Bene v. Dalessio

• Decision Date: 13 January 2016
• Citation: 135 A.D.3d 679,22 N.Y.S.3d 237
• Parties: Joseph BENE, appellant, v. Lynn DALESSIO, et al., respondents.
• Court: New York Supreme Court — Appellate Division

135 A.D.3d 679

22 N.Y.S.3d 237

Joseph BENE, appellant,

v.Lynn DALESSIO, et al., respondents.

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

Jan. 13, 2016.

Gash & Associates, P.C., White Plains, N.Y. (Louis A. Badolato of counsel), for appellant.

Bryan M. Kulak (Russo, Apoznanski & Tambasco, Melville, N.Y. [Susan J. Mitola], of counsel), for respondents.

WILLIAM F. MASTRO, J.P., LEONARD B. AUSTIN, JOSEPH J. MALTESE, and BETSY BARROS, JJ.

In an action to recover damages for personal injuries, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Westchester County (Zuckerman, J.), dated June 3, 2015, as denied that branch of his motion which was for summary judgment on the issue of liability.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the plaintiff's motion which was for summary judgment on the issue of liability is granted.

The plaintiff allegedly was injured when a vehicle he was operating was struck in the rear by a vehicle operated by the defendant Stephanie Dalessio and owned by the defendant Lynn Dalessio.

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 in order to rebut the inference of negligence (see Tutrani v. County of Suffolk, 10 N.Y.3d 906, 861 N.Y.S.2d 610, 891 N.E.2d 726 ; Drakh v. Levin, 123 A.D.3d 1084, 1 N.Y.S.3d 202 ; Hauswirth v. Transcare N.Y., Inc., 97 A.D.3d 792, 794, 949 N.Y.S.2d 154 ; Napolitano v. Galletta, 85 A.D.3d 881, 925 N.Y.S.2d 163 ; Volpe v. Limoncelli, 74 A.D.3d 795, 795, 902 N.Y.S.2d 152 ; Ahmad v. Grimaldi, 40 A.D.3d 786, 834 N.Y.S.2d 480 ; Purcell v. Axelsen, 286 A.D.2d 379, 729 N.Y.S.2d 495 ). The plaintiff established his prima facie entitlement to judgment as a matter of law on the issue of liability by submitting evidence demonstrating that he had been stopped in traffic for about 30 seconds when he was rear-ended by the defendants' vehicle (see Sokolowska v. Song, 123 A.D.3d 1004, 1005, 999 N.Y.S.2d 847 ; Lisetskiy v. Weiss, 123 A.D.3d 775, 777, 999 N.Y.S.2d 83 ; Gallo v. Jairath, 122 A.D.3d 795, 797, 996 N.Y.S.2d 682 ). In opposition, the defendants failed to raise a triable issue of fact. The defendant driver's contention that the plaintiff's vehicle came to a sudden stop was conclusory and insufficient, in and of itself, to provide a nonnegligent explanation for the rear-end collision (see Brothers v. Bartling, 130 A.D.3d 554, 556, 13 N.Y.S.3d 202 ; Xian Hong Pan v. Buglione, 101 A.D.3d 706, 707, 955 N.Y.S.2d 375 ). Furthermore, the defendant driver's contention that she did not recall seeing brake lights or any other illumination on the plaintiff's vehicle prior to the collision was also insufficient to raise...