Opinion
No. 2887 Index No. 152638/23 Case No. 2023-06521
10-24-2024
Justin Perez, Plaintiff-Appellant, v. The City of New York et al., Defendants-Respondents.
Law Office of Michael LoGiudice, LLP, Brewster (Patrice M. Coleman of counsel), for appellant. Muriel Goode-Trufant, Acting Corporation Counsel, New York (Shane A. Magnetti of counsel), for respondents.
Law Office of Michael LoGiudice, LLP, Brewster (Patrice M. Coleman of counsel), for appellant.
Muriel Goode-Trufant, Acting Corporation Counsel, New York (Shane A. Magnetti of counsel), for respondents.
Before: Oing, J.P., Singh, Gesmer, González, Pitt-Burke, JJ.
Order, Supreme Court, New York County (J. Machelle Sweeting, J.), entered September 29, 2023, which denied plaintiff's motion for summary judgment on liability and to strike defendants' affirmative defense alleging comparative fault, unanimously reversed, on the law, without costs, and the motion granted.
Plaintiff sustained his prima facie burden of establishing his entitlement to summary judgment on liability by submitting evidence establishing that defendants' vehicle collided with the rear of his vehicle as he was attempting to make a right turn (see Kalair v Fajerman, 202 A.D.3d 625, 626 [1st Dept 2022]). In opposition, defendants failed to provide a nonnegligent explanation for the collision (see Baez-Pena v MM Truck and Body Repair, Inc., 151 A.D.3d 473, 476 [1st Dept 2017]). Defendants failed to demonstrate that defendant driver maintained a safe following distance (Vehicle and Traffic Law § 1129 [a]; see Chame v Kronen, 150 A.D.3d 622 [1st Dept 2017]), or that he could have "reasonably expected that traffic would continue unimpeded" under the circumstances (Baez-Pena, 151 A.D.3d at 477).
Plaintiff's sudden turn or failure to signal, in itself, is insufficient to rebut the presumption of negligence (see Cabrera v Rodriguez, 72 A.D.3d 553, 553 [1st Dept 2010]). Contrary to defendants' contention, there is no evidence that plaintiff having previously double-parked before the collision or proceeding with his flashing hazard lights on had any bearing on defendant driver's failure to maintain a safe distance from plaintiff's vehicle, which he saw moving before the collision occurred (see Vespe v Kazi, 62 A.D.3d 408, 409 [1st Dept 2009]). Nor is there evidence that plaintiff's vehicle turned suddenly or abruptly changed lanes (see Hernadez v Advance Tr. Co., Inc., 101 A.D.3d 483, 484 [1st Dept 2012]). In addition, a wet roadway does not constitute a sufficient nonnegligent explanation for a collision (see LaMasa v Bachman, 56 A.D.3d 340, 340 [1st Dept 2008]).
Supreme Court should have dismissed defendants' affirmative defense of comparative negligence because defendants' failure to maintain a safe distance from plaintiff's vehicle was the sole proximate cause of the collision (see Chowdry v Matos, 118 A.D.3d 488 [1st Dept 2014]).