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Mirlande Demero v. Ungelt Realty Corp. and Patricia Y. Martinez

New York Supreme and/or Appellate Courts APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT June 2011 Term


August 31, 2011

MIRLANDE DEMERO,
PLAINTIFF-RESPONDENT, TORRES, J.P., SHULMAN, HUNTER, JR., JJ.MIRLANDE DEMERO ,NY COUNTY
PLAINTIFF-RESPONDENT,
v.
UNGELT REALTY CORP. AND PATRICIA Y. MARTINEZ, DEFENDANTS-APPELLANTS, - AND - LEONARDA REYES, GLEN D. MYERS, NAOMI A. AUGUSTUS AND ARNOLD A. GRANT, DEFENDANTS-RESPONDENTS.

Per curiam.

Demero v Ungelt Realty Corp.

Appellate Term, First 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This opinion is uncorrected and will not be published in the printed Official Reports.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 August 31, 2011

PRESENT: Torres, J.P., Shulman, Hunter, Jr., JJ

AUGUST 31, 2011

SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT

Clerk's No. 570279/11 Calendar No. 11-171

Defendants Ungelt Realty Corp. and Patricia Y. Martinez appeal, as limited by their briefs, from so much of an order of the Civil Court of the City of New York, Bronx County (Mitchell J. Danziger, J.), dated January 27, 2011, as denied their motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against them.

Order (Mitchell J. Danziger, J.), dated January 27, 2011, insofar as appealed from, affirmed, with $10 costs.

In this action to recover damages for personal injuries resulting from a multi-vehicle highway collision, Civil Court properly denied the motion of appellants -- owner and operator of the first vehicle -- for summary judgment dismissing the complaint. While the general rule is that a rear-end collision with a stopped vehicle establishes a prima facie case of negligence on the part of the driver of the rear car (see Stalikas v United Materials, 306 AD2d 810 [2003], affd 100 NY2d 626 [2003]; Johnson v Phillips, 261 AD2d 269, 271 [1999]), the negligence of the rear-most driver does not absolve the front vehicle of liability as a matter of law in circumstances where the front vehicle "set into motion an eminently foreseeable chain of events that resulted in [the] collision" (Sheffer v Critoph, 13 AD3d 1185, 1187 [2004], quoting Murtagh v Beachy, 6 AD3d 786, 788 [2004]).

Here, it is undisputed that appellants' vehicle was stopped in the left traffic lane of a highway, creating a risk that other vehicles would not be able to stop to avoid the lane obstruction caused by their vehicle (see Tutrani v County of Suffolk, 10 NY3d 906, 907 [2008]). Appellants failed to show that the claimed brake failure, which allegedly caused their vehicle to stop on the highway, resulted from an unanticipated problem with the brakes, or that they exercised reasonable care to keep the brakes in good working order (see Tselebis v Ryder Truck Rental, Inc., 72 AD3d 198, 200 [2010]; Vidal v Tsitsiashvili, 297 AD2d 638 [2002]; O'Callaghan v Flitter, 112 AD2d 1030, 1031 [1985]). Under these circumstances, triable issues of fact preclude summary disposition in favor of appellants on the issue of liability.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Decision Date: August 31, 2011

against

Ungelt Realty Corp. and Patricia Y. Martinez, Defendants-Appellants, - and - Leonarda Reyes, Glen D. Myers, Naomi A. Augustus and Arnold A. Grant, Defendants-Respondents.

Defendants Ungelt Realty Corp. and Patricia Y. Martinez appeal, as limited by their briefs, from so much of an order of the Civil Court of the City of New York, Bronx County (Mitchell J. Danziger, J.), dated January 27, 2011, as denied their motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against them.

Per Curiam.

Order (Mitchell J. Danziger, J.), dated January 27, 2011, insofar as appealed from, affirmed, with $10 costs.

In this action to recover damages for personal injuries resulting from a multi-vehicle highway collision, Civil Court properly denied the motion of appellants -- owner and operator of the first vehicle -- for summary judgment dismissing the complaint. While the general rule is that a rear-end collision with a stopped vehicle establishes a prima facie case of negligence on the part of the driver of the rear car (see Stalikas v United Materials, 306 AD2d 810 [2003], affd 100 NY2d 626 [2003]; Johnson v Phillips, 261 AD2d 269, 271 [1999]), the negligence of the rear-most driver does not absolve the front vehicle of liability as a matter of law in circumstances where the front vehicle "set into motion an eminently foreseeable chain of events that resulted in [the] collision" (Sheffer v Critoph, 13 AD3d 1185, 1187 [2004], quoting Murtagh v Beachy, 6 AD3d 786, 788 [2004]).

Here, it is undisputed that appellants' vehicle was stopped in the left traffic lane of a highway, creating a risk that other vehicles would not be able to stop to avoid the lane obstruction caused by their vehicle (see Tutrani v County of Suffolk, 10 NY3d 906, 907 [2008]). Appellants failed to show that the claimed brake failure, which allegedly caused their vehicle to stop on the highway, resulted from an unanticipated problem with the brakes, or that they exercised reasonable care to keep the brakes in good working order (see Tselebis v Ryder Truck Rental, Inc., 72 AD3d 198, 200 [2010]; Vidal v Tsitsiashvili, 297 AD2d 638 [2002]; O'Callaghan v Flitter, 112 AD2d 1030, 1031 [1985]). Under these circumstances, triable issues of fact preclude summary disposition in favor of appellants on the issue of liability.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

Decision Date: August 31, 2011

20110831

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