BUCCERI v. Ramesh Hector, Respondent-Appellant.

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

Marianna BUCCERI, Respondent, v. Donald FRAZER, Appellant-Respondent, Ramesh Hector, Respondent-Appellant.

Decided: August 12, 2002

CORNELIUS J. O'BRIEN, J.P., WILLIAM D. FRIEDMANN, LEO F. McGINITY and HOWARD MILLER, JJ. McCabe, Collins, McGeough & Fowler (Rivkin Radler, LLP, Uniondale, N.Y. [Evan H. Krinick, Cheryl F. Korman, and Harris J. Zakarin] of counsel), for appellant-respondent. Ryan, Perrone & Hartlein, P.C., Mineola, N.Y. (Robin Mary Heaney and William T. Ryan of counsel), for respondent-appellant. Scott F. Guardino, Albertson, N.Y. (Matthew A. Tedone of counsel), for respondent.

In an action to recover damages for personal injuries, the defendant Donald Frazer appeals, as limited by his brief, from so much of an order of the Supreme Court, Queens County (Taylor, J.), dated August 13, 2001, as denied his motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against him, and the defendant Ramesh Hector cross-appeals, as limited by his brief, from so much of the same order as denied his cross motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against him.

ORDERED that the order is reversed insofar as appealed from, on the law, the motion of the defendant Donald Frazer is granted, the complaint and all cross claims are dismissed insofar as asserted against that defendant, and the action against the remaining defendant is severed;  and it is further,

ORDERED that the order is affirmed insofar as cross-appealed from;  and it is further,

ORDERED that the defendant Donald Frazer is awarded one bill of costs, payable by the plaintiff.

The plaintiff brought this action against the defendants Donald Frazer and Ramesh Hector to recover damages for personal injuries which she allegedly suffered when her vehicle collided with the rear of Hector's vehicle on an entrance ramp to the Belt Parkway in Queens County.   Frazer's and Hector's vehicles were stopped on the entrance ramp after Hector's vehicle struck the rear of Frazer's vehicle some five minutes earlier.   Following discovery, Frazer moved for summary judgment dismissing the complaint and all cross claims insofar as asserted against him on the ground, inter alia, that he was not negligent since the plaintiff had collided with the rear of Hector's stopped vehicle.   Hector subsequently cross-moved for the same relief, but failed to comply with the notice provisions of CPLR 2215.   The Supreme Court denied the motion and cross motion.   We grant Frazer's motion and dismiss the complaint and all cross claims insofar as asserted against him.

 “As a general rule, a rear-end collision with a stopped automobile creates a prima facie case of liability with respect to the operator of the moving vehicle unless the operator of the moving vehicle can come forth with an adequate, non-negligent explanation for the accident” (Demenagas v. Yan Hok Lai, 275 A.D.2d 759, 713 N.Y.S.2d 369 [citations omitted];  see Shamah v. Richmond County Ambulance Serv., 279 A.D.2d 564, 719 N.Y.S.2d 287;  Waters v. City of New York, 278 A.D.2d 408, 717 N.Y.S.2d 647). “When a driver of an automobile approaches another automobile from the rear, he or she is bound to maintain a reasonably safe rate of speed and control over his or her vehicle, and to exercise reasonable care to avoid colliding with the other vehicle” (Filippazzo v. Santiago, 277 A.D.2d 419, 716 N.Y.S.2d 710;  see Power v. Hupart, 260 A.D.2d 458, 688 N.Y.S.2d 194;  Abramowicz v. Roberto, 220 A.D.2d 374, 631 N.Y.S.2d 442).

 In this case, Frazer established prima facie that he is entitled to summary judgment on the issue of liability against the plaintiff by demonstrating that her vehicle struck Hector's vehicle from the rear, thereby shifting the burden to the plaintiff to raise a triable issue of fact as to whether he was negligent and whether such negligence was a proximate cause of the accident (see Hanak v. Jani, 265 A.D.2d 453, 453-454, 696 N.Y.S.2d 237;  Sorrentino v. Riemer, 252 A.D.2d 522, 675 N.Y.S.2d 296;  Mascitti v. Greene, 250 A.D.2d 821, 822, 673 N.Y.S.2d 206).   The plaintiff failed to raise such a triable issue.   Rather, the evidence established that “ the proximate cause of the accident was the plaintiff's failure to control her vehicle” (Marsella v. Sound Distrib. Corp., 248 A.D.2d 683, 684, 670 N.Y.S.2d 559;  see Metzler v. Brawley, 209 A.D.2d 487, 619 N.Y.S.2d 282;  Barile v. Lazzarini, 222 A.D.2d 635, 635 N.Y.S.2d 694;  Waters v. City of New York, supra;  Filippazzo v. Santiago, 277 A.D.2d 419, 716 N.Y.S.2d 710;  Bournazos v. Malfitano, 275 A.D.2d 437, 713 N.Y.S.2d 75;  Demenagas v. Yan Hok Lai, supra).   Thus, Frazer was entitled to summary judgment.

 However, the Supreme Court properly denied Hector's cross motion for summary judgment.   Since Hector failed to comply with the notice provisions of CPLR 2215 in making his cross motion, the Supreme Court lacked jurisdiction to entertain the cross motion (see Vanek v. Mercy Hosp., 135 A.D.2d 707, 707-708, 522 N.Y.S.2d 607;  Fortanasce v. Meyrowitz, 141 A.D.2d 606, 529 N.Y.S.2d 993;  Marsico v. Southland Corp., 148 A.D.2d 503, 506, 539 N.Y.S.2d 378).   In light of the substantive merit to Hector's cross motion, however, he should be granted leave to resubmit the cross motion on proper notice to the plaintiff.

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