The following papers having been read on this motion: Notice of Motion (Dalessio) 1 Notice of Cross-Motion (Deady) 2 Opposition to Motion and Cross-Motion (LaGrega) 3 Opposition to Motion and Cross-Motion (Plaintiff) 4 Reply to Motion 5 Reply to Motion 6 Reply to Cross-Motion 7 Reply to Cross-Motion 8 Defendant Dalessio moves for an order pursuant to CPLR §3212, awarding her summary judgment and dismissing the complaint in this rear-end collision negligence action. Defendant Deady has cross-moved for the same relief. It should be noted that Defendant Deady has adopted in full the exhibits and evidence attached to Defendant Dalessio as part of its cross-motion and has not submitted any additional evidence in support of the same relief. Defendant LaGrega and Plaintiffs have opposed both motions. Based upon the following, both the motion and the cross-motion are hereby granted in their entirety and the complaint as well as any cross-claims against Defendant Dalessio and Defendant Deady are hereby dismissed. The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. Alvarez v. Prospect Hospital, 68 NY2d 320, 508 NYS2d 923 (1968). To make a prima facie showing, the motion must be supported by affidavit, a copy of the pleadings and by other available proof, such as depositions and written admissions. Id. Once a prima facie showing has been made, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact, which require a trial of the action. Id.; see also Zuckerman v. City of New York, 49 NY2d 557, 427 NYS2d 595 (1980). It is well established that when a driver approaches another vehicle from the rear, he is bound to maintain a reasonably safe rate of speed, maintain control of his vehicle, and use reasonable care to avoid colliding with the other vehicle. Gallo v. Jairath, 122 AD3d 795, 996 NYS2d 682 (2nd Dept., 2014). A trailing driver’s conduct in failing to leave reasonable distance creates the possibility that a sudden stop will be necessary. Cajas-Romero v. Ward, 106 AD3d 850, 965 NYS2d 559 (2nd Dept., 2013). A rear-end collision establishes a prima facie case of negligence on the part of the rear vehicle, thereby requiring that operator to rebut the inference of negligence by providing a non-negligent explanation for the collision. Plummer v. Nourddine, 82 AD3d 1069, 919 NYS2d 187 (2nd Dept., 2011). However, 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. Ortiz v. Haidar, 68 AD3d 953, 892 NYS2d 122 (2nd Dept., 2009). On the other hand, the rear-most driver in a chain-reaction collision is presumed responsible. Macauley v. Elrac, Inc., 6 AD3d 584, 775 NYS2d 78 (2nd Dept., 2004). In the instant case, on April 2, 2017, at approximately 9:45 AM, Plaintiffs, Defendants, and two other non-parties were involved in a chain-reaction rear-end collision. The facts that appear undisputed between the parties are the order in which the vehicles were when the accident happened; that is, non-party Abrams was the lead vehicle, followed by another non-party, followed by Plaintiffs’ vehicle, Defendant LaGrega, Defendant Deady, and then followed by Defendant Dalessio. The submissions before the Court include the deposition testimony from both Plaintiff Ross and Plaintiff McKithen, as well as the deposition testimony from Defendant LaGrega, Defendant Deady, and Defendant Dalessio. The motions papers also include a deposition from non-party Abrams; however, a review of this testimony does not assist the Court whatsoever in ascertaining the sequence of events at issue between the parties. The salient testimony for the instant applications comes predominantly from the testimony provided by the opponents to the motion, with both Plaintiffs providing nearly identical testimony at their respective depositions. According to both of them, the vehicle of the non-party directly in front of them stopped abruptly and their vehicle then stopped just a few feet shy of that car ahead of them. Furthermore, they were stopped for approximately five seconds before they felt a big impact from the rear. Plaintiffs further agree that after the big impact from the rear, where the rear windshield broke, their vehicle was pushed into the car of the non-party ahead of them. Neither Plaintiff testified to any additional impacts or contact being made with their vehicle aside from these two. Coinciding with this, while Defendant LaGrega differs slightly from Plaintiffs account, asserting that Plaintiffs’ vehicle struck the non-party ahead of them prior to his vehicle coming into contact with Plaintiffs’ vehicle, Defendant LaGrega acknowledges that he struck Plaintiffs’ vehicle in the rear. Defendant LaGrega’s testimony is certain that, from his perspective, he struck Plaintiffs’ vehicle, then he was struck in the rear, and no other impacts were made beyond these two involving his vehicle. Given the testimony provided by Plaintiff Ross, Plaintiff McKithen, and Defendant LaGrega, it is clear to this Court that there is a significant break in the causal chain between Defendant Deady and Defendant LaGrega, thus no liability can be found as to these Defendants. Without either the Plaintiffs or Defendant LaGrega testifying to feeling or seeing three separate impacts to their respective vehicles, it is of no consequence that Defendant Dalessio struck the rear of Defendant Deady’s vehicle who then struck the rear of Defendant LaGrega’s vehicle. The impact caused by Defendant Dalessio did not cause a subsequent impact to Defendant LaGrega’s vehicle nor Plaintiffs’ vehicle. Likewise, since the testimony provided is unwavering that Defendant Deady was first struck in the rear, then was pushed into the vehicle in front of him, and he only suffered these two impacts to his vehicle, he cannot be found liable as and against Plaintiffs, as this sufficient non-negligent explanation is sufficient to rebut any presumptions against him. Thus, both Defendant Deady and Defendant Dalessio have established their prima facie entitlement to judgment as a matter of law, and the burden is shifted to the remaining parties to demonstrate a triable issue of fact still exists. However, since all opponents to the motion rely solely on the depositions transcripts already submitted in support of the motion, and no additional evidence has been submitted by either Plaintiffs or Defendant LaGrega, no such issue can be found. Therefore, both the motion and the cross-motion are hereby granted and the complaint as well as any cross-claims as and against Defendant Deady and Defendant Dalessio are hereby dismissed. Defendant Deady shall file and serve a copy of the within order with notice of entry upon all parties within thirty (30) days from the date of this order. Defendant Deady shall also serve a copy of the within order with notice of entry upon the clerk of the DCM Trial Part within the same timeframe. The remaining parties shall appear as scheduled in the DCM Trial Part of Supreme Court, Nassau County, on July 9, 2019, at 9:30am. Finally, in light of the foregoing, the caption is hereby amended to reflect the dismissal as outlined above as followed: “MICHAEL ROSS and JANISHA MCKITHEN, Plaintiffs, against ARTHUR LAGREGA, Defendant.” This hereby constitutes the decision and order of this Court. Dated: July 5, 2019
