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

769
CA 15-01980
PRESENT: WHALEN, P.J., SMITH, NEMOYER, CURRAN, AND SCUDDER, JJ.


JOANNA BAKER, ET AL., PLAINTIFFS,

                    V                             MEMORANDUM AND ORDER

ERIN SAVO, ET AL., DEFENDANTS.
--------------------------------------------
ERIN SAVO, THIRD-PARTY PLAINTIFF-RESPONDENT,

                    V

KANDACE M. HURYSZ, THIRD-PARTY
DEFENDANT-APPELLANT.


LAW OFFICE OF DANIEL R. ARCHILLA, BUFFALO (JOAN M. RICHTER OF
COUNSEL), FOR THIRD-PARTY DEFENDANT-APPELLANT.


     Appeal from an order of the Supreme Court, Erie County (Catherine
R. Nugent Panepinto, J.), entered March 30, 2015. The order denied
the motion of third-party defendant for summary judgment dismissing
the third-party complaint.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs, the motion is granted,
and the third-party complaint is dismissed.

     Memorandum: Plaintiffs commenced this action seeking damages for
injuries sustained by Joanna Baker (plaintiff) in a rear-end collision
when a vehicle operated by third-party defendant (Hurysz), in which
plaintiff was a passenger, was rear-ended by a vehicle operated by
defendant-third-party plaintiff (Savo). Savo commenced a third-party
action against Hurysz seeking indemnification and/or contribution. We
agree with Hurysz that Supreme Court erred in denying her motion
seeking summary judgment dismissing the third-party complaint.

     “[A] rear-end collision with a stopped or stopping vehicle
creates a prima facie case of negligence with respect to the operator
of the moving vehicle, and imposes a duty on the operator of the
moving vehicle to come forward with an adequate, [nonnegligent]
explanation for the accident” (Barron v Northtown World Auto, 137 AD3d
1708, 1709 [internal quotation marks omitted]; see Tate v Brown, 125
AD3d 1397, 1398; Ruzycki v Baker, 301 AD2d 48, 49). In support of her
motion, Hurysz submitted evidence that she had stopped her vehicle
after a pickup truck stopped directly in front of her, and the
collision occurred after Hurysz’s vehicle had been stopped for at
                                 -2-                           769
                                                         CA 15-01980

least 15 seconds (see Kovacic v Delmont, 134 AD3d 1460, 1461). We
therefore conclude that Hurysz established her entitlement to judgment
as a matter of law (see generally Zuckerman v City of New York, 49
NY2d 557, 562). In opposition to the motion, Savo submitted the
deposition testimony of the parties, which failed to provide a
nonnegligent explanation for the rear-end collision and therefore
failed to raise an issue of fact sufficient to defeat the motion (see
id.).




Entered:   September 30, 2016                   Frances E. Cafarell
                                                Clerk of the Court
