Jae Wook Kim v Chang Sheng Chen

[*1] Jae Wook Kim v Chang Sheng Chen 2007 NY Slip Op 52290(U) [17 Misc 3d 136(A)] Decided on November 21, 2007 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 21, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : WESTON PATTERSON, J.P., GOLIA and BELEN, JJ
2006-1637 Q C.

Jae Wook Kim and Ga Young Kim, Respondents,

against

Chang Sheng Chen, Defendant, -and- Eugene Smolley and Woong Huh, Appellants.

Appeal from an order of the Civil Court of the City of New York, Queens County (Diccia T. Pineda-Kirwan, J.), entered April 10, 2006. The order, insofar as appealed from, denied the motion by defendants Eugene Smolley and Woong Huh for summary judgment dismissing the complaint as against them.

Order, insofar as appealed from, reversed without costs and motion by defendants Eugene Smolley and Woong Huh for summary judgment dismissing the complaint as against them granted.

In this action to recover for injuries sustained in a rear-end collision, defendant Woong Huh testified at his deposition that he was driving the vehicle owned by defendant Smolley behind plaintiffs' vehicle when he was hit in the rear by another vehicle driven by defendant Chang Sheng Chen which caused Woong Huh's vehicle to come into contact with plaintiffs' vehicle. Plaintiffs moved for summary judgment against all defendants and the court (Thomas D. Raffaele, J.) granted partial summary judgment on the issue of liability against defendant Chang Sheng Chen, but denied plaintiffs' motion as against defendants Smolley and Woong Huh. Although Smolley and Woong Huh did not oppose the motion, the court determined that issues of fact existed. [*2]

Before plaintiffs' motion for summary judgment was decided, defendants Smolley and Woong Huh moved for summary judgment. The court below, inter alia, denied their motion, without considering the merits thereof, on the ground that it was a successive motion for summary judgment. The instant appeal by defendants Smolley and Woong Huh ensued.

Contrary to the opinion of the court below, the motion by defendants Smolley and Woong Huh was not a successive motion for summary judgment since said defendants had not previously moved for the same relief as requested in the instant motion (cf. Lapadula v Sang Shing Kwok, 304 AD2d 798 [2003]). Turning to the merits of their motion, it is well settled that a rear-end collision establishes a prima facie case of negligence on the part of the operator of the rear vehicle, and imposes a duty upon said driver to provide a non-negligent explanation for the accident (see Katz v Masada II Car & Limo Serv., Inc., 43 AD3d 876 [2007]; Reid v Rayamajhi, 17 AD3d 557, 558 [2005]). Woong Huh's deposition testimony established that Chang Sheng Chen's vehicle pushed Woong Huh's vehicle into plaintiffs' vehicle. Consequently, Smolley and Woong Huh provided a non-negligent explanation sufficient to relieve them of liability (see Katz v Masada II Car & Limo Serv., Inc., 43 AD3d 876, supra). Plaintiffs did not oppose the motion, and Chang Sheng Chen failed to raise a triable issue of fact with respect to liability on the part of Smolley and Woong Huh. Accordingly, the motion by defendants Smolley and Woong Huh for summary judgment dismissing the action against them is granted.

Weston Patterson, J.P., Golia and Belen, JJ., concur.
Decision Date: November 21, 2007