Mercado v Barrow

[*1] Mercado v Barrow 2005 NY Slip Op 50102(U) Decided on February 2, 2005 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 2, 2005
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: PESCE, P.J., PATTERSON and RIOS, JJ.
2004-306 K C

WILFREDO MERCADO, Respondent-Appellant, -and- ELIZABETH GUTIERREZ and LIDORA MERCADO, Respondents,

against

RONY A. BARROW, Appellant-Respondent, -and- ZACHARIAH OJO, Respondent.

Appeal by defendant Rony A. Barrow from so much of an order of the Civil Court, Kings County (L. Jacobson, J.), entered June 18, 2001, as denied his motion for summary judgment dismissing the complaint and cross claim against him. Cross appeal by plaintiff Wilfredo Mercado from so much of the same order as denied his cross motion for summary judgment dismissing the counterclaims asserted against him.

Order insofar as appealed from unanimously reversed without costs, defendant Barrow's motion for summary judgment dismissing the complaint and the cross claim against him granted, and plaintiff Mercado's cross motion for summary judgment dismissing the counterclaims asserted against him granted.

The instant action arises out of a three-vehicle accident in which a vehicle owned and [*2]operated by defendant Zachariah Ojo struck the rear of a vehicle owned and operated by defendant Rony A. Barrow which struck the rear of a vehicle owned and operated by plaintiff Wilfredo Mercado. After depositions were held, defendant Barrow moved for summary judgment dismissing the complaint and the cross claim against him, and plaintiff Mercado cross-moved for summary judgment dismissing the counterclaims asserted against him. In support of their respective motion and cross motion, Barrow and Mercado submitted deposition testimony which indicated that the Barrow vehicle was stopped at a red light behind the Mercado vehicle, when the Ojo vehicle hit the Barrow vehicle from the rear. The Barrow vehicle was then propelled into the Mercado vehicle. Defendant Ojo opposed the motion and cross motion with an affirmation of counsel, and did not submit an affidavit of someone with personal knowledge nor the portions of the deposition testimony upon which he relied.

It is well established that "a rear-end collision into a lawfully-stopped vehicle creates a prima facie case of liability in favor of the operator of the stationary vehicle and imposes a duty of explanation on the operator of the moving vehicle" (Parise v Meltzer, 204 AD2d 295 [1994]). If the operator of the moving vehicle does not come forward with any evidence to rebut the inference of negligence, then the operator of the stationary vehicle may be properly awarded summary judgment on the issue of liability (see Leonard v City of New York, 273 AD2d 205 [2000]).

There was no evidence presented to show any fault either on the part of plaintiff Mercado or on the part of defendant Barrow. Defendant Ojo's opposition was insufficient to raise a triable issue of fact as to his liability, notwithstanding the lower court's search of the record. Accordingly, defendant Barrow's motion for summary judgment dismissing the complaint and cross claim against him and plaintiff Mercado's cross motion for summary judgment dismissing the counterclaims against him should have been granted.
Decision Date: February 02, 2005