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Markesinis v. Jaquez

Supreme Court of New York, Second Department

May 22, 2013

Nicholas Markesinis, appellant,
v.
Roni J. Jaquez, et al., respondents. Index No. 10003/11

McHugh & Lambrou, LLP, New York, N.Y. (Lambros Y. Lambrou and Julie T. Mark of counsel), for appellant.

Harris, King & Fodera (Mauro Lilling Naparty LLP, Woodbury, N.Y. [Matthew W. Naparty and David A. Beatty], of counsel), for respondents.

PETER B. SKELOS, J.P., L. PRISCILLA HALL, PLUMMER E. LOTT, SYLVIA HINDS-RADIX, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Ruchelsman, J.), dated April 25, 2012, which denied his motion for summary judgment on the issue of liability.

ORDERED that the order is affirmed, with costs.

A rear-end collision with a stopped vehicle creates a prima facie case of negligence with respect to the operator of the moving vehicle, and imposes a duty on that operator to rebut the inference of negligence by providing a nonnegligent explanation for the collision (see Tutrani v County of Suffolk, 10 N.Y.3d 906; Pollard v Independent Beauty & Barber Supply Co., 94 A.D.3d 845; Balducci v Velasquez, 92 A.D.3d 626; Perez v Roberts, 91 A.D.3d 620; Camarillo v Sandoval, 90 A.D.3d 593; Kastritsios v Marcello, 84 A.D.3d 1174). Here, the plaintiff established, prima facie, his entitlement to judgment as a matter of law by demonstrating that his vehicle was fully stopped at a red traffic light when it was hit in the rear by the defendants' vehicle (see Pollard v Independent Beauty & Barber Supply Co., 94 A.D.3d 845; Kastritsios v Marcello, 84 A.D.3d 1174; Ballatore v HUB Truck Rental Corp., 83 A.D.3d 978). In opposition, the defendants raised triable issues of fact as to whether the plaintiff was negligent in the operation of his vehicle, and whether his alleged negligence caused or contributed to the accident, through the affidavit of the defendant driver Roni J. Jaquez. Jaquez averred that the plaintiff's vehicle abruptly changed lanes, directly in front of his vehicle, and then came to a sudden stop. Accordingly, the Supreme Court properly denied the plaintiff's motion for summary judgment on the issue of liability (see Scheker v Brown, 85 A.D.3d 1007; Ortiz v Hub Truck Rental Corp., 82 A.D.3d 725; Reitz v Seagate Trucking, Inc., 71 A.D.3d 975; Abbott v Picture Cars E., Inc., 78 A.D.3d 869; Oguzturk v General Elec. Co., 65 A.D.3d 1110; Guerra v Cantos, 38 A.D.3d 714; Rozengauz v Lok Wing Ha, 280 A.D.2d 534).

SKELOS, J.P., HALL, LOTT and HINDS-RADIX, JJ., concur.


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