Carela v Espinosa

[*1] Carela v Espinosa 2007 NY Slip Op 50114(U) [14 Misc 3d 133(A)] Decided on January 26, 2007 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 26, 2007
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., McCooe, Schoenfeld, JJ
570517/06

Isabel Carela and Manuel Ortega, Plaintiffs-Respondents,

against

Cesar S. Espinosa and Sherwin Williams Co., Defendants-Appellants.

Defendants appeal from an order of the Civil Court of the City of New York, Bronx County (Raul Cruz, J.), entered January 31, 2006, which denied their motion for summary judgment dismissing the complaint.

PER CURIAM

Order (Raul Cruz, J.), entered January 31, 2006, reversed, with $10 costs, motion granted and complaint dismissed. The Clerk is directed to enter judgment accordingly.

The unrefuted deposition testimony of defendant Espinoza reveals that his truck was stopped in the left lane prior to being rear-ended by the school bus in which plaintiff was a passenger. "A rear-end collision with a stopped vehicle establishes a prima facie case of negligence on the part of the driver who strikes the vehicle in front" (Francisco v Schoepfer, 30 AD3d 275, 276 [2006]; Garcia v ELJ Freight Systems, 19 AD3d 224 [2005]). Neither the bus driver nor plaintiff herself set forth any explanation for the happening of the accident, let alone an adequate and non-negligent explanation. The fact that defendant may have changed lanes shortly before the impact, without more, was insufficient to rebut the presumption of negligence (see Irmiyayeva v Thompson, 296 AD2d 439, 440 [2002]).

This constitutes the decision and order of the court.
Decision Date: January 26, 2007