Marley v. MarleyMarley v. Marley
Ordered that the order is affirmed, with costs.
A rear-end collision with a stopped vehicle creates a prima facie case of negligence with respect to the operator of the moving vehicle, and imposes a duty on that operator to rebut the inference of negligence by providing a nonnegligent explanation for the collision (see Tutrani v County of Suffolk, 10 NY3d 906 [2008]; Pollard v Independent Beauty & Barber Supply Co., 94 AD3d 845 [2012]; Balducci v Velasquez, 92 AD3d 626 [2012]; Perez v Roberts, 91 AD3d 620 [2012]; Camarillo v Sandoval, 90 AD3d 593 [2011]; Kastritsios v Marcello, 84 AD3d 1174 [2011]). Here, the plaintiff established, prima facie, his entitlement to judgment as a matter of law by demonstrating that his vehicle was fully stopped at a red traffic light when it was hit in the rear by the defendants’ vehicle (see Pollard v Independent Beauty & Barber Supply Co., 94 AD3d 845 [2012]; Kastritsios v Marcello, 84 AD3d 1174 [2011]; Ballatore v HUB Truck Rental Corp., 83 AD3d 978 [2011]). In opposition, the defendants raised triable issues of fact as to whether the plaintiff was negligent in the operation of his vehicle, and whether his alleged negligence caused or contributed to the accident, through the affidavit of the defendant driver Roni J. Jaquez. Jaquez averred that the plaintiff‘s vehicle abruptly changed lanes, directly in front of his vehicle, and then came to a sudden stop. Accordingly, the Supreme Court properly denied the plaintiff‘s motion for summary judgment on the issue of liability (see Scheker v Brown, 85 AD3d 1007 [2011]; Ortiz v Hub Truck Rental Corp., 82 AD3d 725 [2011]; Reitz v Seagate Trucking, Inc., 71 AD3d 975 [2010]; Abbott v Picture Cars E., Inc., 78 AD3d 869 [2010]; Oguzturk v General Elec. Co., 65 AD3d 1110 [2009]; Guerra v Cantos, 38 AD3d 714 [2007]; Rozengauz v Lok Wing Ha, 280 AD2d 534 [2001]). Skelos, J.P., Hall, Lott and Hinds-Radix, JJ., concur.
BRUCE MARLEY, Respondent, v BARBARA MARLEY, Appellant. [965 NYS2d 375]—
Ordered that the amended judgment is modified, on the facts and in the exercise of discretion, by deleting the provision thereof directing the plaintiff to pay the defendant maintenance in the sum of $500 per week until the earlier of the defendant‘s attaining the age of 62, her retirement, her remarriage, or her death, and substituting therefor a provision directing the plaintiff to pay the defendant maintenance in the sum of $500 per week until the earlier of the defendant‘s attaining the age of 66, the plaintiff‘s retirement, the defendant‘s remarriage, or the defendant‘s death; as so modified, the amended judgment is affirmed insofar as appealed from, with costs to the defendant.
“[T]he amount and duration of maintenance is a matter committed to the sound discretion of the trial court, and every case must be determined on its own unique facts” (Siskind v Siskind, 89 AD3d 832, 833 [2011] [internal quotation marks omitted]). In determining the amount and duration of an award of maintenance, the Supreme Court “must consider the factors enumerated in
Contrary to the defendant‘s contention, the amount of maintenance awarded by the Supreme Court was consistent with the purpose and function of maintenance considering her education, ability to be self-supporting, good health, and lack of child-rearing responsibilities. However, in light of each party‘s age, as well as their respective financial circumstances, the Supreme Court should not have permitted maintenance payments to end upon the defendant‘s attaining the age of 62 or upon the defend-
The defendant‘s remaining contentions are either unpreserved for appellate review, not properly before this Court, or without merit. Mastro, J.P., Leventhal, Sgroi and Miller, JJ., concur.
METROPOLITAN PROPERTY AND CASUALTY INSURANCE COMPANY, as Subrogee of Joe McLaughlin, Appellant, v CLAUDIO‘S CONSTRUCTION AND HOME IMPROVEMENTS, Respondent. [965 NYS2d 371]—In a subrogation action to recover insurance benefits paid by the plaintiff to its insured for injury to property, the plaintiff appeals from an order of the Supreme Court, Westchester County (O. Bellantoni, J.), entered November 10, 2011, which granted the defendant‘s motion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
Under the particular circumstances of this case, the Supreme Court properly granted the defendant‘s motion for summary judgment dismissing the complaint. Mastro, J.P., Leventhal, Sgroi and Miller, JJ., concur.