The following papers numbered 1 to 26 were read on the following motions (1) by defendant in Action No. 1, JIAN CHEN for an order pursuant to CPLR 3212(b) granting CHEN summary judgment and dismissing the plaintiff's complaint and all cross-claims against him; (2) amended cross-motion by defendants in Action No. 1, KALEEKAL J. BABY and PHILIP SONY MAMMEN for an order pursuant to CPLR 3212(b) granting summary judgment and dismissing the plaintiff's complaint and all cross-claims against them and (3) the cross-motion of plaintiffs in Action No. 1, MARIA HANAKIS and [*2]NIKOLAS HANAKIS for an order pursuant to CPLR 3212(b) granting partial summary judgment on the issue of liability against Elaine A. DeCarlo and Andrew DeCarlo:

Papers

Numbered

CHEN Notice of Motion -Exhibits........................1 - 5

BABY/MAMMEN Cross-Motion-Affidavits-Exhibits...........6 - 8

HANAKIS Cross Motion for Summary Judgment..............9 - 15

HANAKIS-Affirmations in Opposition(3).................16 - 20

CHEN Reply............................................21 - 22 BABY/MAMMEN Reply.....................................23 - 24

HANAKIS Reply.........................................25 - 26

In this negligence action, the plaintiff, MARIA HANAKIS, seeks to recover damages for personal injuries she sustained as a result of a motor vehicle accident that occurred at approximately 2:30 p.m. on August 23, 2008. The four-car, chain reaction accident took place on the eastbound Staten Island Expressway near the intersection with Hylan Boulevard, Richmond County, New York. Defendant Jian Chen moves for an order pursuant to CPLR 3212(b), granting summary judgment and dismissing the plaintiff's complaint against him.

Defendants Kaleekal J. Baby and Sony Mammen Philip s/h/a Philip Sony Mammen cross-move for an order pursuant to CPLR 3212 (b) granting summary judgment dismissing the plaintiff's complaint against them and the plaintiff also cross-moves for an order pursuant to CPLR 3212(b) granting partial summary judgment on the issue of liability against defendants Elaine DeCarlo and Andrew DeCarlo.

The fourth vehicle in the chain was owned and operated by Jian Chen. Chen alleges that his vehicle was stopped in traffic when it was hit in the rear by the third vehicle in the chain owned by defendant Kaleekal J. Baby and operated by defendant Sony Mammen Philip. Philip, the driver of the second car in the chain, alleges that his vehicle was also stopped when it was hit in the rear by the vehicle operated by the plaintiff Maria Hanakis, who allegedly sustained injuries. Hanakis alleges that her vehicle was also stopped when it was rear-ended by the first vehicle in the chain owned and operated by defendant Elaine DeCarlo. Ms. DeCarlo, the driver of the moving vehicle, informed the police officer at the scene that she was distracted by her children who were seated in the rear seat of her vehicle which caused her to strike the Hanakis vehicle in the rear. [*3]

Plaintiffs Maria and Nikolas Hanakis, commenced this action against the defendants by way of a summons and complaint filed on January 26, 2009. Issue was joined by service of the defendants' respective verified answers with counterclaims.

In support of his motion for summary judgment, Chen submits an affidavit from counsel, Tracy Morgan, Esq.; a copy of the pleadings, copies of the transcripts of the deposition testimony of Elaine A. DeCarlo, Jian Chen, Sony Mammen Philip and Maria Hanakis; and a copy of the police accident report (MV-104).

The deposition testimony of the parties in pertinent part, is as follows:

ELAINE A. DECARLO, age 40, was deposed on January 19, 2011. She testified that on the date of the accident she was operating her vehicle on the eastbound Staten Island Expressway with her two sons ages 10 and 7 who were seated in the rear seat. She stated that she was in stop-and-go traffic traveling at a rate of about 30 miles per hour. When asked how the accident happened she stated that, "[I] looked for a split second in the back seat, and then when I turned around, I hit the car in front of me." She stated that when she looked back her vehicle was moving and the car in front of hers was stopped. She didn't have time to stop her car resulting in a hard impact with the plaintiffs' vehicle in front of her. She testified that she looked back for about ten seconds because her children were fighting. Ms. Decarlo testified that the impact caused a chain reaction which involved a total of four vehicles. She told the police at the scene that she looked back because she was distracted.

