Emmanuel v. Tholl
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Opinion
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Bureau Thomas J.K. Smith, State Reporter
Emmanuel v Tholl
2026 NY Slip Op 04280
July 8, 2026
Appellate Division, Second Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This decision is uncorrected and subject to revision before publication in the Official Reports.
Shaquilla Maloney Emmanuel, plaintiff,
v
Eric M. Tholl, et al., respondents, Jody K. Visek, et al., appellants.
Supreme Court of the State of New York, Appellate Division, Second Judicial Department
Decided on July 8, 2026
2024-11767, (Index No. 708282/22)
Angela G. Iannacci, J.P.
Paul Wooten
Lourdes M. Ventura
Lisa S. Ottley, JJ.
Kevin P. Westerman, Garden City, NY (Michael Callari III of counsel), for appellants.
John J. Bello, Jr., New York, NY (William C. Muller of counsel), for respondents.
DECISION & ORDER
In an action to recover damages for personal injuries, the defendants Jody K. Visek and Kaufman Enterprises, LLC, appeal from an order of the Supreme Court, Queens County (Ulysses B. Leverett, J.), entered October 3, 2024. The order granted the motion of the defendants Eric M. Tholl and SDG Management Co, LLC, for summary judgment dismissing the complaint and all cross-claims insofar as asserted against them.
ORDERED that the appeal from so much of the order as granted that branch of the motion of the defendants Eric M. Tholl and SDG Management Co, LLC, which was for summary judgment dismissing the complaint insofar as asserted against them is dismissed, as the defendants Jody K. Visek and Kaufman Enterprises, LLC, are not aggrieved by that portion of the order (see CPLR 5511; Mixon v TBV, Inc., 76 AD3d 144, 156-157); and it is further,
ORDERED that the order is reversed insofar as reviewed, on the law, and that branch of the motion of the defendants Eric M. Tholl and SDG Management Co, LLC, which was for summary judgment dismissing all cross-claims insofar asserted against them is denied; and it is further,
ORDERED that one bill of costs is awarded to the defendants Jody K. Visek and Kaufman Enterprises, LLC, payable by the defendants Eric M. Tholl and SDG Management Co, LLC.
In July 2021, a three-vehicle accident occurred on the eastbound Long Island Expressway. The lead vehicle was operated by the plaintiff. The middle vehicle was operated by the defendant Eric M. Tholl and owned by the defendant SDG Management Co, LLC (hereinafter together the Tholl defendants). The rear vehicle was operated by the defendant Jody K. Visek and owned by the defendant Kaufman Enterprises, LLC (hereinafter together the Visek defendants).
The plaintiff commenced this action against the defendants to recover damages for personal injuries allegedly sustained in the accident. In their answer, the Visek defendants asserted a single cross-claim against the Tholl defendants, for contribution. Subsequently, the Tholl defendants moved, inter alia, for summary judgment dismissing all cross-claims insofar as asserted against them. The Visek defendants opposed the motion. In an order entered October 3, 2024, the Supreme Court, among other things, granted that branch of the Tholl defendants' motion. The Visek [*2]defendants appeal.
Vehicle and Traffic Law § 1129(a) provides that "[t]he driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon and the condition of the highway." 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, requiring that operator to come forward with evidence of a nonnegligent explanation for the collision to rebut the inference of negligence (see McPhaul-Guerrier v Leppla, 201 AD3d 920, 921-922; Mihalatos v Barnett, 175 AD3d 492, 493). Evidence that a vehicle was struck in the rear and propelled into the vehicle in front of it may provide a sufficient nonnegligent explanation for the collision (see McPhaul-Guerrier v Leppla, 201 AD3d at 922; Daniel v Ian-Michael, 188 AD3d 1155, 1156). Thus, in a three-vehicle chain-collision accident, the defendant operator of the middle vehicle may establish his or her prima facie entitlement to judgment as a matter of law by demonstrating that the middle vehicle was properly stopped behind the lead vehicle when it was struck from behind by the rear vehicle and propelled into the lead vehicle (see McPhaul-Guerrier v Leppla, 201 AD3d at 922; Daniel v Ian-Michael, 188 AD3d at 1156).
Here, the Tholl defendants failed to make a prima facie showing of entitlement to judgment as a matter of law. In support of their motion, the Tholl defendants submitted, inter alia, transcripts of the deposition testimony of the plaintiff, Visek, and Tholl, who provided conflicting accounts regarding the number and sequence of impacts in this multiple-vehicle accident. The differing accounts raised triable issues of fact as to how the accident occurred and whether Tholl was at fault in the happening of the accident (see Vargas v Town of Huntington, 206 AD3d 1034, 1035; Weiss v Arunsi, 184 AD3d 606, 607). Accordingly, the Supreme Court should have denied that branch of the Tholl defendants' motion which was for summary judgment dismissing all cross-claims insofar as asserted against them, without regard to the sufficiency of the opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).
IANNACCI, J.P., WOOTEN, VENTURA and OTTLEY, JJ., concur.
ENTER:
Darrell M. Joseph
Clerk of the Court
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