ROSA v. Ray's School Trans. Co., Inc., et al., Appellants.

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

Francesca ROSA, etc., et al., Plaintiffs-Respondents, v. COLONIAL TRANSIT, INC., et al., Defendants-Respondents, Ray's School Trans. Co., Inc., et al., Appellants.

Decided: October 30, 2000

MYRIAM J. ALTMAN, J.P., WILLIAM D. FRIEDMANN, GABRIEL M. KRAUSMAN and NANCY E. SMITH, JJ. Diamond, Paino, Cardo, King, Peters & Fodera, Brooklyn, N.Y. (Deborah F. Peters of counsel), for appellants. Michael Stewart Frankel, New York, N.Y. (Richard H. Bliss of counsel), for plaintiffs-respondents. Dwyer & Brennan, New York, N.Y. (Daniel J. Dwyer of counsel), for defendants-respondents Colonial Transit, Inc., and Dinelex School Transportation, Inc. Hawkins, Feretic, Daly, Maroney & Hayes, P.C., New York, N.Y. (William E. Fay III of counsel), for defendant-respondent Mervin Harding.

In an action to recover damages for personal injuries, etc., the defendants Ray's School Trans. Co., Inc., Richard K. Wilkerson, and Sunny Side School Transportation Corp. appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Shaw, J.), dated August 6, 1999, as denied their motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against them.

ORDERED that the order is affirmed insofar as appealed from, with one bill of costs to the respondents appearing separately and filing separate briefs.

 Contrary to the appellants' contention, the Supreme Court properly denied their motion for summary judgment.   Although a rear-end collision with a stopped vehicle creates a prima facie case of liability with respect to the operator of the moving vehicle (see, Martin v. Pullafico, 272 A.D.2d 305, 707 N.Y.S.2d 891;  Mundo v. City of Yonkers, 249 A.D.2d 522, 672 N.Y.S.2d 128;  Migdol v. Striker, 215 A.D.2d 358, 626 N.Y.S.2d 963), a triable issue of fact exists as to whether the driver of the stopped bus, the appellant Richard K. Wilkerson, contributed to the accident by making a sudden stop (see, Gildersleeve v. Leo, 274 A.D.2d 547, 712 N.Y.S.2d 399;  Maschka v. Newman, 262 A.D.2d 615, 692 N.Y.S.2d 472;  Mundo v. City of Yonkers, supra;  Migdol v. Striker, supra).   Furthermore, an award of summary judgment would be inappropriate in this case since Wilkerson has not appeared for court-ordered examinations before trial, thereby depriving the plaintiffs and codefendants of an opportunity to obtain evidence pertinent to the cause of the accident (see, CPLR 3212[f];  Hoxha v. City of New York, 265 A.D.2d 379, 696 N.Y.S.2d 850;  Lantigua v. Mallick, 263 A.D.2d 467, 693 N.Y.S.2d 619;  Campbell v. City of New York, 220 A.D.2d 476, 631 N.Y.S.2d 932;  Soto v. City of Long Beach, 197 A.D.2d 615, 602 N.Y.S.2d 691).

MEMORANDUM BY THE COURT.

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