Liddell v. Morrison

204 A.D.3d 987

165 N.Y.S.3d 342 (Mem)

Nathaniel LIDDELL, respondent,

v.Rodrick E. MORRISON, appellant.

2020–02916

Index No. 506398/18

Supreme Court, Appellate Division, Second Department, New York.

Submitted—February 3, 2022

April 27, 2022

Hannum Feretic Prendergast & Merlino, LLC, New York, NY (Alexander Johnson of counsel), for appellant.

Georgaklis & Mallas PLLC, Brooklyn, NY (Anthony Mangona of counsel), for respondent.

ANGELA G. IANNACCI, J.P., REINALDO E. RIVERA, PAUL WOOTEN, DEBORAH A. DOWLING, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Kings County (Carolyn E. Wade, J.), dated January 24, 2020. The order, insofar as appealed from, granted that branch of the plaintiff's motion which was for summary judgment on the issue of liability.

ORDERED that the order is affirmed insofar as appealed from, with costs.

On June 20, 2017, a vehicle operated by the defendant struck the rear of a bus operated by the plaintiff while the bus was stopped at a red traffic signal. In March 2018, the plaintiff commenced this action to recover damages for personal injuries against the defendant. Thereafter, the plaintiff moved, inter alia, for summary judgment on the issue of liability. In an order dated January 24, 2020, the Supreme Court, among other things, granted that branch of the plaintiff's motion which was for summary judgment on the issue of liability. The defendant appeals.

"A driver of a vehicle approaching another vehicle from the rear is required to maintain a reasonably safe distance and rate of speed under the prevailing conditions to avoid colliding with the other vehicle" ( Xin Fang Xia v. Saft, 177 A.D.3d 823, 825, 113 N.Y.S.3d 249 [internal quotation marks omitted]; see Vehicle and Traffic Law § 1129[a] ). "As such, it is settled that ‘a rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the operator of the rear vehicle, thereby requiring that operator to rebut the inference of negligence by providing a nonnegligent explanation for the collision’ " ( Pollet v. Charyn, 200 A.D.3d 728, 730, 159 N.Y.S.3d 92, quoting Drakh v. Levin, 123 A.D.3d 1084, 1085, 1 N.Y.S.3d 202 ). However, "[t]he operator of a vehicle who becomes involved in an accident as the result of suffering a sudden medical emergency will not be chargeable with negligence as long as the emergency was unforeseen" ( Serpas v. Bell, 117 A.D.3d 712, 713, 985 N.Y.S.2d 288 ).

Here, the plaintiff averred in his affidavit that the bus he was operating was stopped at a red traffic signal when the bus was struck from behind by the defendant's vehicle. Thus, the plaintiff established, prima facie, that the defendant's negligence was a proximate cause of the accident (see Diamond v. Comins, 194 A.D.3d 784, 785, 148 N.Y.S.3d 492 ; Perez v. Persad, 183 A.D.3d 771, 772, 123 N.Y.S.3d 683 ). In opposition, the defendant failed to raise a triable issue of fact as to whether he suffered a sudden and unforeseeable medical emergency that constituted a nonnegligent explanation for the accident, since he did not present any competent or expert medical evidence regarding the existence of the claimed medical emergency and its unforeseeable nature (see Pitt v. Mroz, 146 A.D.3d 913, 914, 45 N.Y.S.3d 206 ; Serpas v. Bell, 117 A.D.3d 712, 985 N.Y.S.2d 288 ; Sang Hyub Han v. Onyan, 83 A.D.3d 1037, 1038, 921 N.Y.S.2d 533 ; Mowton v. Rabiner, 40 A.D.3d 1058, 836 N.Y.S.2d 687 ; Parisella v. Jack Haverty's Auto Parts, Inc., 296 A.D.2d 539, 745 N.Y.S.2d 494 ; Chiaia v. Bostic, 279 A.D.2d 495, 496, 719 N.Y.S.2d 277 ). Moreover, the defendant did not submit an affidavit describing his medical condition or explaining how such condition caused the accident.

Further, the defendant's contention that the plaintiff's motion was...