

Diako v Yunga (2015 NY Slip Op 02198)





Diako v Yunga


2015 NY Slip Op 02198


Decided on March 19, 2015


Appellate Division, First Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on March 19, 2015

Tom, J.P., Acosta, Andrias, Moskowitz, Kapnick, JJ.


14544 309612/11

[*1] Elhadj Y. Diako, Plaintiff-Appellant,
vLeonardo Dany Aguirre Yunga, et al., Defendants-Respondents.


Macaluso & Fafinski, P.C., Bronx (Donna A. Fafinski of counsel), for appellant.
Amabile & Erman, PC, Staten Island (Marc J. Falcone of counsel), for respondents.

Order, Supreme Court, Bronx County (Kenneth L. Thompson, Jr., J.), entered February 14, 2014, which denied plaintiff's 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 nonnegligent 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 plaintiff's 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 plaintiff's 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.
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: MARCH 19, 2015
CLERK


