Barile v. Lazzarini

• Decision Date: 29 December 1995
• Citation: 635 N.Y.S.2d 694,222 A.D.2d 635
• Parties: Vincenzo BARILE, et al., Plaintiffs-Respondents, v. Philip J. LAZZARINI, et al., Defendants-Respondents, Leonardo Iovino, et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 694

635 N.Y.S.2d 694

222 A.D.2d 635

Vincenzo BARILE, et al., Plaintiffs-Respondents, v. Philip J. LAZZARINI, et al., Defendants-Respondents, Leonardo Iovino, et al., Appellants.

Supreme Court, Appellate Division,

Second Department.

Dec. 29, 1995.

Robert P. Sweeney, Great Neck (Keith Edmund Ford, of counsel), for appellants.

Jacoby & Meyers, Melville (Alvin J. Gothardt, of counsel), for plaintiffs-respondents.

Downing & Mehrtens, P.C., New York City (Marguerite D. Peck, of counsel), for defendants-respondents.

Before COPERTINO, J.P., and PIZZUTO, SANTUCCI and JOY, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries, etc., the defendants Leonardo Iovino and Iovino Mason Contracting, Inc., appeal from an order of the Supreme Court, Nassau County (Winick, J.), dated September 9, 1994, which denied their motion for summary judgment dismissing the complaint and cross claims insofar as asserted against them.

ORDERED that the order is reversed, on the law, with costs, the appellants' motion is granted, and the complaint and cross claims insofar as they are asserted against the appellants are dismissed.

This action arises out of a two-vehicle collision in which a truck driven by the defendant Leonardo Iovino and owned by the defendant Iovino Mason Contracting, Inc. (hereinafter the appellants) and in which the plaintiff Vincenzo Barile was a passenger, was hit in the rear by a van driven by the defendant Philip J. Lazzarini and owned by the defendant Germinsky Electrical Co., Inc. (hereinafter the defendants-respondents), at the end of an exit ramp that merged into the service road off the Long Island Expressway. In opposition to the appellants' motion for summary judgment, the defendants-respondents submitted the deposition testimony of Lazzarini, in which he claimed that, although he saw the truck at the end of the exit, about three car lengths or 54 feet in front of him, he did not see any signal lights or hand signals indicating that the truck was stopped. The Supreme Court denied the appellants' motion for summary judgment. We reverse.

A rear-end collision into a stopped automobile creates a prima facie case of liability with respect to the operator of the moving vehicle, imposing a duty of explanation on its operator (see, Gambino v. City of New York, 205 A.D.2d 583, 613 N.Y.S.2d 417; Starace v. Inner Circle Qonexions, Inc., 198 A.D.2d 493, 604 N.Y.S.2d 179; Edney v. Metropolitan Suburban Bus Auth., 178 A.D.2d 398, 577 N.Y.S.2d 102; Benyarko v. Avis Rent A Car Sys., 162 A.D.2d 572, 573, 556 N.Y.S.2d 761). The operator is required to rebut the inference of negligence created by the unexplained rear-end collision (see, Pfaffenbach v. White Plains Express Corp., 17 N.Y.2d 132, 135, 269 N.Y.S.2d 115, 216 N.E.2d 324), since the operator of the moving vehicle is in a better position "to excuse the collision either through a mechanical failure, or a sudden stop of the vehicle ahead, or an unavoidable skidding on a wet pavement, or any other reasonable cause" (Carter v. Castle Elec. Contracting Co., 26 A.D.2d 83, 85, 271 N.Y.S.2d 51). If the operator cannot come forward with any evidence to rebut the inference of negligence, the plaintiff may properly be awarded judgment as a matter of law (see, Starace v. Inner Circle Qonexions, supra, 198 A.D.2d at 493, 604...