Appeal from an order of the Civil Court of the City of New York, Queens County (Rudolph E. Greco, Jr., J.), entered March 2, 2010. The order, insofar as appealed from, denied a motion by defendants Christopher Chucks and Danorche Corporation for summary judgment dismissing the complaint as against them.
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This opinion is uncorrected and will not be published in the printed Official Reports.
PRESENT: PESCE, P.J., GOLIA and STEINHARDT, JJ
ORDERED that the order, insofar as appealed from, is reversed, without costs, and the motion by defendants Christopher Chucks and Danorche Corporation for summary judgment dismissing the complaint as against them is granted.
A vehicle operated by defendant Christopher Chucks and owned by defendant Danorche Corporation (Danorche) (collectively appellants) was the fourth in a five-car chain-reaction collision near the intersection of South Conduit Avenue and Rockaway Avenue in Queens. In support of their motion for summary judgment dismissing the complaint as against them, appellants submitted Chucks' deposition testimony, wherein he stated that his vehicle had come to a complete stop behind plaintiff's van, which had already turned over on its side as the result of an earlier accident, and that after a couple of seconds, the vehicle operated by defendant Odile T. Toussaint had collided with the rear of Chucks' vehicle and had thrust it toward the back of plaintiff's van, although Chucks' vehicle and plaintiff's van had never made contact.
Defendant Toussaint testified at her deposition that she was driving in the middle lane on South Conduit Avenue when she initially saw a four-car accident. At that time, plaintiff's van was already overturned on its side. Chucks' vehicle was positioned closest to her own vehicle traveling in the middle lane. She first noticed Chucks' vehicle, with its rear brake lights activated, three seconds before she collided with it. Toussaint observed another vehicle in front of Chucks' vehicle that had stopped adjacent to plaintiff's van. Toussaint activated her brakes the moment she saw Chucks' vehicle brake. Chucks' vehicle came to a complete stop without making any contact with plaintiff's van. Toussaint's vehicle then collided with the rear of Chucks' vehicle, making a "medium" sized impact; however, Chucks' vehicle did not move as a result of the impact.
Defendant Steven M. Alpert, the operator of the second vehicle in the chain- reaction collision, also testified that his vehicle had suffered two impacts, one to the front of his vehicle and one to the back. The first impact occurred after he emerged from an overpass traveling on South Conduit Avenue. He slowed slightly due to sun glare and then saw a van fifty feet in front of his vehicle completely stopped. He could not swerve into the left or right lanes because of traffic. Alpert's vehicle collided with the rear of the van within a second of seeing it, making a "medium" sized impact. After the accident, Alpert activated his hazard blinker lights. Eight to ten seconds later, plaintiff's van collided with the back of Alpert's vehicle. Alpert stated that plaintiff's van "tipped over" immediately after the impact and that no other vehicle collided with plaintiff's van once it tipped over on its side.
In contrast, plaintiff, the operator of the third vehicle in the chain-reaction collision, testified that he was driving on South Conduit Avenue when he noticed a Jeep and Alpert's vehicle traveling in front of him. Plaintiff saw the Jeep collide with Alpert's vehicle, whereupon both came to a complete stop. Plaintiff's vehicle then collided into the rear of Alpert's vehicle a second or two after the initial accident occurred, bringing plaintiff's vehicle to an abrupt halt. Five to six seconds later, plaintiff felt a "hard impact" to the rear of his vehicle, flipping his van over onto its side. When plaintiff emerged from his vehicle, he did not recall whether Chucks' vehicle was the one that collided with his or whether Chucks' vehicle suffered any damage.
The parties also produced a police accident report describing damage to the front of Chucks' vehicle and noting that, "Vehicle # 4 [Chucks] states he saw accident, slowed down and was hit in rear by vehicle # 5 [Toussaint], which cause[d] [him] to hit into vehicle # 3 [plaintiff's van]."
By order entered March 2, 2010, the Civil Court, among other things, denied appellants' motion for summary judgment dismissing the complaint as against them. The Civil Court found that a question of fact existed "as to the sequence of the collisions" and "the time between collisions."
A review of the record presents two factual possibilities, none of which support the conclusion that appellants are liable for plaintiff's alleged injuries. Either Chucks stopped his vehicle before colliding with plaintiff's van and (1) never made contact with it, or (2) Toussaint's vehicle collided with Chucks' vehicle, thereby thrusting it into the rear of plaintiff's van. Pursuant to the first scenario, appellants are not liable for plaintiff's alleged injuries because their vehicle never made contact with plaintiff's van.
Under the second scenario, plaintiff did not rebut the presumption that Toussaint was the sole proximate cause of any collision with the rear of plaintiff's vehicle (Shirman v Lawal, 69 AD3d 838, 839 ). It is well established that, "[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" (id., quoting Smith v Seskin, 49 AD3d 628, 629 ). Thus, assuming, contrary to the deposition testimony of defendants Toussaint, Chucks and Alpert, that the force of the impact of Toussaint's vehicle did in fact thrust Chucks' stopped vehicle into the rear of plaintiff's van, "plaintiff failed to come forward with any evidence ...