Opinion
No. 2022-07663 Index No. 151435/21
02-21-2024
Dmitriy Abramov, respondent, v. Siera M. Martinez, et al., appellants (and a third-party action).
Dennis C. Bartling, Melville, NY (Martha E. Donovan and Melissa A. Marano of counsel), for appellants. Cherny & Podolsky PLLC, Brooklyn, NY (Mari Milorava-Kelman and Steven V. Podolsky of counsel), for respondent.
Dennis C. Bartling, Melville, NY (Martha E. Donovan and Melissa A. Marano of counsel), for appellants.
Cherny & Podolsky PLLC, Brooklyn, NY (Mari Milorava-Kelman and Steven V. Podolsky of counsel), for respondent.
ANGELA G. IANNACCI, J.P. PAUL WOOTEN HELEN VOUTSINAS LILLIAN WAN, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, the defendants appeal from an amended order of the Supreme Court, Richmond County (Ralph J. Porzio, J.), dated August 9, 2022. The amended order, insofar as appealed from, granted the plaintiff's cross-motion for summary judgment on the issue of liability and dismissing the defendants' affirmative defense alleging comparative negligence.
ORDERED that the amended order is modified, on the law, by deleting the provision thereof granting that branch of the plaintiff's cross-motion which was for summary judgment dismissing the defendants' affirmative defense alleging comparative negligence, and substituting therefor a provision denying that branch of the cross-motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.
On May 10, 2021, an accident occurred involving three vehicles. The lead vehicle was operated by the third-party defendant, Igor Ziskin. The middle vehicle was operated by the plaintiff. The rearmost vehicle was owned by the defendants Siera M. Martinez and Anthony Martinez and operated by the defendant Victor A. Rita, Jr. The plaintiff commenced this action against the defendants to recover damages for personal injuries that he allegedly sustained as a result of the accident. The defendants commenced a third-party action against Ziskin. The plaintiff cross-moved for summary judgment on the issue of liability and dismissing the defendants' affirmative defense alleging comparative negligence, contending that Rita's negligent operation of the defendants' vehicle was the sole proximate cause of the accident. The Supreme Court, inter alia, granted the plaintiff's cross-motion. The defendants appeal.
To be entitled to summary judgment on the issue of a defendant's liability, a plaintiff does not bear the burden of establishing the absence of his or her own comparative negligence (see Rodriguez v City of New York, 31 N.Y.3d 312; Sooklall v Morisseav-Lafague, 185 A.D.3d 1079, 1081). The issue of a plaintiff's comparative negligence, however, may be decided in the context of a summary judgment motion where the plaintiff moves for summary judgment dismissing a defendant's affirmative defense alleging comparative negligence (see Seizeme v Levy, 208 A.D.3d 809, 810; Sapienza v Harrison, 191 A.D.3d 1028, 1029).
"When the driver of an automobile approaches another automobile from the rear, he or she is bound to maintain a reasonably safe distance, rate of speed and control over his or her vehicle, and to exercise reasonable care to avoid colliding with the other vehicle" (Sougstad v Capuano, 215 A.D.3d 776, 777; see Vehicle and Traffic Law § 1129[a]; Robinson v New York City Tr. Auth., 213 A.D.3d 786). 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, requiring that operator to come forward with evidence of a nonnegligent explanation for the collision in order to rebut the inference of negligence (see Tutrani v County of Suffolk, 10 N.Y.3d 906, 908; McPhaul-Guerrier v Leppla, 201 A.D.3d 920, 921-922).
Here, in support of his cross-motion, the plaintiff submitted, inter alia, his affidavit, which established, prima facie, that Rita was negligent in striking the plaintiff's vehicle from the rear and that the plaintiff himself was not comparatively at fault since his vehicle, which was properly stopped behind the lead vehicle for the traffic conditions ahead, was propelled into the lead vehicle after it was struck from the rear by the defendants' vehicle (see Robinson v New York City Tr. Auth., 213 A.D.3d at 787-788; Nicola v Nicholas, 208 A.D.3d 791, 793). In opposition, the defendants failed to raise a triable issue of fact as to whether Rita had a nonnegligent explanation for striking the plaintiff's vehicle from the rear (see Capuozzo v Miller, 188 A.D.3d 1137, 1138; Auguste v Jeter, 167 A.D.3d 560, 560-561; Mallen v Su, 67 A.D.3d 974, 975). However, the defendants did raise triable issues of fact as to whether the plaintiff's vehicle struck the lead vehicle before the plaintiff's vehicle was struck in the rear by the defendants' vehicle and whether the plaintiff was comparatively at fault in the happening of the injury-producing event (see Sooklall v Morisseav-Lafague, 185 A.D.3d at 1082; Gavrilova v Stark, 129 A.D.3d 907, 909; Thoman v Rivera, 16 A.D.3d 667, 669).
In light of the above determination, it is not necessary to review the parties' remaining contention.
Accordingly, the Supreme Court properly granted that branch of the plaintiff's cross-motion which was for summary judgment on the issue of liability, but it should have denied that branch of the plaintiff's cross-motion which was for summary judgment dismissing the defendants' affirmative defense alleging comparative negligence.
IANNACCI, J.P., WOOTEN, VOUTSINAS and WAN, JJ., concur.