Caputo v. Schaumeyer, 1
| Decision Date | 13 July 1998 |
| Docket Number | No. 1,No. 2,1,2 |
| Citation | 675 N.Y.S.2d 372,252 A.D.2d 512 |
| Parties | , 1998 N.Y. Slip Op. 6998 Eileen CAPUTO, et al., Plaintiffs-Respondents, v. Lillian A. SCHAUMEYER, Appellant, Kenneth B. Faerber, et al., Defendants-Respondents. (Action) Susan THOMAS, et al., Plaintiffs, v. Lillian A. SCHAUMEYER, Appellant, Kenneth B. Faerber, et al., Respondents, et al., Defendant. (Action) |
| Court | New York Supreme Court — Appellate Division |
Frank V. Merlino, Lake Success, N.Y. (Sweetbaum & Sweetbaum [Marshall D. Sweetbaum] of counsel), for appellant.
MILLER, J.P., SULLIVAN, FRIEDMANN and McGINITY, JJ.
MEMORANDUM BY THE COURT.
In two related actions to recover damages for personal injuries, etc., Lillian A. Schaumeyer, a defendant in Action Nos. 1 and 2, appeals, as limited by her notice of appeal and brief, from so much of an order of the Supreme Court, Queens County (Kitzes, J.), dated October 31, 1997, as denied those branches of her cross motion which were for summary judgment dismissing the complaint in Action No. 1 insofar as asserted against her and all cross claims insofar as asserted against her in Action Nos. 1 and 2.
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, the appellant's cross motion is granted, the complaint in Action No. 1 and all cross claims in Action Nos. 1 and 2 are dismissed insofar as asserted against her, and the actions against the remaining defendants are severed.
When a driver approaches another vehicle from the rear, he is bound to maintain a reasonably safe rate of speed and use reasonable care to avoid colliding with the other vehicle (see, Barile v. Lazzarini, 222 A.D.2d 635, 635 N.Y.S.2d 694; Benyarko v. Avis Rent A Car Sys., 162 A.D.2d 572, 573, 556 N.Y.S.2d 761; Young v. City of New York, 113 A.D.2d 833, 834, 493 N.Y.S.2d 585). Thus, a rear-end collision into a stopped vehicle establishes a prima facie case of negligence on the part of the operator of the moving vehicle and imposes a duty of explanation on that operator to rebut the inference of negligence created by the 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).
The proof submitted upon the appellant's cross motion for summary judgment was sufficient to establish, as a matter of law, that she was at a complete stop when she was struck in the rear by the vehicle operated by the defendant Kenneth B. Faerber and owned by the defendant Clifton Elevator Service, and...
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...v City of New York, 205 A.D.2d 583 (2nd Dept.1994); Power v. Hupart, 260 A.D.2d 458 (2nd Dept. 1999); see, also, Caputo v. Schaumeyer, 252 A.D.2d 512 (2nd Dept. 1998); Danza v. Longieliere, 256 A.D.2d 434 (2nd Dept. In support of the motion, plaintiff contends that its first and second caus......
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...maintain a reasonably safe rate of speed and use reasonable care to avoid colliding with the other vehicle." (Caputo v. Schumeyer, 252 A.D.2d 514, 675 N.Y.S.2d 372 [2nd Dept. 1998]) In opposition thereto, the defendant has submitted an affirmation of his counsel which raises no issue of fac......
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