Opinion
2018–06835 (Index No. 709679/16)
04-10-2019
Maria JIMENEZ, Appellant, v. Tennelle D. RAMIREZ, et al., Defendants, Sezgin Canturk, et al., Respondents.
Subin Associates, LLP, New York, N.Y. (Robert J. Eisen and Pollack Pollack Isaac & DeCicco [Brian J. Isaac and Jillian Rosen ], of counsel), for appellant. Russo & Tambasco, Melville, N.Y. (Yamile R. Al–Sullami of counsel), for defendants Tennelle D. Ramirez and Girardo I. Ramirez.
Subin Associates, LLP, New York, N.Y. (Robert J. Eisen and Pollack Pollack Isaac & DeCicco [Brian J. Isaac and Jillian Rosen ], of counsel), for appellant.
Russo & Tambasco, Melville, N.Y. (Yamile R. Al–Sullami of counsel), for defendants Tennelle D. Ramirez and Girardo I. Ramirez.
JOHN M. LEVENTHAL, J.P., BETSY BARROS, FRANCESCA E. CONNOLLY, ANGELA G. IANNACCI, JJ.
DECISION & ORDERIn an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Frederick D.R. Sampson, J.), entered April 24, 2018. The order denied the plaintiff's motion for summary judgment on the issue of liability against the defendants Sezgin Canturk and TNT Automotive Corp.
ORDERED that the order is affirmed, without costs or disbursements.
The plaintiff allegedly sustained injuries when her vehicle was struck in the rear by a vehicle operated by the defendant Tennelle D. Ramirez and owned by the defendant Girardo I. Ramirez (hereinafter the Ramirez vehicle). Prior to the collision between the plaintiff's vehicle and the Ramirez vehicle, the Ramirez vehicle was struck in the rear by a vehicle operated by the defendant Sezgin Canturk and owned by the defendant TNT Automotive Corp. (hereinafter the TNT vehicle). The plaintiff commenced this action against Tennelle D. Ramirez and Girardo I. Ramirez (hereinafter together the Ramirez defendants), as well as Canturk and TNT Automotive Corp. (hereinafter together the TNT defendants). Before depositions were conducted, the plaintiff moved for summary judgment on the issue of liability against the TNT defendants. The Supreme Court denied the motion, and 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" ( Nsiah–Ababio v. Hunter, 78 A.D.3d 672, 672, 913 N.Y.S.2d 659 ; see Vehicle and Traffic Law § 1129[a] ; Russell v. J.L. Femia Landscape Servs., Inc., 161 A.D.3d 1119, 1120, 77 N.Y.S.3d 121 ). 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 to rebut the inference of negligence (see Tutrani v. County of Suffolk, 10 N.Y.3d 906, 908, 861 N.Y.S.2d 610, 891 N.E.2d 726 ; Tsyganash v. Auto Mall Fleet Mgt., Inc., 163 A.D.3d 1033, 1034, 83 N.Y.S.3d 74 ; Edgerton v. City of New York, 160 A.D.3d 809, 810, 74 N.Y.S.3d 617 ).
Here, the plaintiff failed to establish her prima facie entitlement to judgment as a matter of law on the issue of liability insofar as asserted against the TNT defendants. The plaintiff's affidavit, submitted in support of her motion, demonstrated that the plaintiff had no first-hand knowledge of the facts surrounding the collision between the Ramirez vehicle and the TNT vehicle, including when it occurred relative to the collision between the Ramirez vehicle and her own vehicle. The plaintiff's affidavit also showed that the plaintiff learned about the collision between the Ramirez vehicle and the TNT vehicle only after her vehicle had been struck in the rear by the Ramirez vehicle. Accordingly, the plaintiff failed to demonstrate that the Ramirez vehicle was propelled into her vehicle as a result of being struck in the rear by the TNT vehicle. The plaintiff also failed to demonstrate that the driver of the TNT vehicle, which never came into contact with the plaintiff's vehicle, was negligent in causing the plaintiff's injuries (see Hartfield v. Seenarraine, 138 A.D.3d 1060, 1061, 30 N.Y.S.3d 316 ). With respect to the police accident report submitted in support of the motion, the statement in the report's description of the accident that an impact to the rear of the Ramirez vehicle propelled it into the plaintiff's vehicle was not explicitly attributed to any witness and constituted inadmissible hearsay (see Ardanuy v. RB Juice, LLC, 164 A.D.3d 1296, 1297, 83 N.Y.S.3d 634 ; Hartfield v. Seenarraine, 138 A.D.3d at 1061, 30 N.Y.S.3d 316 ; Memenza v. Cole, 131 A.D.3d 1020, 1022–1023, 16 N.Y.S.3d 287 ; Baldwin v. Mateogarcia, 57 A.D.3d 594, 595, 869 N.Y.S.2d 217 ).
Accordingly, we agree with the Supreme Court's determination to deny the plaintiff's motion for summary judgment on the issue of liability against the TNT defendants, regardless of the sufficiency of the opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 ).
We decline the Ramirez defendants' request that we search the record and award summary judgment dismissing the complaint insofar as asserted against them.
LEVENTHAL, J.P., BARROS, CONNOLLY and IANNACCI, JJ., concur.