Opinion
2017–03586 Index No. 507430/16
03-27-2019
Luis G. MONTALVO, Respondent, v. Gianni CEDENO, et al., Appellants.
Nicolini, Paradise, Ferretti & Sabella, PLLC, Mineola, N.Y. (Alyssa L. Garone of counsel), for appellants. Omrani & Taub, P.C., New York, N.Y. (James L. Forde of counsel), for respondent.
Nicolini, Paradise, Ferretti & Sabella, PLLC, Mineola, N.Y. (Alyssa L. Garone of counsel), for appellants.
Omrani & Taub, P.C., New York, N.Y. (James L. Forde of counsel), for respondent.
RUTH C. BALKIN, J.P., CHERYL E. CHAMBERS, ROBERT J. MILLER, ANGELA G. IANNACCI, JJ.
DECISION & ORDER ORDERED that the order is affirmed insofar as appealed from, with costs.
The plaintiff allegedly was injured when his vehicle was struck in the rear by the defendants' vehicle at or near a T-intersection. The plaintiff thereafter commenced this action against the defendants to recover damages for personal injuries. After joinder of issue, but before any discovery was conducted, the plaintiff moved for summary judgment on the issue of liability. The defendants opposed the motion. The Supreme Court granted the plaintiff's motion, and the defendants appeal.
A plaintiff in a negligence action moving for summary judgment on the issue of liability must establish, prima facie, that the defendants breached a duty owed to the plaintiff and that the defendants' negligence was a proximate cause of the alleged injuries (see Rodriguez v. City of New York , 31 N.Y.3d 312, 76 N.Y.S.3d 898, 101 N.E.3d 366 ; Tsyganash v. Auto Mall Fleet Mgt., Inc. , 163 A.D.3d 1033, 1033–1034, 83 N.Y.S.3d 74 ). "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] ). 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, 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 at 1034, 83 N.Y.S.3d 74 ).
Here, the plaintiff's affidavit submitted in support of his motion established his prima facie entitlement to judgment as a matter of law. In it, he averred that his vehicle, which had been traveling eastbound, had stopped at a red traffic signal at an intersection, and that the plaintiff had activated his right-turn signal, intending to turn right. As soon as the traffic signal turned green, the plaintiff's vehicle was struck in the rear, propelling his vehicle across the intersection (see Odetalla v. Rodriguez , 165 A.D.3d 826, 85 N.Y.S.3d 560 ; Tumminello v. City of New York , 148 A.D.3d 1084, 1085, 49 N.Y.S.3d 739 ; Binkowitz v. Kolb , 135 A.D.3d 884, 885, 24 N.Y.S.3d 186 ). In opposition, the defendants failed to raise a triable issue of fact, as they did not submit evidence either denying the plaintiff's allegations or offering a nonnegligent explanation for the collision (see Tumminello v. City of New York , 148 A.D.3d at 1085, 49 N.Y.S.3d 739 ; Binkowitz v. Kolb , 135 A.D.3d at 885, 24 N.Y.S.3d 186 ; Plummer v. Nourddine , 82 A.D.3d 1069, 1070, 919 N.Y.S.2d 187 ; Mallen v. Su , 67 A.D.3d 974, 975, 890 N.Y.S.2d 79 ). Contrary to the defendants' contention, the plaintiff's motion was not premature (see CPLR 3212[f] ; Emil Norsic & Son, Inc. v. L.P. Transp., Inc. , 30 A.D.3d 368, 369, 815 N.Y.S.2d 736 ). Therefore, we agree with the Supreme Court's determination to consider the motion on its merits.
Accordingly, we agree with the Supreme Court's determination granting the plaintiff's motion for summary judgment on the issue of liability.
BALKIN, J.P., CHAMBERS, MILLER and IANNACCI, JJ., concur.