Whelan v. Sutherland

• Decision Date: 27 May 2015
• Docket Number: 2014-06619
• Parties: Carla WHELAN, respondent, v. Michelle J. SUTHERLAND, et al., defendants, Darlene Ricciardi, appellant.
• Court: New York Supreme Court — Appellate Division

128 A.D.3d 1055

9 N.Y.S.3d 639

2015 N.Y. Slip Op. 04476

Carla WHELAN, respondent

v. Michelle J. SUTHERLAND, et al., defendantsDarlene Ricciardi, appellant.

2014-06619

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

May 27, 2015.

Russo, Apoznanski & Tambasco, Melville, N.Y. (Susan J. Mitola of counsel), for appellant.

Nancy Galassi (Mitchell Dranow, Sea Cliff, N.Y., of counsel), for respondent.

REINALDO E. RIVERA, J.P., LEONARD B. AUSTIN, JEFFREY A. COHEN, and COLLEEN D. DUFFY, JJ.

Opinion

In an action to recover damages for personal injuries, the defendant Darlene Ricciardi appeals, as limited by her brief, from so much of an order of the Supreme Court, Suffolk County (Gazzillo, J.), dated April 4, 2014, as granted that branch of the plaintiff's motion which was for summary judgment on the issue of liability against her.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the plaintiff's motion which was for summary judgment on the issue of liability against the defendant Darlene Ricciardi is denied.

On April 12, 2010, the plaintiff allegedly sustained personal injuries as a result of an accident that occurred as she was driving on the Long Island Expressway. According to the plaintiff, at the time of that accident, she was slowing down in traffic when her vehicle was struck in the rear by a vehicle owned and operated by the defendant Darlene Ricciardi. The plaintiff further alleged that her vehicle was struck a second time by Ricciardi, when Ricciardi's vehicle was struck by a vehicle owned and operated by the defendant Michelle J. Sutherland. In the order appealed from, insofar as relevant here, the Supreme Court granted that branch of the plaintiff's motion which was for summary judgment on the issue of liability against Ricciardi.

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 Drakh v. Levin, 123 A.D.3d 1084, 1085, 1 N.Y.S.3d 202 ; Lisetskiy v. Weiss, 123 A.D.3d 775, 776, 999 N.Y.S.2d 83 ; Spinosa v. Golden Touch Transp. of NY, Inc., 122 A.D.3d 916, 917, 998 N.Y.S.2d 95 ). “A nonnegligent explanation includes, but is not limited to, ‘sudden or unavoidable circumstances' ” (D'Agostino v. YRC, Inc., 120 A.D.3d 1291, 1292, 992 N.Y.S.2d 358, quoting Gambino v. City of New York, 205 A.D.2d 583, 583, 613 N.Y.S.2d 417 ).

Here, the plaintiff established her prima facie...