JIAN CHEN, age 30 was deposed on January 24, 2011. He stated that on the date of the accident he was traveling on the Staten Island Expressway with his 10 year old daughter traveling from Albany to Brooklyn. He stated that immediately prior to his vehicle being struck in the rear he had been stopped in heavy traffic for 15 - 20 seconds. He testified that the car behind him was also stopped when it was pushed into his by a collision behind that vehicle.

The deposition of SONY MAMMEN PHILIP S/H/A PHILIP SONY MAMMEN, age 33, took place on January 19, 2011. He testified that on the date of the accident he was driving a blue Minivan owned by his friend Kaleekal Baby. He stated that he was driving from Philadelphia on the New Jersey Turnpike and he exited onto the Staten Island Expressway. He stated that at the time of the accident his vehicle had been stopped for about 30 seconds when his vehicle was hit in the rear by plaintiffs' vehicle causing [*4]his vehicle to be propelled into the Chen vehicle in front of him. He stated that prior to the impact he had seen the Decarlo vehicle, proceeding at a fast rate of speed, hit the Hanakis vehicle behind his.

MARIA HANAKIS, age 72, was deposed on October 18, 2010. She testified that on the date of the accident she was driving a vehicle owned by her husband Nikolas Hanakis. Her granddaughter was seated in the front passenger seat. She stated that she had been visiting her son at Fort Dix and was returning to her home in Queens County via the New Jersey Turnpike and Verrazano Bridge. After exiting the Turnpike she was proceeding on the Staten Island Expressway when her vehicle stopped in traffic approaching the tollbooths because the cars in front of her come to a stop. She testified that after being stopped for about three or four seconds her vehicle was hit with a very strong impact in the rear by the vehicle being driven by Ms. Decarlo. As a result of the impact her vehicle was propelled into the Philip vehicle which was in front of her. Ms. Hanakis testified that she was injured when her chest hit the steering wheel and she left the scene by ambulance.

Counsel for Chen contends that the evidence submitted in support of his motion for summary judgment demonstrates that Chen's vehicle, which was three cars in front of the moving vehicle, was lawfully stopped in traffic when his car was rear ended by Philip's vehicle, which was propelled into his car by the Hanakis vehicle. Counsel contends that summary judgment should be awarded to Chen dismissing the plaintiffs' complaint and all cross-claims against him because the evidence showed that Chen was completely stopped in traffic at the time of the accident and the sole proximate cause of the accident was the negligence of Elaine DeCarlo in rear-ending the Hanakis vehicle and that there is no evidence in the record that Chen, who was stopped in front of the Philip vehicle was negligent in any manner. Counsel contends based upon DeCarlo's testimony that she turned around and did not observe the vehicle that was stopped in front of her, that it is clear that Decarlo failed to maintain a proper lookout, failed to maintain a proper speed and a safe distance from the vehicle in front of her. Counsel contends that the evidence shows that the three lead vehicles in front of the DeCarlo vehicle which were all stopped in traffic at the time of the impact were not negligent, and were not the proximate cause of the injuries allegedly sustained by Maria Hanakis. As Chen was stopped two cars in front of the injured party's vehicle which had been hit in the rear, counsel contends that the proof submitted shows that Chen could not be liable for any of the injuries claimed by Hanakis (see Ferguson v Honda, 34 AD3d 356 [*5][1st Dept. 2006]; Mustafaj v Driscoll, 5 AD3d 139 [1st Dept. 2004]; McNulty v DePetro, 298 AD2d 566 [2d Dept. 2002]; Harris v Ryder, 292 AD2d 499 [2d Dept. 2002]; Cerda v Paisley, 273 AD2d 339 [2d Dept. 2000]).

