Padilla v Zulu Servs., Inc.

Padilla v Zulu Servs., Inc. 2015 NY Slip Op 07587 Decided on October 20, 2015 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on October 20, 2015
Gonzalez, P.J., Mazzarelli, Richter, Manzanet-Daniels, JJ.
15908 309679/11

[*1] Francis Padilla, et al., Plaintiffs,

v

Zulu Services, Inc., et al., Defendants. Zulu Services, Inc., et al., Third-Party Plaintiffs-Respondents, F.W. Nagel, Third-Party Defendant-Appellant.

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

Russo & Toner, LLP, Brooklyn (Stacy R. Seldin of counsel), for respondents.

Order, Supreme Court, Bronx County (Fernando Tapia, J.), entered on or about April 8, 2014, which, insofar as appealed from, denied the cross motion of third-party defendant F.W. Nagel (Nagel) for summary judgment dismissing the third-party complaint, unanimously reversed, on the law, without costs, and the cross motion granted. The Clerk is directed to enter judgment dismissing the third-party complaint.

It is well settled that "a rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the driver of the rear vehicle" (Cabrera v Rodriguez, 72 AD3d 553, 553 [1st Dept 2010]). Here, Nagel demonstrated his entitlement to judgment as a matter of law by submitting evidence showing that his vehicle was stopped when it was rear-ended by a vehicle owned by defendant/third-party plaintiff Zulu Services, Inc. (Zulu Services) and operated by defendant/third-party plaintiff Yodeny Beltran (Beltran); plaintiffs were passengers in the vehicle driven by Beltran.

In opposition, Zulu Services and Beltran failed to raise a triable issue of fact. Their contention that Nagel stopped short is insufficient to rebut the presumption of negligence (see Santos v Booth, 126 AD3d 506 [1st Dept 2015]; Cruz v Lise, 123 AD3d 514 [1st Dept 2014]). Although Beltran had the duty to keep a safe distance between his vehicle and Nagel's vehicle, he never explained why he failed to do so despite his testimony that he

was watching Nagel's vehicle before the accident happened (see Corrigan v Porter Cab Corp., 101 AD3d 471, 472 [1st Dept 2012]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: OCTOBER 20, 2015

CLERK