Polonia v. Frasca

208 A.D.3d 907

174 N.Y.S.3d 448

Rafael POLONIA, appellant,

v.Francesco FRASCA, defendant,Steve Laris, respondent.

2020–07528

Index No. 715694/18

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

Submitted—June 6, 2022

August 31, 2022

Krentsel Guzman Herbert, LLP, New York, NY (Marcia K. Raicus of counsel), for appellant.

Michael Ferro, Westbury, NY (Patricia McDonagh of counsel), for respondent.

ANGELA G. IANNACCI, J.P., JOSEPH A. ZAYAS, LARA J. GENOVESI, WILLIAM G. FORD, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Richard G. Latin, J.), entered September 28, 2020. The order, insofar as appealed from, granted that branch of the motion of the defendant Steve Laris which was for summary judgment dismissing the complaint insofar as asserted against him.

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

The plaintiff allegedly was injured when the vehicle he was operating was struck in the rear by a vehicle operated by the defendant Steve Laris. At the time of the accident, the plaintiff had been stopped at a red light. Laris was stopped behind the plaintiff when a third vehicle, operated by the defendant Francesco Frasca, struck Laris's vehicle from behind, propelling it into the plaintiff's vehicle.

The plaintiff commenced this action to recover damages for personal injuries against Laris and Frasca. After the completion of discovery, Laris moved, inter alia, for summary judgment dismissing the complaint insofar as asserted against him. By order entered September 28, 2020, the Supreme Court, among other things, granted that branch of the motion. The plaintiff appeals.

"A defendant moving for summary judgment in a negligence action has the burden of establishing, prima facie, that he or she was not at fault in the happening of the subject accident" ( Boulos v. Lerner–Harrington, 124 A.D.3d 709, 709, 2 N.Y.S.3d 526 ). "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 902, 903, 98 N.Y.S.3d 131 ; see Mihalatos v. Barnett, 175 A.D.3d 492, 493, 106 N.Y.S.3d 165 ). "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 for the collision" ( Daniel v. Ian–Michael, 188 A.D.3d 1155, 1156, 132 N.Y.S.3d 841 [internal quotation marks omitted]; see McPhaul–Guerrier v. Leppla, 201 A.D.3d 920, 922, 162 N.Y.S.3d 116 ).

Contrary to the plaintiff's...