HEARN v. Mauricio A. Alvarado, et al., appellants.

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Jennifer HEARN, respondent, v. Jonathan A. MANZOLILLO, et al., defendants, Mauricio A. Alvarado, et al., appellants.

Decided: February 13, 2013

RUTH C. BALKIN, J.P., L. PRISCILLA HALL, LEONARD B. AUSTIN and JEFFREY A. COHEN, JJ. Wilson Elser Moskowitz Edelman & Dicker LLP, New York, N.Y. (James Tyrie, Patrick J. Lawless, Richard E. Lerner, and Judy C. Selmeci of counsel), for appellants. Dell, Little, Trovato & Vecere, LLP, Bohemia, N.Y. (Keri A. Wehrheim of counsel), for respondent.

In an action to recover damages for personal injuries, the defendants Mauricio A. Alvarado and Salem Truck Leasing, Inc., appeal (1) from an order of the Supreme Court, Suffolk County (Gazzillo, J.), dated December 30, 2010, which denied their motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against them, and (2), as limited by their brief, from so much of an order of the same court dated January 23, 2012, as, upon renewal, adhered to the original determination.

ORDERED that the appeal from the order dated January 23, 2012, is dismissed as academic in light of our determination on the appeal from the order dated December 30, 2010; and it is further,

ORDERED that the order dated December 30, 2010, is reversed, on the law, the appellants' motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against them is granted, and the order dated January 23, 2012, is vacated; and it is further,

ORDERED that one bill of costs is awarded to the appellants.

The plaintiff was a passenger in a jeep owned by the defendant John Manzolillo, and operated by the defendant Jonathan A. Manzolillo (hereinafter the defendant driver), when it struck the rear of a tractor-trailer owned by the defendant Salem Truck Leasing, Inc., and operated by the defendant Maurice A. Alvarado (hereinafter together the appellants). The appellants moved for summary judgment dismissing the complaint and all cross claims insofar as asserted against them on the ground that they were not at fault in the happening of the subject accident.

“ ‘A driver of a vehicle approaching another vehicle from the rear is required to maintain a reasonably safe distance and rate of speed under the prevailing conditions to avoid colliding with the other vehicle’ “ (Fajardo v. City of New York, 95 A.D.3d 820, 820–821, 943 N.Y.S.2d 587, quoting Ortiz v. Hub Truck Rental Corp., 82 A.D.3d 725, 726, 918 N.Y.S.2d 156; see Taing v. Drewery, 100 A.D.3d 740, 954 N.Y.S.2d 175), and a rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the operator of the rear vehicle (see Ramos v. TC Paratransit, 96 A.D.3d 924, 925, 946 N.Y.S.2d 644; Fajardo v. City of New York, 95 A.D.3d at 821, 943 N.Y.S.2d 587). If the operator of the rear vehicle cannot come forward with evidence to rebut the inference of negligence, the operator of the lead vehicle is entitled to summary judgment on the issue of liability (see Cortes v. Whelan, 83 A.D.3d 763, 922 N.Y.S.2d 419; Staton v. Ilic, 69 A.D.3d 606, 892 N.Y.S.2d 486).

Here, the Supreme Court erred in denying the appellants' original motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against them. The appellants established their prima facie entitlement to judgment as a matter of law by proffering the deposition testimony of the plaintiff and the defendant driver, which established that the tractor-trailer was stopped or stopping when it was struck in the rear by the jeep driven by the defendant driver.

In opposition, the plaintiff relied on her own deposition testimony and that of the defendant driver that the appellant Alvarado stopped suddenly. “A claim of a sudden stop by the leading vehicle, standing alone, is insufficient to rebut the presumption of negligence” (Byrne v. Calogero, 96 A.D.3d 704, 705, 945 N.Y.S.2d 737; see Kastritsios v. Marcello, 84 A.D.3d 1174, 1175, 923 N.Y.S.2d 863; Franco v. Breceus, 70 A.D.3d 767, 895 N.Y.S.2d 152; Mallen v. Su, 67 A.D.3d 974, 975, 890 N.Y.S.2d 79; Lundy v. Llatin, 51 A.D.3d 877, 858 N.Y.S.2d 341). Thus, even fully crediting the plaintiff's version of the accident, she failed to raise a triable issue of fact as to whether the appellants were negligent, and, if so, whether that negligence was a proximate cause of the accident. Consequently, the appellants were entitled to summary judgment dismissing the complaint and all cross claims insofar as asserted against them (see Kastritsios v. Marcello, 84 A.D.3d at 1175, 923 N.Y.S.2d 863; Plummer v. Nourddine, 82 A.D.3d 1069, 1070, 919 N.Y.S.2d 187; Reed v. New York City Tr. Auth., 299 A.D.2d 330, 331, 749 N.Y.S.2d 91).

The parties' remaining contentions, which relate to the order made upon renewal, have been rendered academic in light of our determination.

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