        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

834
CA 14-02094
PRESENT: CENTRA, J.P., CARNI, LINDLEY, AND DEJOSEPH, JJ.


NICOLE VARI, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

PETER A. CAPITANO, DEFENDANT-APPELLANT,
ET AL., DEFENDANT.


LAW OFFICE OF DESTIN C. SANTACROSE, BUFFALO (LISA M. DIAZ-ORDAZ OF
COUNSEL), FOR DEFENDANT-APPELLANT.

GELBER & O’CONNELL, LLC, AMHERST (KRISTOPHER A. SCHWARZMUELLER OF
COUNSEL), FOR PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (Diane Y.
Devlin, J.), entered July 3, 2014. The order, insofar as appealed
from, granted those parts of plaintiff’s motion seeking partial
summary judgment against defendant Peter A. Capitano on the issue of
negligence, and dismissal of defendant Peter A. Capitano’s affirmative
defense of comparative negligence.

     It is hereby ORDERED that the order insofar as appealed from is
unanimously reversed on the law without costs, and those parts of the
motion seeking summary judgment on the issue of defendant Peter A.
Capitano’s negligence and dismissal of that defendant’s first
affirmative defense insofar as it asserts comparative negligence are
denied.

     Memorandum: Plaintiff commenced this consolidated personal
injury action for injuries she sustained in two separate motor vehicle
accidents. Only the first accident, which occurred on November 6,
2008 and involved plaintiff and Peter A. Capitano (defendant), is at
issue on appeal. Plaintiff moved for partial summary judgment on the
issue of defendant’s negligence and to dismiss defendant’s first
affirmative defense, which was premised on “the culpable conduct of
the plaintiff, including comparative negligence and assumption of risk
. . . and failure to wear a seatbelt.” Defendant contends that
Supreme Court erred in granting that part of the motion concerning
defendant’s negligence, as well as that part of the motion seeking
dismissal of the first affirmative defense insofar as it asserts
comparative negligence. We agree.

     Plaintiff testified at her deposition that she was stopped at a
red light when defendant’s vehicle hit her vehicle from behind.
Although the fact that defendant’s vehicle rear-ended plaintiff’s
                                 -2-                          834
                                                        CA 14-02094

stopped vehicle establishes a prima facie case of negligence, we
conclude that there is evidence of a nonnegligent explanation for the
collision sufficient to preclude an award of summary judgment to
plaintiff (see Johnson v Yarussi Constr., Inc., 74 AD3d 1772, 1772-
1773; Ramadan v Maritato, 50 AD3d 1620, 1621). Defendant testified at
his deposition that he brought his vehicle to a complete stop behind
plaintiff’s vehicle and that, when the light turned green, plaintiff
“took off” and then “stopped dead,” giving him no opportunity to stop
his vehicle in time to avoid the collision. Defendant’s account of
the accident was also supported by the deposition testimony of a
nonparty witness. Given the divergent accounts of the manner in which
the accident occurred, “there remains an issue of fact with regard to
the respective negligence, if any, on the part of plaintiff and
defendant[]” (Palmer v Horton, 66 AD3d 1433, 1434; see Johnson, 74
AD3d at 1772-1773; Ramadan, 50 AD3d at 1621).




Entered:   July 2, 2015                        Frances E. Cafarell
                                               Clerk of the Court