In support of their motion for summary judgment Marcella Gerbasi Crewe, counsel for defendants Kaleekal J. Baby and Sony Mammen Philip, submits her affidavit; a copy of the pleadings; and the deposition testimony of the parties.

Counsel contends in her affidavit in support of the motion for summary judgment dismissing the complaint against Philip and Baby that the Philip vehicle was completely stopped when his vehicle was struck in the rear by the plaintiff's vehicle propelling it into the Chen vehicle. Counsel contends that there is no dispute that his vehicle and Chen's vehicle were both stopped when his vehicle was hit in the rear by the plaintiff/Hanakis vehicle which propelled him into Chen's vehicle. Counsel contends that since Philip's vehicle was stopped when it was rear ended, he has established a prima facie case of liability with respect to the operator of the moving vehicle, here, Decarlo. There is then a duty on that operator to rebut the inference of negligence to provide a non-negligent explanation for the collision (citing Johnson v Phillips, 261 AD2d 269[1st Dept. 1999]). Defendant Philip contends he made a prima facie showing that he was stopped at the time he was rear-ended and Decarlo, who was in the moving vehicle, was negligent as a matter of law. Counsel contends that DeCarlo, who was the only vehicle moving at the time of the chain reaction collision has failed to provide a non-negligent reason for hitting the Hanakis vehicle in the rear.

Counsel for plaintiffs Maria Hanakis and Nikolas Hanakis cross-moves for partial summary judgment on the issue of liability against Elaine Decarlo and Andrew Decarlo. Counsel states that the deposition testimony is clear that the Hanakis vehicle was stopped in traffic behind the Philip vehicle when it was hit in the rear by the vehicle being driven by Elaine DeCarlo. As stated above, Ms. DeCarlo conceded in her deposition testimony that the Hanakis vehicle was at a complete stop, that she turned around because of her children were fighting in the back seat and failed to observe that the Hanakis vehicle was stopped in front of her until she was too close to the vehicle to avoid the collision. Thus, counsel contends that Ms. DeCarlo's deposition testimony demonstrates that she was negligent in failing to maintain a proper lookout, failing to maintain a safe distance from the vehicles ahead of her vehicle and failing to maintain a safe speed and that as the plaintiff's vehicle was [*6]stopped at the time of impact, that Decarlo's actions were the sole and proximate cause of the accident.

Scott R. Dinstell, Esq., counsel for Elaine and Andrew DeCarlo submits an affirmation in opposition to the Chen motion, the Philip cross-motion and the Hanakis cross-motion for summary judgment. In opposition to both the Chen and Philip motions he states that Chen's testimony that DeCarlo's vehicle hit the plaintiff's vehicle after the plaintiff's vehicle hit the Hanakis vehicle creates a question of fact as to the order of impacts and as such there is no basis for finding that Ms. DeCarlo was the cause of the accident. In opposition to the Hanakis motion for partial summary judgment on the issue of liability counsel states that Chen's testimony that it was only after Hanakis rear ended the Philip vehicle that Decarlo rear ended the Hanakis vehicle creates a question of fact.

The proponent of a summary judgment motion must tender evidentiary proof in admissible form eliminating any material issues of fact from the case. If the proponent succeeds, the burden shifts to the party opposing the motion, who then must show the existence of material issues of fact by producing evidentiary proof in admissible form, in support of his position (see Zuckerman v. City of New York, 49 NY2d 557[1980]).

It is well established law that a rear-end collision with a stopped or stopping vehicle creates a prima facie case of negligence on the part of the driver of the rearmost vehicle, requiring the operator of that vehicle to proffer an adequate, non-negligent explanation for the accident (see Klopchin v Masri, 45 AD3d 737 [2d Dept. 2007]; Hakakian v McCabe, 38 AD3d 493 [2d Dept. 2007]; Reed v. New York City Transit Authority, 299 AD2 330 [2d Dept. 2002]; Velazquez v Denton Limo, Inc., 7 AD3d787 [2d Dept. 2004].

