Mahmud v. Ouyang

208 A.D.3d 861

174 N.Y.S.3d 721

Saifuddin MAHMUD, appellant,

v.Feng OUYANG, respondent.

2021–06721

Index No. 717385/19

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

Argued—June 23, 2022

August 31, 2022

Omrani & Taub, P.C., New York, NY (James L. Forde of counsel), for appellant.

Baker, McEvoy & Moskovits, P.C. (Marjorie E. Bornes, Brooklyn, NY, of counsel), for respondent.

COLLEEN D. DUFFY, J.P., VALERIE BRATHWAITE NELSON, PAUL WOOTEN, JOSEPH A. ZAYAS, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Pam Jackman–Brown, J.), entered August 5, 2021. The order denied the plaintiff's motion for summary judgment on the issue of liability and dismissing the defendant's third affirmative defense, which alleged comparative fault, with leave to renew upon the completion of discovery.

ORDERED that the order is reversed, on the law, with costs, and the plaintiff's motion for summary judgment on the issue of liability and dismissing the defendant's third affirmative defense is granted.

On April 29, 2018, the plaintiff allegedly sustained personal injuries while driving in Queens when his vehicle was struck in the rear by a vehicle operated by the defendant. In October 2019, the plaintiff commenced this action against the defendant to recover damages for personal injuries. In a verified answer, the defendant asserted affirmative defenses including the third affirmative defense, which alleged comparative fault by the plaintiff. Thereafter, the plaintiff moved for summary judgment on the issue of liability and dismissing the defendant's third affirmative defense. In an order entered August 5, 2021, the Supreme Court denied the plaintiff's motion with leave to renew upon the completion of discovery. The plaintiff 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’ " ( Newfeld v. Midwood Ambulance & Oxygen Serv., Inc., 204 A.D.3d 813, 814, 164 N.Y.S.3d 497, quoting Nsiah–Ababio v. Hunter, 78 A.D.3d 672, 672, 913 N.Y.S.2d 659 ; see Vehicle and Traffic Law § 1129[a] ). Thus, "[a] rear-end collision with a vehicle that is slowing down 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" ( Hasan v. City of New York, 183 A.D.3d 572, 573, 121 N.Y.S.3d 653 ). "Although a sudden stop of the lead vehicle may constitute a nonnegligent explanation for a rear-end collision, vehicle stops which are foreseeable under the prevailing traffic conditions, even if sudden and frequent, ‘must be anticipated by the driver who follows, since he or she is under a duty to maintain a safe distance between his or her vehicle and the vehicle ahead’ " ( Grier–Key v. Lyons, 195 A.D.3d 798, 799, 145 N.Y.S.3d 819, quoting Arslan v. Costello, 164 A.D.3d 1408, 1409–1410, 84 N.Y.S.3d 229 ).

Here, the plaintiff established his prima facie entitlement to judgment as a matter of law through the submission of his own affidavit, in which he averred that his vehicle was slowing due to traffic when it was struck in the rear by the defendant's vehicle (see Sooklall v. Morisseav–Lafague, 185 A.D.3d 1079, 1081, 128 N.Y.S.3d 266 ; Lopez v. Dobbins, 164 A.D.3d 776, 79 N.Y.S.3d 566 ). The plaintiff also established his prima facie entitlement to judgment as a matter of law dismissing the defendant's third affirmative defense, which alleged comparative fault, by demonstrating that he was not negligent in the happening of the accident (see Newfeld v. Midwood Ambulance & Oxygen Serv., Inc., 204 A.D.3d at 814, 164 N.Y.S.3d 497 ; Lopez v. Dobbins, 164 A.D.3d at 777, 79 N.Y.S.3d 566 ). In opposition to the plaintiff's prima facie showings, the defendant failed to raise a triable issue of fact. Contrary to the defendant's contention, his claim that the plaintiff made a sudden stop, standing alone, was insufficient to raise a triable issue of fact as to whether the plaintiff negligently contributed to the accident under the circumstances of this case (see Lopez v. Dobbins, 164...