Cheow v. Cheng Lin Jin

• Decision Date: 29 October 2014
• Docket Number: 2014-03804, Index No. 14942/13.
• Citation: 995 N.Y.S.2d 186,2014 N.Y. Slip Op. 07337,121 A.D.3d 1058
• Court: New York Supreme Court — Appellate Division
• Parties: Mei F. CHEOW, et al., appellants, v. CHENG LIN JIN, et al., respondents.

121 A.D.3d 1058

995 N.Y.S.2d 186

2014 N.Y. Slip Op. 07337

Mei F. CHEOW, et al., appellants

v.CHENG LIN JIN, et al., respondents.

2014-03804, Index No. 14942/13.

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

Oct. 29, 2014.

Subin Associates, LLP, New York, N.Y. (Robert J. Eisen of counsel), for appellants.

Gallo Vitucci Klar LLP, New York, N.Y. (Heather C. Ragone and Mary L. Maloney of counsel), for respondents.

MARK C. DILLON, J.P., L. PRISCILLA HALL, LEONARD B. AUSTIN, and BETSY BARROS, JJ.

Opinion

In an action to recover damages for personal injuries, the plaintiffs appeal from an order of the Supreme Court, Queens County (McDonald, J.), entered February 10, 2014, which denied their motion for summary judgment on the issue of liability.

ORDERED that the order is reversed, on the law, with costs, and the plaintiffs' motion for summary judgment on the issue of liability is granted.

On June 3, 2013, a vehicle operated by the defendant Cheng Lin Jin and owned by the defendant Skyliner Travel (hereinafter Skyliner) struck the rear of a vehicle operated by the plaintiff Pow Choo Chung while both vehicles were traveling on Woodhaven Boulevard, at or near its intersection with Wetherole Street, in Queens. As a result of the accident, Pow Choo Chung and the plaintiff Mei F. Cheow, who was a passenger in the vehicle operated by Pow Choo Chung, allegedly were injured.

After commencing this action against Cheng Lin Jin and Skyliner to recover damages for personal injuries, the plaintiffs moved for summary judgment on the issue of liability, asserting that the defendants were solely liable for the accident as a matter of law. The Supreme Court denied the motion. We reverse.

The driver of an automobile is required to maintain a safe distance between his or her own vehicle and the vehicle in front of him or her (see Vehicle and Traffic Law § 1129[a] ; Billis v. Tunjian, 120 A.D.3d 1168, 992 N.Y.S.2d 319 ; Byrne v. Calogero, 96 A.D.3d 704, 705, 945 N.Y.S.2d 737 ; Fajardo v. City of New York, 95 A.D.3d 820, 820–821, 943 N.Y.S.2d 587 ; Zweeres v. Materi, 94 A.D.3d 1111, 1111, 942 N.Y.S.2d 625 ). 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, thereby requiring that operator to rebut the inference of negligence by providing a nonnegligent explanation for the collision (see Billis v. Tunjian, 120 A.D.3d at 1168, 992 N.Y.S.2d 319 ; Amador v. City of New York, 120 A.D.3d 526, 991 N.Y.S.2d 637 ). Once the movant has established his or her entitlement to judgment as a matter of law, the burden shifts to the opposing party to provide sufficient evidence to raise a triable issue of fact as to the moving party's comparative fault (see Lu Yuan Yang v. Howsal Cab Corp., 106 A.D.3d at 1056, 966 N.Y.S.2d 167 ; Sirot v. Troiano, 66 A.D.3d 763, 764, 886 N.Y.S.2d 504 ). A bare allegation that the lead vehicle stopped short is insufficient to rebut the inference of negligence on the part of the driver of the following vehicle (see Billis v. Tunjian, 120 A.D.3d at 1168, 992 N.Y.S.2d 319 ; Xian Hong Pan v. Buglione, 101 A.D.3d 706, 707, 955 N.Y.S.2d 375 ; Staton v. Ilic, 69 A.D.3d 606, 606, 892 N.Y.S.2d 486 ).

Here, the plaintiffs met their prima facie burden of establishing their entitlement to judgment as a matter of law through Pow Choo Chung's sworn affidavit, in which she attested that the plaintiffs' vehicle was stopped for 10 to 15 seconds on Woodhaven...