Hernandez v Advance Tr. Co., Inc.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Decided on December 13, 2012
Gonzalez, P.J., Mazzarelli, Acosta, Roman, JJ.
Order, Supreme Court, Bronx County (Geoffrey D. Wright, J.), entered on or about November 30, 2011, which denied defendants' Advance Transit Co. Inc. (Advance) and Franklin S. Lopez's motion to renew a prior order of the same court and Justice, entered on or about July 29, 2010, and for summary judgment, unanimously affirmed, without costs.
In this action for personal injuries allegedly suffered by plaintiff while she was a passenger in a vehicle owned by defendant Advance and operated by defendant Lopez when it was rear-ended by a vehicle driven by defendant Joseph DiGerardo, Jr., the motion court properly denied summary judgment to defendants Advance and Lopez. Although a rear-end collision with a stopped vehicle creates a presumption of negligence on the part of the operator of the moving vehicle (see Berger v New York City Hous. Auth., 82 AD3d 531 [1st Dept 2011]), summary judgment is not warranted where, as here, there are questions of fact as to whether the stopped vehicle was the proximate cause of the accident. There is evidence indicating that defendant Lopez's vehicle "suddenly swerved from the extreme right lane to the far left lane (across two lanes of traffic) and suddenly stopped short" just prior to the collision.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: DECEMBER 13, 2012
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