Profita v. Diaz

• Decision Date: 13 November 2012
• Citation: 2012 N.Y. Slip Op. 07604,100 A.D.3d 481,954 N.Y.S.2d 40
• Parties: Taramarie PROFITA, et al., Plaintiffs–Respondents, v. Juan DIAZ, et al., Defendants–Respondents, Benjamin O. Jones, et al., Defendants–Appellants.
• Court: New York Supreme Court — Appellate Division

100 A.D.3d 481

954 N.Y.S.2d 40

2012 N.Y. Slip Op. 07604

Taramarie PROFITA, et al., Plaintiffs–Respondents,

v. Juan DIAZ, et al., Defendants–Respondents,Benjamin O. Jones, et al., Defendants–Appellants.

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

Nov. 13, 2012.

Law Offices of Cohen & Kuhn, New York (Ira Goldman of counsel), for appellants.

McMahon & McCarthy, Bronx (John E. Boneta of counsel), for Taramarie and Christopher Profita, respondents.

Baker, McEvoy, Morrissey & Moskovits, P.C., Brooklyn (Stacy R. Seldin of counsel), for Juan Diaz and Compas Car Service, Inc., respondents.

MAZZARELLI, J.P., MOSKOWITZ, RICHTER, ABDUS–SALAAM, FEINMAN, JJ.

Order, Supreme Court, Bronx County (Mary Ann Brigantti–Hughes, J.), entered on or about July 20, 2011, which, to the extent appealed from, upon reargument, vacated the prior order of the court granting defendants-appellants' motion for summary judgment dismissing the complaint and cross claim as against them, unanimously modified, on the law, to reinstate the prior order granting defendants-appellants' motion, and, upon a search of the record, grant defendants-respondents' cross motion for summary judgment dismissing the complaint and cross claim as against them, and otherwise affirmed, without costs. The Clerk is directed to enter judgment in favor of all defendants, dismissing the complaint in its entirety and all cross claims.

The court properly considered plaintiffs' motion to reargue, even though it was untimely under CPLR 2221(d)(3). “[R]egardless of statutory time limits concerning motions to reargue, every court retains continuing jurisdiction to reconsider its prior interlocutory orders during the pendency of the action” ( Liss v. Trans Auto Sys., 68 N.Y.2d 15, 20, 505 N.Y.S.2d 831, 496 N.E.2d 851 [1986];see also Kleinser v. Astarita, 61 A.D.3d 597, 598, 878 N.Y.S.2d 28 [1st Dept. 2009] ).

However, on the merits, the court should have adhered to its prior order. Defendants made a prima facie showing of their entitlement to judgment as a matter of law with evidence that plaintiffs' vehicle rear-ended defendants-appellants' vehicle, which was stopped or coming to a stop. “It is well settled that a rear-end collision with a stopped vehicle creates a presumption that the operator of the moving vehicle was negligent” ( Agramonte v. City of New York, 288 A.D.2d 75, 76, 732 N.Y.S.2d 414 [1st Dept. 2001] ).

In opposition, plaintiffs failed to offer a nonnegligent explanation for the collision ( Agramonte, 288 A.D.2d at 76, 732 N.Y.S.2d 414). Plaintiff driver's testimony that defendants-appellants' vehicle stopped suddenly and then struck defendants-respondents' vehicle is insufficient to raise a triable issue of fact ( see Cabrera v. Rodriguez, 72 A.D.3d 553, 553, 900 N.Y.S.2d 29 [1st Dept. 2010] ). Indeed, plaintiff driver failed to explain why he did not maintain a safe distance between his vehicle and defendants-appellants' vehicle ( see Soto–Maroquin v. Mellet, 63 A.D.3d 449, 449–450, 880 N.Y.S.2d...