Nsiah-Ababio v. Hunter

Nov 3, 2010
Versions:78 A.D.3d 672
913 N.Y.S.2d 659

Ordered that the order is reversed, on the law, with costs, and the plaintiff‘s motion for summary judgment on the issue of liability is granted.

The plaintiff allegedly sustained personal injuries when the motor vehicle he was operating was struck in the rear by a vehicle owned by the defendant B.O. Astra Management Corp. and operated by the defendant Charles D. Hunter. Following joinder of issue and some pretrial discovery, the plaintiff moved for summary judgment on the issue of liability. The Supreme Court denied the motion. We reverse.

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 (see Vehicle and Traffic Law § 1129 [a]; see generally Pawlukiewicz v Boisson, 275 AD2d 446, 447 [2000]; Maxwell v Lobenberg, 227 AD2d 598, 598-599 [1996]). Here, the plaintiff demonstrated his prima facie entitlement to judgment as a matter of law by submitting his own deposition testimony regarding the circumstances of the accident and his proper operation of his vehicle, as well as the defendant Hunter‘s admission, made immediately following the accident and memorialized in a police accident report (see Nieves v JHH Transp., LLC, 40 AD3d 1060 [2007]), that his vehicle struck the plaintiff‘s vehicle in the rear. In opposition to this prima facie showing, the defendants failed to raise a triable issue of fact (see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). In this regard, the defendants’ contention that the motion should have been denied pursuant to CPLR 3212 (f) as premature is unpersuasive. Accordingly, the Supreme Court should have granted the plaintiff‘s motion for summary judgment on the issue of liability. Mastro, J.P., Fisher, Leventhal and Belen, JJ., concur.

Ordered that the order is affirmed, with costs.

This action arises from a two-car motor vehicle accident which occurred on the evening of January 27, 2008, in the Far Rockaway section of Queens. While the defendants met their prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., 98 NY2d 345 [2002]; Gaddy v Eyler, 79 NY2d 955, 956-957 [1992]; Srebnick v Quinn, 75 AD3d 637 [2010]), in opposition, the plaintiff‘s submissions raised a triable issue of fact (see Tai Ho Kang v Young Sun Cho, 74 AD3d 1328 [2010]). The plaintiff‘s treating physician reported significant limitations of motion in the cervical and lumbar regions of the plaintiff‘s spine both contemporaneously with the accident and at a recent examination of the plaintiff.

Accordingly, the Supreme Court properly denied the defendants’ motion for summary judgment dismissing the complaint. Mastro, J.P., Fisher, Leventhal and Belen, JJ., concur.