Lapierre v. Love

• Decision Date: 14 November 2012
• Citation: 954 N.Y.S.2d 154,100 A.D.3d 713,2012 N.Y. Slip Op. 07639
• Parties: Ludwyka LAPIERRE, respondent, v. Penni LOVE, appellant.
• Court: New York Supreme Court — Appellate Division

100 A.D.3d 713
954 N.Y.S.2d 154
2012 N.Y. Slip Op. 07639

Ludwyka LAPIERRE, respondent,
v.
Penni LOVE, appellant.

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

Nov. 14, 2012.

[954 N.Y.S.2d 155]

Morris Duffy Alonso & Faley, New York, N.Y. (Anna J. Ervolina and Andrea M. Alonso of counsel), for appellant.

Neil Moldovan, P.C., Carle Place, N.Y. (Ellen Zweig of counsel), for respondent.

REINALDO E. RIVERA, J.P., DANIEL D. ANGIOLILLO, CHERYL E. CHAMBERS, and SHERI S. ROMAN, JJ.

[100 A.D.3d 713]In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Nassau County (Parga, J.), dated July 26, 2011, which denied her motion[100 A.D.3d 714]for summary judgment dismissing the complaint and granted the plaintiff's cross motion for summary judgment on the issue of liability.

ORDERED that the order is affirmed, with costs.

“ ‘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;Pollard v. Independent Beauty & Barber Supply Co., 94 A.D.3d 845, 845–846, 942 N.Y.S.2d 360;Balducci v. Velasquez, 92 A.D.3d 626, 628, 938 N.Y.S.2d 178;Perez v. Roberts, 91 A.D.3d 620, 621, 936 N.Y.S.2d 259;Kastritsios v. Marcello, 84 A.D.3d 1174, 1174–1175, 923 N.Y.S.2d 863). Here, in support of her cross motion for summary judgment on the issue of liability, the plaintiff established, prima facie, her entitlement to judgment as a matter of law by demonstrating that her vehicle was stopped when it was struck in the rear by the defendant's vehicle.

In opposition, the defendant failed to raise a triable issue of fact. As properly found by the Supreme Court, under the doctrine of collateral estoppel, the defendant is precluded from asserting

[954 N.Y.S.2d 156]

that, at the time of the accident, she was faced with an emergency situation which caused her to strike the plaintiff's vehicle. “Under the doctrine of collateral estoppel, a party is precluded ‘from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party or those...