Leal v. Wolff, 224 A.D.2d 392, 638 N.Y.S.2d 110).   If the operator of the moving vehicle cannot come forward with evidence to rebut the inference of negligence, the operator of the stationary vehicle is entitled to summary judgment (see Dileo v. Greenstein, 281 A.D.2d 586, 722 N.Y.S.2d 259;  Lopez v. Minot, 258 A.D.2d 564, 685 N.Y.S.2d 469).

 The movants met their burden of establishing their entitlement to judgment as a matter of law.   In support of their respective motion and cross motion, the movants cited deposition testimony which indicated that their vehicles were stopped when the vehicle driven by Roth hit Matturro's vehicle from the rear.   Matturro's vehicle was then propelled into Mauriello's vehicle (see Dileo v. Greenstein, supra;  Leonard v. City of New York, supra;  Leal v. Wolff, supra).   In opposition, Roth relied upon speculation and the opinions of people without personal knowledge to argue that Matturro's vehicle may have hit Mauriello's vehicle before it was hit by his vehicle.   Roth's opposition was insufficient to raise a triable issue of fact as to his liability (cf.  Viggiano v. Camara, 250 A.D.2d 836, 673 N.Y.S.2d 714;  Omrami v. Socrates, 227 A.D.2d 459, 642 N.Y.S.2d 932;  see also Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595, 404 N.E.2d 718;  Guzman v. Lundy, 285 A.D.2d 626, 728 N.Y.S.2d 672;  Levine v. Taylor, 268 A.D.2d 566, 702 N.Y.S.2d 107).

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