Tumminello v. City of N.Y.

• Decision Date: 22 March 2017
• Citation: 148 A.D.3d 1084,49 N.Y.S.3d 739
• Parties: Anthony TUMMINELLO, et al., appellants, v. CITY OF NEW YORK, respondent.
• Court: New York Supreme Court — Appellate Division

148 A.D.3d 1084

49 N.Y.S.3d 739

Anthony TUMMINELLO, et al., appellants,

v.CITY OF NEW YORK, respondent.

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

March 22, 2017.

Kelner & Kelner, New York, NY (Joshua D. Kelner of counsel), for appellants.

Zachary W. Carter, Corporation Counsel, New York, NY (Claude S. Platton and Aaron M. Bloom of counsel), for respondent.

MARK C. DILLON, J.P., LEONARD B. AUSTIN, SYLVIA O. HINDS–RADIX, and JOSEPH J. MALTESE, JJ.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Queens County (Lane, J.), dated April 19, 2016, which denied their motion for summary judgment on the issue of liability.

ORDERED that the order is reversed, on the law, with costs, and the plaintiffs' motion for summary judgment on the issue of liability is granted.

On July 22, 2013, at the intersection of Francis Lewis Boulevard and Union Turnpike in Queens, a Department of Sanitation truck owned by the defendant City of New York and operated by nonparty Michael J. McPhillips, in which the plaintiff Anthony Tumminello (hereinafter the injured plaintiff) was a passenger, struck another vehicle in the rear. At the time of the accident, the injured plaintiff and McPhillips were employed by the City as sanitation workers. Thereafter, the injured plaintiff, and his wife suing derivatively, commenced this action. After discovery, the plaintiffs moved for summary judgment on the issue of liability, and the Supreme Court denied the motion. The plaintiffs appeal.

There can be more than one proximate cause of an accident (see Hurst v. Belomme, 142 A.D.3d 642, 36 N.Y.S.3d 735 ; Argentina v. Emery World Wide Delivery Corp., 93 N.Y.2d 554, 560 n. 2, 693 N.Y.S.2d 493, 715 N.E.2d 495 ). Accordingly, a plaintiff moving for summary judgment on the issue of liability in a personal injury action has the burden of establishing, prima facie, not only the defendant's negligence, but also the absence of his or her comparative fault (see Ricciardi v. Nelson, 142 A.D.3d 492, 35 N.Y.S.3d 724 ; Roberts v. Zirkind, 140 A.D.3d 940, 940–941, 34 N.Y.S.3d 465 ). A rear-end collision with a stopped or stopping vehicle 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 Theo v. Vasquez, 136 A.D.3d 795, 796, 26 N.Y.S.3d 85 ; Le Grand v. Silberstein, 123 A.D.3d 773, 774, 999 N.Y.S.2d 96 ; Cheow v. Cheng Lin Jin, 121 A.D.3d 1058, 1058–1059, 995 N.Y.S.2d 186 ; Volpe v. Limoncelli, 74 A.D.3d 795, 795, 902 N.Y.S.2d 152 ). A nonnegligent explanation may include a mechanical failure, a sudden, unexplained stop of the vehicle ahead, an unavoidable skidding on wet pavement, or any other reasonable cause (see Binkowitz v. Kolb, 135 A.D.3d 884, 885, 24 N.Y.S.3d 186 ; Etingof v. Metropolitan Laundry Mach. Sales, Inc., 134 A.D.3d 667, 20 N.Y.S.3d 589 ; D'Agostino v. YRC, Inc., 120 A.D.3d 1291, 1292, 992 N.Y.S.2d 358 ; Sayyed v. Murray, 109 A.D.3d 464, 970 N.Y.S.2d 279 ). " While a nonnegligent explanation for a rear-end collision may include evidence of a sudden stop of the lead vehicle, ‘vehicle stops which are foreseeable under the prevailing traffic conditions, even if sudden and frequent, must be anticipated by the driver who follows, since he or she is under a duty to maintain a safe distance between his or her car and the car ahead’ " (Theo v. Vasquez, 136 A.D.3d at 796, 26 N.Y.S.3d 85, quoting Brothers v. Bartling, 130 A.D.3d 554, 556, 13 N.Y.S.3d 202 [internal quotation marks omitted]; see Volpe v. Limoncelli, 74 A.D.3d at 795–796, 902 N.Y.S.2d 152 ).

In support of their motion for summary judgment on the issue of liability, the plaintiffs submitted, inter alia, transcripts of the parties' deposition testimony, which demonstrated, prima facie, that the injured plaintiff was not comparatively at fault for the happening of the subject accident, and that McPhillips was negligent. Contrary to the...