Opinion
No. 2023-00223 Index No. 607551/21
08-21-2024
Dominic Grecco, appellant, v. Altice USA, Inc., et al., respondents.
Rappaport, Glass, Levine & Zullo, LLP (Alexander J. Wulwick, New York, NY, of counsel), for appellant. William J. Fitzpatrick, Hauppauge, NY, for respondents.
Rappaport, Glass, Levine & Zullo, LLP (Alexander J. Wulwick, New York, NY, of counsel), for appellant.
William J. Fitzpatrick, Hauppauge, NY, for respondents.
ANGELA G. IANNACCI, J.P. LARA J. GENOVESI DEBORAH A. DOWLING JANICE A. TAYLOR, JJ.
DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (David T. Reilly, J.), dated December 1, 2022. The order, insofar as appealed from, upon renewal, adhered to a determination in an order of the same court dated June 1, 2022, denying the plaintiff's prior motion for summary judgment on the issue of liability and dismissing the defendants' affirmative defense of comparative negligence.
ORDERED that the order dated December 1, 2022 is reversed insofar as appealed from, on the law, with costs, upon renewal, the order dated June 1, 20222, is vacated, and the plaintiff's motion for summary judgment on the issue of liability and dismissing the defendants' affirmative defense of comparative negligence is granted.
In April 2012, the plaintiff commenced this action to recover damages for injuries he allegedly sustained when he was a passenger seated in the rear of a vehicle driven by nonparty Lisa S. Grecco that was struck in the rear by a vehicle owned by the defendant Altice USA, Inc., and operated by the defendant Philip M. Portanov. In their answer, the defendants asserted, inter alia, an affirmative defense of comparative negligence. The plaintiff moved for summary judgment on the issue of liability and dismissing the defendants' affirmative defense alleging comparative negligence. By order June 1, 2022, the Supreme Court denied the plaintiff's motion. Thereafter, in an order dated December 1, 2022, the Supreme Court, inter alia, upon renewal, adhered to the determination denying the plaintiff's motion. The plaintiff appeals.
"'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'" (Quinones v Grace Indus., LLC, 219 A.D.3d 765, 765-766, quoting Nsiah-Ababio v Hunter, 78 A.D.3d 672, 672; see Vehicle and Traffic Law § 1129[a]). Thus, "[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, thereby requiring that operator to rebut the inference of negligence by providing a nonnegligent explanation for the collision" (Atkins v City of New York, 196 A.D.3d 622, 623; see Tutrani v County of Suffolk, 10 N.Y.3d 906, 908). Under proper circumstances, "[a] sudden stop of the lead vehicle may constitute a nonnegligent explanation for a rear-end collision" (Quinones v Grace Indus., LLC, 219 A.D.3d at 766; see Harding v Royal Waste Servs., Inc., 208 A.D.3d 762, 763; Etingof v Metropolitan Laundry Mach. Sales, Inc., 134 A.D.3d 667, 667-668). Although "'[a] plaintiff is no longer required to show freedom from comparative fault to establish her or his prima facie entitlement to judgment as a matter of law on the issue of liability'" (Newfeld v Midwood Ambulance & Oxygen Serv., Inc., 204 A.D.3d 813, 813, quoting Xin Fang Xia v Saft, 177 A.D.3d 823, 825), "the issue of a plaintiff's comparative negligence 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 and culpable conduct on the part of the plaintiff" (Ali v Alam, 223 A.D.3d 642, 644).
Here, the Supreme Court, upon renewal, should have granted the plaintiff's motion for summary judgment on the issue of liability and dismissing the defendants' affirmative defense alleging comparative negligence. The plaintiff established his prima facie entitlement to judgment as a matter of law by submitting evidence that Portanova was negligent in striking the rear of Grecco's vehicle after Grecco stopped in an intersection to yield to an ambulance displaying emergency lights (see Vehicle and Traffic Law § 1144[a]; Gavrilova v Stark, 129 A.D.3d 907, 908; DiPaola v Scherpich, 239 A.D.2d 459, 460). The plaintiff also established, prima facie, that he did not engage in any culpable conduct that contributed to the happening of the accident (see Yonghong Xia v Zhao Xian Zeng, 219 A.D.3d 914, 915-916; Ochoa v Townsend, 209 A.D.3d 867, 868).
In opposition, the defendants failed to raise a triable issue of fact as to Portanova's negligence or any culpable conduct on the part of the plaintiff (see Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324). Contrary to the defendants' contention, Portanova's failure to see the ambulance until after he struck Grecco's vehicle does not provide a nonnegligent explanation for the accident (see Gavrilova v Stark, 129 A.D.3d at 908; DiPaola v Scherpich, 239 A.D.2d at 460; cf. Balanta v Guo Lin Wu, 220 A.D.3d 720, 720; Quinones v Grace Indus., LLC, 219 A.D.3d at 766; Harding v Royal Waste Servs., Inc., 208 A.D.3d at 763). Moreover, the right of the plaintiff, as an innocent passenger, to summary judgment on the issue of whether he was at fault in the happening of the accident "is not restricted by potential issues of comparative negligence" as between Grecco and Portanova (Yonghong Xia v Zhao Xian Zeng, 219 A.D.3d at 916; see Jung v Glover, 169 A.D.3d 782, 783).
IANNACCI, J.P., GENOVESI, DOWLING and TAYLOR, JJ., concur.