Hauswirth v. Transcare N.Y., Inc.

• Decision Date: 25 July 2012
• Citation: 2012 N.Y. Slip Op. 05723,97 A.D.3d 792,949 N.Y.S.2d 154
• Parties: Rosalie HAUSWIRTH, respondent, v. TRANSCARE NEW YORK, INC., et al., defendants third-party plaintiffs-respondents-appellants; Ann Soehngen, third-party defendant-appellant.
• Court: New York Supreme Court — Appellate Division

97 A.D.3d 792

949 N.Y.S.2d 154

2012 N.Y. Slip Op. 05723

Rosalie HAUSWIRTH, respondent,

v.TRANSCARE NEW YORK, INC., et al., defendantsthird-party plaintiffs-respondents-appellants;Ann Soehngen, third-party defendant-appellant.

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

July 25, 2012.

Sweetbaum & Sweetbaun, Lake Success, N.Y. (Marshall D. Sweetbaum of counsel), for third-party defendant-appellant.

Lewis Brisbois Bisgaard & Smith, LLP, New York, N.Y. (Nicholas P. Hurzeler and Gregory S. Katz of counsel), for defendants-third-partyplaintiffs-respondents-appellants.

Zemsky & Salomon, P.C., Hempstead, N.Y. (David Zemsky of counsel), for respondent.

MARK C. DILLON, J.P., JOHN M. LEVENTHAL, LEONARD B. AUSTIN, and SHERI S. ROMAN, JJ.

In an action to recover damages for personal injuries, the third-party defendant appeals from so much of an order of the Supreme Court, Kings County(Silber, J.), dated November 10, 2011, as denied her motion for summary judgment dismissing the third-party complaint, and the defendants third-partyplaintiffs cross-appeal from so much of the same order as granted the plaintiff's motion for summary judgment on the issue of liability.

ORDERED that the order is reversed insofar as appealed from, on the law, and the motion of the third-party defendant for summary judgment dismissing the third-party complaint is granted; and it is further,

ORDERED that the order is affirmed insofar as cross-appealed from; and it is further,

ORDERED that one bill of costs is awarded to the third-party defendant and the plaintiff.

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 or her vehicle, and to exercise reasonable care to avoid colliding with the other vehicle ( seePower v. Hupart,260 A.D.2d 458, 688 N.Y.S.2d 194;see alsoVehicle and Traffic Law § 1129[a] ).Drivers have a duty to see what should be seen and to exercise reasonable care under the circumstances to avoid an accident ( seeMaragos v. Sakurai,92 A.D.3d 922, 923, 938 N.Y.S.2d 908;Balducci v. Velasquez,92 A.D.3d 626, 628, 938 N.Y.S.2d 178;Filippazzo v. Santiago,277 A.D.2d 419, 716 N.Y.S.2d 710;Johnson v. Phillips,261 A.D.2d 269, 690 N.Y.S.2d 545).However, a driver also has the duty “to not stop suddenly or slow down without proper signaling so as to avoid a collision”( Drake v. Drakoulis,304 A.D.2d 522, 523, 756 N.Y.S.2d 881;seePurcell v. Axelsen,286 A.D.2d 379, 380, 729 N.Y.S.2d 495;Colonna v. Suarez,278 A.D.2d 355, 355, 718 N.Y.S.2d 618;see alsoVehicle and Traffic Law § 1163).

“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[internal quotation marks omitted];seeTutrani v. County of Suffolk,10 N.Y.3d 906, 908, 861 N.Y.S.2d 610, 891 N.E.2d 726;Martinez v. Martinez,93 A.D.3d 767, 768, 941 N.Y.S.2d 189;Giangrasso v. Callahan,87 A.D.3d 521, 928 N.Y.S.2d 68;Parra v. Hughes,79 A.D.3d 1113, 914 N.Y.S.2d 249;DeLouise v. S.K.I. Wholesale Beer Corp.,75 A.D.3d 489, 490, 904 N.Y.S.2d 761;Staton v. Ilic,69 A.D.3d 606, 892 N.Y.S.2d 486;Lampkin v. Chan,68 A.D.3d 727, 891 N.Y.S.2d 113;Klopchin v. Masri,45 A.D.3d 737, 737, 846 N.Y.S.2d 311).Evidence that a vehicle was struck in the rear and propelled into the vehicle in front of it may provide a sufficient nonnegligentexplanation ( seeKatz v. Masada II Car & Limo Serv., Inc.,43 A.D.3d 876, 877, 841 N.Y.S.2d 370;Harris v. Ryder,292 A.D.2d 499, 500, 739 N.Y.S.2d 195).

The plaintiff and Ann Soehngen, the third-party defendant, established in support of their respective motions for summary judgment that both of their vehicles were at a complete stop when a vehicle operated by the defendantAndrew Peter Cimino and owned by the defendantTranscare New York, Inc.(hereinafter together Transcare), struck the plaintiff's vehicle in the rear, which propelled the plaintiff's vehicle into the rear of Soehngen's vehicle.They also established on their respective motions that Cimino, just prior to the impact of his vehicle with the rear of the plaintiff's vehicle, took his eyes from the road, and when he turned his attention back to the road, he saw the plaintiff's vehicle already stopped behind Soehngen's vehicle, but was unable to stop in time to avoid striking the plaintiff's vehicle in the rear.

Under these circumstances, Soehngen established her prima facie entitlement to judgment as a matter of law by demonstrating that her vehicle...