Delvalle v. Mercedes Benz USA, LLC
| Decision Date | 17 April 2012 |
| Citation | 942 N.Y.S.2d 204,2012 N.Y. Slip Op. 02835,94 A.D.3d 942 |
| Parties | Danny DELVALLE, plaintiff-respondent, v. MERCEDES BENZ USA, LLC, et al., appellants;Chetum Singh, et al., third-party defendants,Louis A. Remond, third-party defendant-respondent. |
| Court | New York Supreme Court — Appellate Division |
OPINION TEXT STARTS HERE
Buckley, Zinober & Curtis, P.A., New York, N.Y. (Alan R. Levy of counsel), for appellants.
Dinkes & Schwitzer, P.C., New York, N.Y. (Naomi J. Skura of counsel), for plaintiff-respondent.
Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y. (Stacy R. Seldin of counsel), for third-party defendant-respondent.RUTH C. BALKIN, J.P., ARIEL E. BELEN, L. PRISCILLA HALL, and ROBERT J. MILLER, JJ.
In an action to recover damages for personal injuries, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Bayne, J.), dated March 11, 2011, as granted the plaintiff's motion for summary judgment on the issue of liability and denied their cross motion for summary judgment dismissing the complaint.
ORDERED that the order is modified, on the law, by deleting the provision thereof granting the plaintiff's motion for summary judgment on the issue of liability and substituting therefor a provision denying the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.
A rear-end collision 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 Napolitano v. Galletta, 85 A.D.3d 881, 882, 925 N.Y.S.2d 163; Klopchin v. Masri, 45 A.D.3d 737, 846 N.Y.S.2d 311). Here, the plaintiff established his prima facie entitlement to judgment as a matter of law by demonstrating that the vehicle in which he was riding as a passenger was struck in the rear by the defendants' vehicle ( see Napolitano v. Galletta, 85 A.D.3d at 882, 925 N.Y.S.2d 163). In opposition, however, the defendants submitted the affidavit of the defendant driver, which provided a nonnegligent explanation for the collision ( id. at 882–883, 925 N.Y.S.2d 163; see Gregson v. Terry, 35 A.D.3d 358, 360–361, 827 N.Y.S.2d 181). Furthermore, the affidavit of the defendant driver raised a triable issue of fact as to the manner in which the accident occurred ( see Johnson v. Yarussi Constr., Inc., 74 A.D.3d 1772, 902 N.Y.S.2d 763; Boockvor v. Fischer, ...
To continue reading
Request your trial
-
Gutierrez v. Trillium USA, LLC
...942 N.Y.S.2d 360;see Tutrani v. County of Suffolk, 10 N.Y.3d 906, 908, 861 N.Y.S.2d 610, 891 N.E.2d 726;Delvalle v. Mercedes Benz USA, LLC, 94 A.D.3d 942, 942 N.Y.S.2d 204;Perez v. Roberts, 91 A.D.3d 620, 621, 936 N.Y.S.2d 259;Ramos v. TC Paratransit, 96 A.D.3d 924, 925, 946 N.Y.S.2d 644;Gi......
- Rivera v. Roman Catholic Diocese Brooklyn
-
Graham v. Kone, Inc.
...maintenance of, or control 12 N.Y.S.3d 547over, the subject instrumentality is at issue (see Del Vecchio v. Danielle Assoc., LLC, 94 A.D.3d at 942, 942 N.Y.S.2d 217 ; Watson v. FHE Servs., 257 A.D.2d 618, 684 N.Y.S.2d 283 ; Angerome v. City of New York, 237 A.D.2d 551, 655 N.Y.S.2d 990 ).He......
- Flores v. BAJ Holding Corp.