NIEVES v. Stacy D. Jaloza, et al., defendants-respondents.

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

Justin NIEVES, etc., et al., plaintiffs-respondents, v. JHH TRANSPORT, LLC, d/b/a Lifecare Transport, et al., appellants, Stacy D. Jaloza, et al., defendants-respondents.

Decided: May 29, 2007

ROBERT A. SPOLZINO, J.P., ANITA R. FLORIO, PETER B. SKELOS, and WILLIAM E. McCARTHY, JJ. Hardin, Kundla, McKeon & Poletto, P.A., New York, N.Y. (Joshua L. Seltzer of counsel), for appellants. Block & O'Toole (Pollack, Pollack, Isaac & De Cicco, New York, N.Y. [Brian J. Isaac and Michael H. Zhu] of counsel), for plaintiffs-respondents. Armienti, DeBellis & Whiten, LLP, New York, N.Y. (Vanessa Corchia and Michael T. Gleason of counsel), for defendants-respondents.

In an action to recover damages for personal injuries, etc., the defendants JHH Transport, LLC, d/b/a Lifecare Transport, and Robert Dean appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Polizzi, J.), entered November 23, 2005, as granted that branch of the motion of the defendants Stacy D. Jaloza and Lee J. Jaloza which was for summary judgment dismissing the cross claims they asserted against those defendants and granted the plaintiffs' cross motion for summary judgment against them on the issue of liability.

ORDERED that the order is affirmed insofar as appealed from, with one bill of costs.

 “[A] rear-end collision with a stopped 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 rebut the inference of negligence by providing a non-negligent explanation for the collision” (Carhuayano v. J & R Hacking, 28 A.D.3d 413, 414, 813 N.Y.S.2d 162;  see Gregson v. Terry, 35 A.D.3d 358, 361, 827 N.Y.S.2d 181;  Shamah v. Richmond County Ambulance Serv., 279 A.D.2d 564, 565, 719 N.Y.S.2d 287;  Barile v. Lazzarini, 222 A.D.2d 635, 636, 635 N.Y.S.2d 694).

 In opposition to the prima facie demonstration by the respective movants of their entitlement to judgment as a matter of law, the appellants failed to proffer sufficient evidence to rebut the inference of their own negligence and to raise a triable issue of fact in this regard (see Rainford v. Han, 18 A.D.3d 638, 639, 795 N.Y.S.2d 645;  Vecchio v. Hildebrand, 304 A.D.2d 749, 750, 758 N.Y.S.2d 666).   The affidavit of the defendant Robert Dean, submitted in opposition to the motion and cross motion, contradicted the admission made by Dean immediately following the accident and contained in the police accident report and his prior deposition testimony that his vehicle struck the rear end of the plaintiffs' vehicle, thereby raising only feigned issues of fact intended solely to avoid the consequences of his prior admissions (see Central Irrigation Supply v. Putnam Country Club Assoc., LLC, 27 A.D.3d 684, 812 N.Y.S.2d 633;  Ruck v. Levittown Norse Assoc., LLC, 27 A.D.3d 444, 445, 812 N.Y.S.2d 567;  Abramov v. Miral Corp., 24 A.D.3d 397, 805 N.Y.S.2d 119;  Nichilo v. B.F.N. Realty Assoc., Inc., 19 A.D.3d 666, 667, 798 N.Y.S.2d 487;  Arbusto v. Amerada Hess Corp., 16 A.D.3d 527, 528, 790 N.Y.S.2d 892;  Moody v. New York City Bd. of Educ., 8 A.D.3d 639, 640, 780 N.Y.S.2d 603).   The additional affidavit of John Graziano, the driver of another vehicle involved in the accident, was likewise insufficient to raise a triable issue of fact.

Accordingly, the Supreme Court properly granted that branch of the motion of the defendants Stacy D. Jaloza and Lee J. Jaloza which was for summary judgment dismissing the cross claims asserted by the appellants against them and properly granted the plaintiffs' cross motion for summary judgment against the appellants on the issue of liability.

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