Brothers v. Bartling

• Decision Date: 01 July 2015
• Docket Number: 2014-07559
• Citation: 2015 N.Y. Slip Op. 05630,130 A.D.3d 554,13 N.Y.S.3d 202
• Parties: Sameera N. BROTHERS, et al., plaintiffs-respondents, v. Susan L. BARTLING, et al., defendants-respondents, Cynthia Price, et al., appellants.
• Court: New York Supreme Court — Appellate Division

130 A.D.3d 554

13 N.Y.S.3d 202

2015 N.Y. Slip Op. 05630

Sameera N. BROTHERS, et al., plaintiffs-respondents

v. Susan L. BARTLING, et al., defendants-respondentsCynthia Price, et al., appellants.

2014-07559

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

July 1, 2015.

James G. Bilello (Russo, Apoznanski & Tambasco, Melville, N.Y. [Susan J. Mitola], of counsel), for appellants.

WILLIAM F. MASTRO, J.P., CHERYL E. CHAMBERS, SHERI S. ROMAN, and HECTOR D. LaSALLE, JJ.

Opinion

In an action to recover damages for personal injuries, the defendants Cynthia Price and Kenneth Gill appeal, as limited by their brief, from so much of an order of Supreme Court, Kings County (Velasquez, J.), dated March 19, 2014, as denied their motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against them.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the motion of the defendants Cynthia Price and Kenneth Gill for summary judgment dismissing the complaint and all cross claims insofar as asserted against them is granted.

This action arises out of a two-vehicle accident that occurred on South Conduit Avenue where it merges with the Belt Parkway in Queens on June 17, 2011. The plaintiffs, Sameera N. Brothers and Lisa M. Slocumb, were passengers in a vehicle owned by the defendants Cynthia Price and Kenneth Gill, and operated by Gill, when it was struck in the rear by a vehicle owned by the defendant Susan L. Bartling, and operated by the defendant Jeffrey D. Roux. The plaintiffs commenced this action against the defendants to recover damages for personal injuries. Price and Gill moved for summary judgment dismissing the complaint and all cross claims insofar as asserted against them. The Supreme Court denied the motion.

“When the driver of an automobile approaches another automobile from the rear, he or she is bound to maintain a reasonably safe rate of speed and control over his vehicle, and to exercise reasonable care to avoid colliding with the other vehicle” (Gaeta v. Carter, 6 A.D.3d 576, 576, 775 N.Y.S.2d 86 ; see Gallo v. Jairath, 122 A.D.3d 795, 796, 996 N.Y.S.2d 682 ; Taing v. Drewery, 100 A.D.3d 740, 741, 954 N.Y.S.2d 175 ; Ortiz v. Hub Truck Rental Corp., 82 A.D.3d 725, 918 N.Y.S.2d 156 ; Nsiah–Ababio v. Hunter, 78 A.D.3d 672, 913 N.Y.S.2d 659 ; see also Vehicle and Traffic Law § 1129[a] ).

“ ‘A rear-end collision with a stopped or stopping vehicle creates a prima facie case of negligence against the operator of the rear vehicle, thereby requiring that operator to rebut the inference of negligence by providing a nonnegligent explanation for the collision’ ” (Volpe v. Limoncelli, 74 A.D.3d 795, 795, 902 N.Y.S.2d 152, quoting Klopchin v. Masri, 45 A.D.3d 737, 737, 846 N.Y.S.2d 311 ; see Tutrani v. County of Suffolk, 10 N.Y.3d 906, 908, 861 N.Y.S.2d 610, 891 N.E.2d 726 ; Le Grand v. Silberstein, 123 A.D.3d 773, 999 N.Y.S.2d 96 ; Williams v. Spencer–Hall, 113 A.D.3d 759, 760, 979 N.Y.S.2d 157 ).

A nonnegligent explanation for a rear-end collision may include evidence of a sudden stop of the lead vehicle (see Le Grand v. Silberstein,

123 A.D.3d at 773, 999 N.Y.S.2d 96 ; Amador v. City of New York, 120 A.D.3d 526, 526, 991 N.Y.S.2d 637 ; Ramos v. TC Paratransit, 96 A.D.3d 924, 946 N.Y.S.2d 644 ). However, “vehicle stops which are foreseeable under the prevailing traffic conditions, even if sudden and frequent, must be anticipated by the driver who follows, since he or she is under a duty to maintain a safe distance between his or her car and the car ahead” (Shamah v. Richmond County Ambulance Serv., 279 A.D.2d 564, 565, 719 N.Y.S.2d 287 ; see Le Grand v. Silberstein, 123 A.D.3d at 773, 999 N.Y.S.2d 96 ; Gutierrez v. Trillium USA, LLC, 111 A.D.3d 669, 671, 974 N.Y.S.2d 563 ; Robayo v. Aghaabdul, 109 A.D.3d 892, 893, 971 N.Y.S.2d 317 ). Moreover, “ [a] conclusory assertion by the operator of the following vehicle that the sudden stop of the vehicle caused the accident is insufficient, in and of itself, to provide a nonnegligent explanation” (Gutierrez v. Trillium, USA, LLC, 111 A.D.3d at 670–671, 974 N.Y.S.2d 563 ; see Le Grand v. Silberstein, 123 A.D.3d at 773, 999 N.Y.S.2d 96 ; Robayo v. Aghaabdul, 109 A.D.3d at 893, 971 N.Y.S.2d 317 ; Xian Hong Pan v. Buglione, 101 A.D.3d 706, 707, 955 N.Y.S.2d 375 ).

Here, Price and Gill established their prima facie entitlement to judgment as a matter of law through the deposition testimony of Gill and the...