Kostakos v Mangione

[*1] Kostakos v Mangione 2008 NY Slip Op 52129(U) [21 Misc 3d 131(A)] Decided on October 27, 2008 Appellate Term, Second 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 27, 2008
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : PESCE, P.J., WESTON PATTERSON and RIOS, JJ
2007-1369 Q C.

Michael Kostakos, Appellant,

against

Vincenzo Mangione and CHRISTINE MANGIONE, Respondents.

Appeal from an order of the Civil Court of the City of New York, Queens County (Lee A. Mayersohn, J.), entered June 28, 2007. The order, insofar as appealed from, denied plaintiff's motion for summary judgment on the issue of liability.

Order, insofar as appealed from, reversed without costs, and plaintiff's motion for summary judgment on the issue of liability granted.

In this action to recover for personal injuries arising from a motor vehicle accident, plaintiff moved for summary judgment on the issue of liability, arguing that since defendants' vehicle hit her vehicle in the rear, there was a presumption of negligence, and that defendants did not offer a non-negligent explanation for the accident.

"[A] rear-end collision with a stopped vehicle establishes a prima facie case of negligence on the part of the operator of the moving vehicle" (Ayach v Ghazal, 25 AD3d 742, 743 [2006], quoting Russ v Investech Sec., 6 AD3d 602, 602 [2004]) and imposes a duty on that operator to provide a non-negligent explanation for the collision (see Carhuayano v J & R Hacking, 28 AD3d 413 [2006]; Ayach, 25 AD3d 742; Briceno v Milbry, 16 AD3d 448 [2005]; Niyazov v Bradford, 13 AD3d 501 [2004]; Russ, 6 AD3d 602; Chepel v Meyers, 306 AD2d 235 [2003]; Leal v Wolff, 224 AD2d 392 [1996]). While, in some cases, the sudden stop of the lead vehicle may constitute a non-negligent explanation for a collision (see Chepel, 306 AD2d 235), in general, "[a] claim that the driver of the lead vehicle made a sudden stop, standing alone, is insufficient to rebut the presumption of negligence" (Ayach, 25 AD3d at 743; see Belitsis v Airborne Express Frgt. Corp., 306 AD2d 507 [2003]; Dickie v Pei Xiang Shi, 304 AD2d 786 [2003]). Conclusory allegations made in opposition to a summary judgment motion that the driver of the lead vehicle made a sudden stop do not rebut the presumption of negligence created [*2]by an unexplained rear-end collision (see Rainford v Han, 18 AD3d 638 [2005]; Levine v Taylor, 268 AD2d 566 [2000]; Itingen v Weinstein, 260 AD2d 240 [1999]).

Plaintiff submitted uncontested evidence that his vehicle was stopped for five seconds at the time it was struck in the rear by defendants' vehicle, establishing a prima facie entitlement to judgment as a matter of law on the issue of liability. In opposition to plaintiff's summary judgment motion, defendants submitted an affirmation of counsel referring to a portion of defendant Vincenzo Mangione's deposition testimony which contained only a vague statement that plaintiff's vehicle came to an "abrupt stop." The portion of Mr. Mangione's deposition testimony proffered in opposition to the motion did not provide a non-negligent explanation for his rear-end collision with plaintiff's vehicle (see Levine, 268 AD2d 566), and, without more, was insufficient to rebut the presumption of negligence created by the rear-end collision. Accordingly, plaintiff's motion for summary judgment on the issue of liability should have been granted.

Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: October 27, 2008