Strickland v. Tirino

• Decision Date: 17 October 2012
• Citation: 952 N.Y.S.2d 599,99 A.D.3d 888,2012 N.Y. Slip Op. 06939
• Parties: David STRICKLAND, etc., plaintiff-respondent, Deborah Banks Harrigan, plaintiff-respondent-appellant, v. Patrick TIRINO, Jr., defendant-respondent, Scott A. Ditzel, appellant-respondent, Andy Jang, et al., defendants-respondents-appellants.
• Court: New York Supreme Court — Appellate Division

99 A.D.3d 888

952 N.Y.S.2d 599

2012 N.Y. Slip Op. 06939

David STRICKLAND, etc., plaintiff-respondent,Deborah Banks Harrigan, plaintiff-respondent-appellant,

v. Patrick TIRINO, Jr., defendant-respondent,Scott A. Ditzel, appellant-respondent,Andy Jang, et al., defendants-respondents-appellants.

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

Oct. 17, 2012.

Kelly, Rode & Kelly, LLP, Mineola, N.Y. (John W. Hoefling of counsel), for appellant-respondent.

Andrea G. Sawyers, Melville, N.Y. (Scott W. Driver of counsel), for plaintiff-respondent-appellant Deborah Banks Harrigan.

Russo, Apoznanski & Tambasco, Westbury, N.Y. (Susan J. Mitola and Sonia Gassan of counsel), for defendants-respondents-appellants Andy Jang and Kwon O. Jang.

Nicolini, Paradise, Ferretti & Sabella, Mineola, N.Y. (John R. Ferretti of counsel), for defendant-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, etc., the defendant Scott A. Ditzel appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County (Mahon, J.), dated September 22, 2011, as denied his cross motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against him, the defendants Andy Jang and Kwon O. Jang cross-appeal, as limited by their brief, from so much of the same order as denied their cross motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against them, and the plaintiff Deborah Banks Harrigan cross-appeals, as limited by her brief, from so much of the same order as denied that branch of her motion which was for summary judgment dismissing the counterclaims asserted against her by the defendants Scott A. Ditzel and Patrick Tirino, Jr.

ORDERED that the order is reversed insofar as appealed and cross-appealed from, on the law, with one bill of costs payable by the defendant Patrick Tirino, Jr., to the appellants-respondents and the respondents-appellants appearing separately and filing separate briefs, that branch of the motion of the plaintiff Deborah Banks Harrigan which was for summary judgment dismissing the counterclaims asserted against her by the defendants Scott A. Ditzel and Patrick Tirino, Jr., is granted, the cross motion of the defendants Andy Jang and Kwon O. Jang for summary judgment dismissing the complaint and all cross claims insofar as asserted against them is granted, and the cross motion of the defendant Scott A. Ditzel for summary judgment dismissing the complaint and all cross claims insofar as asserted against him is granted.

On October 26, 2006, while traveling eastbound on the Southern State Parkway, approximately three miles east of Exit 25S, in the left lane, a vehicle driven by the defendant Patrick Tirino, Jr. struck the rear of a stopped vehicle operated by the defendant Scott A. Ditzel. In turn, Ditzel's vehicle was propelled into the rear of a stopped vehicle owned by the defendantAndy Jang and operated by the defendant Kwon O. Jang. The Jangs' vehicle was then propelled into the rear of a vehicle operated by the plaintiff Deborah Banks Harrigan (hereinafter the moving plaintiff), in which the infant plaintiff David Strickland was a passenger.

“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” ( Martinez v. Martinez, 93 A.D.3d 767, 768, 941 N.Y.S.2d 189;see Denezzo v. Joseph, 95 A.D.3d 1060, 1060, 944 N.Y.S.2d 299;Balducci v. Velasquez, 92 A.D.3d 626, 628, 938 N.Y.S.2d 178). Therefore, “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” ( Martinez v. Martinez, 93 A.D.3d at 768, 941 N.Y.S.2d 189;see Denezzo v. Joseph, 95 A.D.3d at 1060, 944 N.Y.S.2d 299;Giangrasso v. Callahan, 87 A.D.3d 521, 522, 928 N.Y.S.2d 68). “Evidence that a vehicle was struck in the rear and propelled into the vehicle in front of it may provide a sufficient non-negligent explanation” ( Ortiz v. Haidar, 68 A.D.3d 953, 954, 892 N.Y.S.2d 122;see Katz 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...