Opinion
No. CA 07-02420.
April 25, 2008.
Appeal from an order of the Supreme Court, Erie County (John A. Michalek, J), entered November 9, 2007 in a personal injury action. The order denied plaintiffs' motion for partial summary judgment on the issue of negligence.
CELLINO BARNES, P.C., BUFFALO (GREGORY V. PAJAK OF COUNSEL), FOR PLAINTIFFS-APPELLANTS.
BROWN KELLY, LLP, BUFFALO (LISA T. SOFFERIN OF COUNSEL), FOR DEFENDANTS-RESPONDENTS.
Present: Scudder, P.J., Martoche, Smith, Lunn and Peradotto, JJ.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiffs commenced this action seeking damages for injuries they allegedly sustained when a vehicle driven by Irad Ramadan (plaintiff) in which plaintiff Joyal Greene was a passenger was rearended by a vehicle owned by defendant Patricia Maritato and driven by Angelo D. Maritato (defendant). Supreme Court properly denied plaintiffs' motion for partial summary judgment on the issue of defendant's negligence. It is undisputed that plaintiffs' vehicle was stopped at the time of the rearend collision, and thus plaintiffs established a prima facie case of negligence on the part of defendant ( see Herdendorf v Polino, 43 AD3d 1429). Viewing the evidence in the light most favorable to defendants ( see generally Ruzycki v Baker, 301 AD2d 48, 50), however, we conclude that defendants rebutted the presumption of negligence by providing a nonnegligent explanation for the collision and thus raised an issue of fact whether the actions of plaintiff contributed to the accident ( see generally id. at 49-50; Heal v Liszewski, 294 AD2d 911). According to defendant's deposition testimony, which was submitted by plaintiffs in support of their motion and by defendants in opposition to the motion, defendant approached a red light and came to a complete stop behind plaintiffs' vehicle prior to the collision. Defendant further testified that, when the light turned green, plaintiffs' vehicle moved forward a few feet before stopping again, at which time defendant's vehicle "tapped" the bumper of plaintiffs' vehicle. The record establishes that the accident occurred early on a Sunday afternoon, and there is no dispute that the traffic was not heavy ( cf. Herdendorf, 43 AD3d at 1429-1430; Ruzycki, 301 AD2d at 50). We thus conclude on the record before us that the court properly denied plaintiffs' motion.