Mihalatos v. Barnett

175 A.D.3d 492

106 N.Y.S.3d 165

Eleni MIHALATOS, Plaintiff-Respondent,

v.Ophelia BARNETT, et al., Defendants-Respondents,Kimberly Budziak, Appellant, et al., Defendants.

2018–04578

Index No. 701220/17

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

Submitted - May 21, 2019

August 7, 2019

Mulholland Minion Davey McNiff & Beyrer, Williston Park, N.Y. (Robert A. Seeman and Brian R. Davey of counsel), for appellant.

ALAN D. SCHEINKMAN, P.J., MARK C. DILLON, JOHN M. LEVENTHAL, ROBERT J. MILLER, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendant Kimberly Budziak appeals from an order of the Supreme Court, Queens County (Frederick D.R. Sampson, J.), entered March 30, 2018. The order denied that defendant's motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against her.

ORDERED that the order is reversed, on the law, with costs, and the motion of the defendant Kimberly Budziak for summary judgment dismissing the complaint and all cross claims insofar as asserted against her is granted.

This action arises from a multiple-vehicle collision, in which the lead vehicle in the chain was operated by the plaintiff, the second vehicle was operated by the defendant Edmond Hakimi, the third vehicle was operated by the defendant Kimberly Budziak, and the fourth, and last, vehicle in the chain was operated by the defendant Ophelia Barnett. The plaintiff commenced this action against, among others, Budziak, to recover damages for personal injuries. Budziak moved for summary judgment dismissing the complaint and all cross claims insofar as asserted against her, arguing that she was stopped in traffic behind Hakimi's vehicle when her vehicle was struck in the rear by Barnett's vehicle and propelled into Hakimi's vehicle. In an order entered March 30, 2018, the Supreme Court denied the motion, and Budziak 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’ " ( Jimenez v. Ramirez , 171 A.D.3d 902, 903, 98 N.Y.S.3d 131, quoting Nsiah–Ababio v. Hunter , 78 A.D.3d 672, 672, 913 N.Y.S.2d 659 ; see Vehicle and Traffic Law § 1129[a] ). "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, requiring that operator to come forward with evidence of a nonnegligent explanation for the collision to rebut the inference of negligence" ( Jimenez v. Ramirez , 171 A.D.3d at 903, 98 N.Y.S.3d 131 ; see Williams v. Sala , 152 A.D.3d 729, 59 N.Y.S.3d 108 ). " ‘Evidence that a vehicle was struck in the rear and propelled into the vehicle in front of it may provide a sufficient non-negligent explanation’ " ( Williams v. Sala , 152 A.D.3d at 729, 59 N.Y.S.3d 108, quoting Ortiz v. Haidar , 68 A.D.3d 953, 954, 892 N.Y.S.2d 122 ). Thus, "[i]n a chain collision accident, the operator of the middle vehicle may establish prima facie entitlement to judgment as a matter of law by demonstrating that the middle vehicle was properly stopped behind the lead vehicle when it was struck from behind by the rear vehicle and propelled into the lead vehicle" ( Chuk Hwa Shin v. Correale , 142 A.D.3d 518, 519, 36 N.Y.S.3d 213 ; see Arellano v. Richards , 162 A.D.3d 967, 967–968, 79 N.Y.S.3d 288 ).

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