Cartagena v Martinez

Cartagena v Martinez 2013 NY Slip Op 08516 Decided on December 19, 2013 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 December 19, 2013
Tom, J.P., Andrias, Saxe, DeGrasse, Richter, JJ.
11383 307150/11

[*1]Ralph Cartagena, Plaintiff-Appellant,

v

Jose N. Orellana Martinez, et al., Defendants-Respondents.




Block O'Toole & Murphy, LLP, New York (David L. Scher of
counsel), for appellant.
Law Offices of James J. Toomey, New York (Eric P. Tosca of
counsel), for respondents.

Order, Supreme Court, Bronx County (Julia Rodriguez, J.), entered July 12, 2013, which denied plaintiff's motion for summary judgment on the issue of liability, unanimously reversed, on the law, without costs, and the motion granted.

Plaintiff established his entitlement to judgment as a matter of law on the issue of liability in this action for personal injuries sustained in a motor vehicle accident. The record demonstrates that defendants' truck hit plaintiff's stopped car in the rear, in stop-and-go traffic (see Tutrani v County of Suffolk, 10 NY3d 906, 908 [2008]).

Defendants' opposition fails to raise a triable issue of fact. Although defendant driver stated that plaintiff's car cut off his truck, he also testified that he did not see plaintiff's vehicle until after the collision. Thus, defendants' purported nonnegligent explanation for the collision was speculative (see Rodriguez v Chapman-Perry, 82 AD3d 638 [1st Dept 2011]; Davis v
Quinones, 295 AD2d 394 [2d Dept 2002]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: DECEMBER 19, 2013

CLERK