Diako v. Yunga

Appellate Division of the Supreme Court of New York

Diako v. Yunga

126 A.D.3d 567, 3 N.Y.S.3d 577

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 19, 2015

Docket14544 309612/11

StatusPublished

This text of 126 A.D.3d 567 (Diako v. Yunga) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Diako v. Yunga, 126 A.D.3d 567, 3 N.Y.S.3d 577 (N.Y. Ct. App. 2015).

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Opinion

Order, Supreme Court, Bronx County (Kenneth L. Thompson, Jr., J.), entered February 14, 2014, which denied plaintiffs motion for partial summary judgment on the issue of liability, unanimously reversed, on the law, without costs, and the motion granted.

Plaintiff established entitlement to judgment as a matter of law on the issue of liability by submitting his testimony that he was traveling in the left lane of an expressway at 50 miles per hour when defendants’ vehicle came up behind him at a rapid rate of speed and struck the rear end of his vehicle (see Cruz v Lise, 123 AD3d 514 [1st Dept 2014]; Cabrera v Rodriguez, 72 AD3d 553 [1st Dept 2010]).

In opposition, defendants failed to come forward with a non-negligent explanation for the accident (see e.g. Johnson v Phillips, 261 AD2d 269, 271 [1st Dept 1999]). Defendant driver Yunga testified that he was traveling in the left lane, 200 feet behind plaintiffs vehicle, when he saw plaintiff begin to pump his breaks and gradually slow down. The gap between the vehicles closed and then plaintiff made a sudden stop causing Yunga to “tap” the rear of plaintiffs vehicle. Defendants’ assertion that plaintiff came to a sudden stop “is insufficient to rebut the presumption of negligence” (Cabrera at 553; see Santana v Tic-Tak Limo Corp., 106 AD3d 572 [1st Dept 2013]).

We have considered defendants’ remaining arguments and find them unavailing.

Concur — Tom, J.P., Acosta, Andrias, Moskowitz and Kapnick, JJ.

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Order, Supreme Court, Bronx County (Kenneth L. Thompson, Jr., J.), entered February 14, 2014, which denied plaintiffs motion for partial summary judgment on the issue of liability, unanimously reversed, on the law, without costs, and the motion granted.

Plaintiff established entitlement to judgment as a matter of law on the issue of liability by submitting his testimony that he was traveling in the left lane of an expressway at 50 miles per hour when defendants’ vehicle came up behind him at a rapid rate of speed and struck the rear end of his vehicle (see Cruz v Lise, 123 AD3d 514 [1st Dept 2014]; Cabrera v Rodriguez, 72 AD3d 553 [1st Dept 2010]).

In opposition, defendants failed to come forward with a non-negligent explanation for the accident (see e.g. Johnson v Phillips, 261 AD2d 269, 271 [1st Dept 1999]). Defendant driver Yunga testified that he was traveling in the left lane, 200 feet behind plaintiffs vehicle, when he saw plaintiff begin to pump his breaks and gradually slow down. The gap between the vehicles closed and then plaintiff made a sudden stop causing Yunga to “tap” the rear of plaintiffs vehicle. Defendants’ assertion that plaintiff came to a sudden stop “is insufficient to rebut the presumption of negligence” (Cabrera at 553; see Santana v Tic-Tak Limo Corp., 106 AD3d 572 [1st Dept 2013]).

We have considered defendants’ remaining arguments and find them unavailing.

Concur — Tom, J.P., Acosta, Andrias, Moskowitz and Kapnick, JJ.

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126 A.D.3d 567, 3 N.Y.S.3d 577, Counsel Stack Legal Research, https://law.counselstack.com/opinion/diako-v-yunga-nyappdiv-2015.

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