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

1436
CA 12-01100
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, WHALEN, AND MARTOCHE, JJ.


JESSICA M. SCHMIDT, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

TINA M. GUENTHER, DEFENDANT-RESPONDENT,
MARK BESECKER, DEFENDANT-APPELLANT,
ET AL., DEFENDANTS.


ADAMS, HANSON, REGO, CARLIN, HUGHES, KAPLAN & FISHBEIN, WILLIAMSVILLE
(NICOLE B. PALMERTON OF COUNSEL), FOR DEFENDANT-APPELLANT.

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

KENNEY SHELTON LIPTAK NOWAK LLP, BUFFALO (AMANDA L. MACHACEK OF
COUNSEL), FOR DEFENDANT-RESPONDENT.


     Appeal from an order of the Supreme Court, Niagara County
(Catherine R. Nugent Panepinto, J.), entered May 9, 2012 in a personal
injury action. The order denied the motion of defendant Mark Besecker
for summary judgment dismissing the complaint and all cross claims
against him.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs, the motion is granted,
and the complaint and all cross claims against defendant Mark Besecker
are dismissed.

     Memorandum: Plaintiff commenced this personal injury action
after being involved in a four-vehicle rear-end collision in July 2008
on Transit Road near its intersection with Rapids Road in the Town of
Lockport. The first vehicle in the chain was operated by defendant
Heather E. Watt; the second was operated by defendant Mark Besecker;
the third was operated by plaintiff; and the fourth was operated by
defendant Tina M. Guenther. While Besecker successfully avoided rear-
ending Watt’s vehicle and plaintiff successfully stopped her vehicle
before rear-ending Besecker’s vehicle, Guenther was not able to stop
her vehicle in time, and she rear-ended plaintiff’s vehicle. Besecker
contends that Supreme Court erred in denying his motion for summary
judgment dismissing the complaint and all cross claims against him,
given that plaintiff had completely and successfully stopped her
vehicle behind his before it was rear-ended by Guenther’s vehicle.
That stop, according to Besecker, broke the chain of causation and
thereby relieved him of liability for plaintiff’s subsequent injuries.
                                 -2-                          1436
                                                         CA 12-01100

We agree.

     It is well established that, absent extraordinary circumstances
not present here (see generally Tutrani v County of Suffolk, 10 NY3d
906, 907-908), injuries resulting from a rear-end collision are not
proximately caused by any negligence on the part of the operator of a
preceding vehicle when the rear-ended vehicle had successfully and
completely stopped behind such vehicle prior to the collision (see
Princess v Pohl, 38 AD3d 1323, 1323, lv denied 9 NY3d 802; Coffey v
Baker, 34 AD3d 1306, 1307-1308, lv dismissed in part and denied in
part 8 NY3d 867; Lester v Chmaj, 251 AD2d 1069, 1070). Here, it is
undisputed that plaintiff’s vehicle came to a full stop behind
Besecker’s vehicle before being rear-ended by Guenther’s vehicle.
Besecker thereby established his entitlement to judgment as a matter
of law dismissing the complaint and the cross claims against him (see
generally Zuckerman v City of New York, 49 NY2d 557, 562).

     As an alternative ground for affirmance (see Parochial Bus Sys. v
Board of Educ. of City of N.Y., 60 NY2d 539, 545-546), Guenther
contends that summary judgment dismissing her cross claim against
Besecker is nevertheless precluded by issues of fact concerning
whether Besecker’s vehicle was actually stopped at the time of the
rear-end collision at issue and whether he thereby contributed to that
collision. We reject that contention because “[those] issues are not
material to the determination of [Besecker’s] summary judgment motion”
(Rezu Enters., Inc. v Isani, 80 AD3d 427, 427-428; see Emery v New
York City Tr. Auth., 78 AD3d 416, 417; Wenz v Shafer, 293 AD2d 742,
743). Specifically, it remains uncontroverted that plaintiff’s
vehicle came to a complete stop behind Besecker’s vehicle before being
rear-ended by Guenther’s vehicle, and we thus conclude that any link
between plaintiff’s injuries and Besecker’s conduct was thereby
severed as a matter of law (see Rzepecki v Yauch, 277 AD2d 984, 984-
985; Lester, 251 AD2d at 1070). Guenther’s reliance on Tutrani (10
NY3d at 907-908) is misplaced; the unique circumstances of that case
are not present here and, in contrast to the police officer in
Tutrani, Besecker did not operate the first vehicle in the accident
chain.




Entered:    February 1, 2013                   Frances E. Cafarell
                                               Clerk of the Court
