Thompson v. N.Y.C. Transit Auth.

208 A.D.3d 815

175 N.Y.S.3d 66

Lemuel THOMPSON, plaintiff-respondent,

v.NEW YORK CITY TRANSIT AUTHORITY, et al., appellants, Nathaniel McRae, defendant-Respondent.

2021–07937

Index No. 519319/18

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.

James G. Bilello, Hicksville, NY (Alina Vengerov of counsel), for defendant—respondent.

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

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants New York City Transit Authority, Manhattan and Bronx Surface Transit Operating Authority, Metropolitan Transportation Authority, and Jose Pena appeal from an order of the Supreme Court, Kings County (Rosemarie Montalbano, J.), dated September 16, 2021. The order, insofar as appealed from, granted that branch of the plaintiff's motion which was for summary judgment on the issue of liability against the defendants New York City Transit Authority and Jose Pena, and granted the separate motion of the defendant Nathaniel C. McRae for summary judgment dismissing the complaint and all cross claims insofar as asserted against him.

ORDERED that the appeal from so much of the order as granted that branch of the motion of the defendant Nathaniel C. McRae which was for summary judgment dismissing the complaint insofar as asserted against him is dismissed, as the defendants New York City Transit Authority, Manhattan and Bronx Surface Transit Operating Authority, Metropolitan Transportation Authority, and Jose Pena are not aggrieved by that portion of the order (see CPLR 5511 ; Mixon v. TBV, Inc., 76 A.D.3d 144, 904 N.Y.S.2d 132 ); and it is further,

ORDERED that the appeal by the defendants Manhattan and Bronx Surface Transit Operating Authority and Metropolitan Transportation Authority from so much of the order as granted that branch of the plaintiff's motion which was for summary judgment on the issue of liability against the defendants New York City Transit Authority and Jose Pena is dismissed, as those defendants are not aggrieved by that portion of the order (see CPLR 5511 ; Mixon v. TBV, Inc., 76 A.D.3d 144, 904 N.Y.S.2d 132 ); and it is further,

ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the motion of the defendant Nathaniel C. McRae which was for summary judgment dismissing all cross claims insofar as asserted against him, and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed insofar as reviewed; and it is further,

ORDERED that one bill of costs is awarded to the defendants New York City Transit Authority, Manhattan and Bronx Surface Transit Operating Authority, Metropolitan Transportation Authority, and Jose Pena, payable by the defendant Nathaniel C. McRae.

On February 12, 2018, at approximately 8:00 p.m., a vehicle operated by the defendant Nathaniel C. McRae was struck in the rear by a bus operated by the defendant Jose Pena. The plaintiff was sitting in the front passenger seat of McRae's vehicle when the accident occurred.

In September 2018, the plaintiff commenced this personal injury action against New York City Transit Authority (hereinafter NYCTA), Manhattan and Bronx Surface Transit Operating Authority, Metropolitan Transportation Authority, and Pena (hereinafter collectively the NYCTA defendants), and McRae. The NYCTA defendants and McRae asserted cross claims against one another.

On November 19, 2020, the plaintiff moved, inter alia, for summary judgment on the issue of liability against NYCTA and Pena. On December 8, 2020, McRae moved for summary judgment dismissing the complaint and all cross claims insofar as asserted against him. By order dated September 16, 2021, the Supreme Court, among other things, granted that branch of the plaintiff's motion which was for summary judgment on the issue of liability against NYCTA and Pena, and granted McRae's motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against him. The NYCTA 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...