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Mirlande Demero v. Ungelt Realty Corp. and Patricia Y. Martinez
August 31, 2011
PLAINTIFF-RESPONDENT, TORRES, J.P., SHULMAN, HUNTER, JR., JJ.MIRLANDE DEMERO ,NY COUNTY
UNGELT REALTY CORP. AND PATRICIA Y. MARTINEZ, DEFENDANTS-APPELLANTS, - AND - LEONARDA REYES, GLEN D. MYERS, NAOMI A. AUGUSTUS AND ARNOLD A. GRANT, DEFENDANTS-RESPONDENTS.
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This opinion is uncorrected and will not be published in the printed Official Reports.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
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 , affd 100 NY2d 626 ;
Johnson v Phillips, 261 AD2d 269, 271 ), 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 , quoting Murtagh v Beachy, 6 AD3d 786, 788 ).
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 ). 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 ; Vidal v Tsitsiashvili,
297 AD2d 638 ; O'Callaghan v ...
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