McRae v. City of N.Y.

208 A.D.3d 775

174 N.Y.S.3d 418

Nathaniel C. MCRAE, respondent,

v.CITY OF NEW YORK, defendant,Metropolitan Transportation Authority, et al., appellants.

2021–07749

Index No. 508337/18

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

Argued—June 16, 2022

August 24, 2022

Anna J. Ervolina, Brooklyn, NY (Timothy J. O'Shaughnessy of counsel), for appellants.

Alex Yadgarov & Associates P.C., Rosedale, NY (Andrew Lavadera and Michael A. Stea of counsel), for respondent.

BETSY BARROS, J.P., JOSEPH J. MALTESE, PAUL WOOTEN, BARRY E. WARHIT, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for personal injuries, the defendants Metropolitan Transportation Authority, MTA Bus Company, NYC Transit Authority, and Jose Pena appeal from an order of the Supreme Court, Kings County (Rosemarie Montalbano, J.), dated September 16, 2021. The order granted the plaintiff's motion for summary judgment on the issue of liability against the defendants Metropolitan Transportation Authority, MTA Bus Company, NYC Transit Authority, and Jose Pena.

ORDERED that the order is affirmed, with costs.

On February 12, 2018, at approximately 8:00 p.m., a bus operated by Jose Pena struck the plaintiff's vehicle in the rear. The plaintiff commenced this personal injury action against, among others, Metropolitan Transportation Authority, MTA Bus Company, NYC Transit Authority, and Pena (hereinafter collectively the defendants), and subsequently moved for summary judgment on the issue of liability against the defendants. By order dated September 16, 2021, the Supreme Court granted the plaintiff's motion. The defendants appeal.

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 (see Perez v. Persad, 183 A.D.3d 771, 771, 123 N.Y.S.3d 683 ). "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" ( Witonsky v. New York City Tr. Auth., 145 A.D.3d 938, 939, 43 N.Y.S.3d 505 [internal quotation marks omitted]). "Stops by a lead vehicle which are foreseeable under the prevailing traffic conditions, even if sudden and frequent, must be anticipated by the driver who follows" ( Perez v. Persad, 183 A.D.3d at 771–772, 123 N.Y.S.3d 683 ; see Buchanan v. Keller, 169 A.D.3d 989, 991–992, 95 N.Y.S.3d 252 ). "Moreover, an assertion that the lead vehicle came to a sudden stop, standing alone, is insufficient to rebut the presumption of negligence on the part of the operator of the rear vehicle" ( Perez v. Persad, 183 A.D.3d at 772, 123 N.Y.S.3d 683 ). "A plaintiff is no longer required to show freedom from comparative fault to establish her or his prima facie entitlement to judgment as a matter of law on the issue of liability" ( Xin Fang Xia v. Saft, 177 A.D.3d 823, 825, 113 N.Y.S.3d 249 ; see Rodriguez v. City of New York, 31 N.Y.3d 312, 76 N.Y.S.3d 898, 101 N.E.3d 366 ).

Here, the plaintiff established, prima facie, that Pena's negligence was a proximate cause of the accident. In support of his motion, the plaintiff submitted an affidavit in which he averred that his vehicle was stopped at a red light when it was struck in the rear by the bus operated by Pena (see Rodriguez v. City of New York, 31 N.Y.3d 312, 76 N.Y.S.3d 898, 101...