Opinion
12-02-2015
Lyudmila ETINGOF, plaintiff, v. METROPOLITAN LAUNDRY MACHINERY SALES, INC., et al., defendants third-party plaintiffs-appellants; Anna Galuten, third-party defendant-respondent.
Weiner, Millo, Morgan & Bonanno, LLC, New York, N.Y. (Bryan Lipsky and John Bonanno of counsel), for defendants third-party plaintiffs-appellants. Hannum Feretic Prendergast & Merlino, LLC, New York, N.Y. (Jessica M. Erickson of counsel), for third-party defendant-respondent.
Weiner, Millo, Morgan & Bonanno, LLC, New York, N.Y. (Bryan Lipsky and John Bonanno of counsel), for defendants third-party plaintiffs-appellants.
Hannum Feretic Prendergast & Merlino, LLC, New York, N.Y. (Jessica M. Erickson of counsel), for third-party defendant-respondent.
MARK C. DILLON, J.P., SANDRA L. SGROI, JEFFREY A. COHEN, and HECTOR D. LaSALLE, JJ.
In an action to recover damages for personal injuries, the defendants third-party plaintiffs appeal from an order of the Supreme Court, Kings County (Walker, J.), dated February 6, 2015, which granted the motion of the third-party defendant for summary judgment dismissing the third-party complaint.
ORDERED that the order is reversed, on the law, with costs, and the third-party defendant's motion for summary judgment dismissing the third-party complaint is denied.
On February 4, 2014, the plaintiff, while a passenger in a vehicle owned and operated by Anna Galuten, allegedly was injured when the vehicle was struck in the rear by a vehicle owned by Metropolitan Laundry Machinery Sales, Inc. (hereinafter Metropolitan), and operated by Andre E. Balanescu. The plaintiff commenced this action against Metropolitan and Balanescu (hereinafter together the defendants), and the defendants commenced a third-party action against Galuten. After joinder of issue, but before depositions were conducted, Galuten moved for summary judgment dismissing the third-party complaint. The Supreme Court granted the motion.
A defendant moving for summary judgment in a negligence action has the burden of establishing, prima facie, that he or she was not at fault in the happening of the subject accident (see Theodorou v. Perry, 129 A.D.3d 1056, 1057, 12 N.Y.S.3d 247 ; Boulos v. Lerner–Harrington, 124 A.D.3d 709, 709, 2 N.Y.S.3d 526 ). Here, in support of her motion for summary judgment, Galuten submitted her affidavit in which she averred that her vehicle was stopped at a red traffic light for 40–45 seconds when it was struck from behind by the defendants' vehicle. This affidavit was sufficient to establish Galuten's prima facie entitlement to judgment as a matter of law (see Salako v. Nassau Inter–County Express, 131 A.D.3d 687, 15 N.Y.S.3d 444 ; Billis v. Tunjian, 120 A.D.3d 1168, 1169, 992 N.Y.S.2d 319 ; Singh v. Avis Rent A Car Sys., Inc., 119 A.D.3d 768, 770, 989 N.Y.S.2d 302 ).
In opposition, the defendants raised a triable issue of fact as to whether Galuten contributed to the happening of the accident. Mere evidence of a sudden stop, without more, is not enough to raise a triable issue of fact as to whether the operator of the stopped vehicle was partly at fault, so as to defeat summary judgment (see Gavrilova v. Stark, 129 A.D.3d 907, 11 N.Y.S.3d 656 ; Harrington v. Kern, 52 A.D.3d 473, 859 N.Y.S.2d 480 ; Johnston v. Spoto, 47 A.D.3d 888, 850 N.Y.S.2d 204 ). However, while vehicle stops under prevailing traffic conditions are foreseeable and must be anticipated by the following driver, where the sudden stop is unexplained by the existing circumstances and conditions, an issue of fact as to liability is raised (see Sokolowska v. Song, 123 A.D.3d 1004, 1004, 999 N.Y.S.2d 847 ; Amador v. City of New York, 120 A.D.3d 526, 527, 991 N.Y.S.2d 637 ; Fernandez v. Babylon Mun. Solid Waste, 117 A.D.3d 678, 679, 985 N.Y.S.2d 289 ; Kertesz v. Jason Transp. Corp., 102 A.D.3d 658, 957 N.Y.S.2d 730 ).
Here, Balenescu averred, inter alia, that when he was "25 yards from the Galuten vehicle, still traveling at 15 miles per hour, the light turned green, and the Galuten vehicle ... accelerated safely through the intersection into the next block." Then about 10 yards past the intersection of West 23rd Street and 12th Avenue, the Galuten vehicle suddenly stopped short "for no apparent reason," as there was no traffic "for fifty yards in front of the Galuten vehicle," and the Galuten vehicle showed no signs, nor made any signals, to signify that it was stopping. This evidence was sufficient to raise a triable issue of fact as to whether Galuten's alleged negligence caused or contributed to the accident (see Hudgins–Russell v. Sharma, 116 A.D.3d 1004, 1005, 983 N.Y.S.2d 879 ; Markesinis v. Jaquez, 106 A.D.3d 961, 965 N.Y.S.2d 363 ; Pollard v. Independent Beauty & Barber Co., 94 A.D.3d 845, 846, 942 N.Y.S.2d 360 ).
The parties' remaining contentions either are without merit or need not be reached in light of our determination.
Accordingly, the Supreme Court should have denied Galuten's motion for summary judgment dismissing the third-party complaint.