Camarillo v Sandoval

Camarillo v Sandoval 2011 NY Slip Op 08895 Decided on December 6, 2011 Appellate Division, Second 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 6, 2011
SUPREME COURT OF THE STATE OF NEW YORKAPPELLATE DIVISION : SECOND JUDICIAL DEPARTMENT
PETER B. SKELOS, J.P.
L. PRISCILLA HALL
PLUMMER E. LOTT
JEFFREY A. COHEN, JJ.
2011-05307
(Index No. 1998/09)

[*1]Evelyn Camarillo, plaintiff-respondent,

v

Jose Sandoval, et al., defendants, Jose L. Navarro, appellant, Giovanni Rodriguez, et al., defendants- respondents.




Robert P. Tusa (Sweetbaum & Sweetbaum, Lake Success, N.Y.
[Marshall D. Sweetbaum], of counsel), for appellant.
Rimland & Associates, New York, N.Y. (Victor Goldblum and
Matthew A. Kaufman of counsel), for
plaintiff-respondent.
Nancy L. Isserlis, Long Island City, N.Y. (Lawrence R. Miles of
counsel), for defendants-respondents.


DECISION & ORDER

In an action to recover damages for personal injuries, the defendant Jose L. Navarro appeals from an order of the Supreme Court, Kings County (Bayne, J.), dated April 15, 2011, which denied his motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against him.

ORDERED that the order is affirmed, with one bill of costs, payable to the respondents appearing separately and filing separate briefs.

The plaintiff allegedly was injured when a car driven by the defendant Giovanni Rodriguez, in which she was a passenger, struck the rear of a car driven by the defendant Jose L. Navarro. Navarro moved for summary judgment dismissing the complaint and all cross claims insofar as asserted against him. The Supreme Court denied the motion, and we affirm.

"A rear-end collision with a stopped or stopping vehicle creates a prima facie case of negligence with respect to the operator of the moving vehicle, and imposes a duty on the operator of the moving vehicle to come forward with an adequate, non-negligent explanation for the accident" (Oguzturk v General Elec. Co., 65 AD3d 1110, 1110 [internal quotation marks omitted]; see Carman v Arthur J. Edwards Mason Contr. Co., Inc., 71 AD3d 813; Foti v Fleetwood Ride, Inc., 57 AD3d 724, 724; Hughes v Cai, 55 AD3d 675). Here, although Navarro testified at his deposition that he was traveling in the same lane for 19 or 20 blocks before he stopped completely at a red light and was rear-ended by Rodriguez's vehicle, the plaintiff's deposition testimony, submitted by Navarro in support of his motion, was that Navarro was traveling in an adjacent lane and swerved in front of Rodriguez's vehicle before quickly coming to a stop. In light of the plaintiff's testimony, the defendant failed to eliminate all triable issues of fact (see Scheker v Brown, 85 AD3d 1007; Reitz [*2]v Seagate Trucking, Inc., 71 AD3d 975; Oguzturk v General Elec. Co., 65 AD3d at 1110-1111; Guerra v Cantos, 38 AD3d 714; Briceno v Milbry, 16 AD3d 448; Mohan v Puthumana, 302 AD2d 437; Rozengauz v Lok Wing Ha, 280 AD2d 534). Contrary to Navarro's contention, the plaintiff's testimony was not incredible as a matter of law, and any inconsistencies in her testimony raise an issue of credibility that must be resolved by the fact-finder (see Frazier v Hertz Vehs., LLC, 78 AD3d 767, 768; see generally Ferrante v American Lung Assn., 90 NY2d 623, 631).

Accordingly, the Supreme Court properly denied Navarro's motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against him.
SKELOS, J.P., HALL, LOTT and COHEN, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court