Beloff v. Gerges

• Decision Date: 11 January 2011
• Citation: 915 N.Y.S.2d 242,80 A.D.3d 460
• Parties: Ivy BELOFF, Plaintiff-Respondent, v. Samy GERGES, et al., Defendants-Appellants, Ralph Rodriguez, Jr., et al., Defendants-Respondents.
• Court: New York Supreme Court — Appellate Division

915 N.Y.S.2d 242

80 A.D.3d 460

Ivy BELOFF, Plaintiff-Respondent,

v. Samy GERGES, et al., Defendants-Appellants,Ralph Rodriguez, Jr., et al., Defendants-Respondents.

Supreme Court, Appellate Division, First Department, New York.

Jan. 11, 2011.

Cascone & Kluepfel, LLP, Garden City (Michael T. Reagan of counsel), for appellants.

Bennett & Moy, LLP, New York (Alan J. Bennett of counsel), for Ivy Beloff, respondent.

Wallace D. Gossett, Brooklyn (Jane Shufer of counsel), for Ralph Rodriguez, Jr., Manhattan and Bronx Surface Transit Operating Authority and New York City Transit Authority, respondents.

TOM, J.P., ANDRIAS, SAXE, FREEDMAN, MANZANET-DANIELS, JJ.

Order, Supreme Court, New York County (Michael D. Stallman, J.), entered April 20, 2010, which, insofar as appealed from, in this action for personal injuries, denied defendants Samy Gerges and Morgan Limo Trade Corp.'s motion for summary judgment dismissing the complaint as against them, unanimously reversed, on the law, without costs, the motion granted, and the complaint dismissed as to appellants. The Clerk is directed to enter judgment accordingly.

Plaintiff and her daughter were rear seat passengers in a taxi driven by defendant Gerges and owned by Morgan Limo. While the taxi was stopped on First Avenue at or near the intersection with East 79th Street, it was struck in the rear by an uptown M-15 bus. The driver of the bus offered no explanation, non-negligent or otherwise, for the collision.

Defendants Gerges and Morgan Limo were entitled to summary judgment in their favor. Under New York law, "a rear-end collision with a stopped vehicle establishes a prima facie case of negligence on the part of the operator of the second vehicle," and the injured occupants of the front vehicle are entitled to summary judgment on liability unless the driver of the following vehicle can provide a non-negligent explanation for the accident ( Figueroa v. Luna, 281 A.D.2d 204, 206, 721 N.Y.S.2d 635 [2001] [internal quotation marks and citation omitted] ). We reject plaintiff's contention that the testimony of her daughter established that the taxi was not lawfully stopped, and therefore, furnished a non-negligent explanation for the stop that would deprive the driver of thebenefit of the presumption of negligence. The daughter was seated in the rear of the taxi on the right hand, or curb side. She assumed, based on the distance of the taxi from the curb, that the taxi's rear end must have protruded into the next lane of...