Here, Hanakis and Philip testified at their depositions that their respective vehicles were at a complete stop when plaintiff/ Hanakis' vehicle was struck from behind by the vehicle driven by DeCarlo causing the chain reaction accident. "The rearmost driver in a chain-reaction collision bears a presumption of responsibility" (Ferguson v Honda Lease Trust, 34 AD3d 356 [1st Dept. 2006], quoting De La Cruz v Ock Wee Leong, 16 AD3d 199[1st Dept. 2005]). Evidence that a vehicle was rear-ended and propelled into the stopped vehicle in front of it may provide a sufficient non-negligent explanation (see Katz v Masada II Car & Limo Serv., Inc., 43 AD3d 876 [2d Dept. 2007]). Chen, Philip and Hanakis who were all stopped at the time of the impact, demonstrated that their conduct was not a proximate cause of the [*7]rear-end collision between their vehicle and the vehicles behind them (see Abrahamian v. Tak Chan, 33 AD3d 947 [2d Dept. 2006}; Calabrese v. Kennedy, 8 AD3d 505 [2d Dept. 2006]; Ratner v Petruso, 274 AD2d 566 [2d Dept. 2000]). Thus defendants Chen, Philip and Hanakis all satisfied their prima facie burden of establishing entitlement to judgment as a matter of law by demonstrating that their vehicles were stopped at the time they were struck in the rear in a chain reaction which was commenced by defendant Elaine Decarlo. As stated above DeCarlo testified that she was proceeding 30 - 40 miles per hour when she turned around and looked towards the back seat because her children were fighting and when she turned around ten seconds later she applied her brakes but did not have time to avoid the rear end collision with the Hanakis vehicle which was stopped in traffic. Ms Decarlo admitted the Hanakis vehicle was at a complete stop at the time of the impact. Thus the defendants made a prima facie showing that DeCarlo failed to keep a safe distance failed to maintain safe speed and to observe what was there to be seen.

Having made the requisite prima facie showing of their entitlement to summary judgment, the burden then shifted to defendant DeCarlo to raise a triable issue of fact as to whether Hanakis, Philip or Chen were also negligent, and if so, whether that negligence contributed to the happening of the accident (see Goemans v County of Suffolk,57 AD3d 478 [2d Dept. 2007]). This court finds that Decarlo failed to submit evidence as to any negligence on the part of defendants or to provide a non-negligent explanation for the accident sufficient to raise a triable question of fact (see Lampkin v Chan, 68 AD3d 727 [2d Dept. 2009]; Gomez v. Sammy's Transp., Inc., 19 AD3d 544 [2d Dept. 2005]). The testimony of Chen which differed in the order of impacts is without merit based on the admissions of Ms. DeCarlo, and, in any event is insufficient to create a question of fact as to the proximate cause of the accident.

Accordingly, for the reasons set forth above it is hereby

ORDERED, the motion by defendant CHEN for summary judgment dismissing the complaint and all cross-claims against him is granted, and it is further,

ORDERED, the cross-motion by defendants KALEEKAL J. BABY and SONY MAMMEN PHILIP for summary judgment dismissing the complaint and all cross-claims against them is granted, and it is further,

ORDERED that the cross-motion by MARIA HANAKIS and NIKOLAS HANAKIS for partial summary judgment on the issue of liability against defendant ELAINE A. DECARLO and ANDREW DECARLO is granted [*8]and it is further,

ORDERED and the Clerk of Court is authorized to enter judgment accordingly; and it is further,

ORDERED, that upon compliance with all the rules of the Court, this action shall be placed on the trial calendar of the Court for an assessment of damages.

Dated: July 18, 2011

Long Island City, NY

_______________________

ROBERT J. MCDONALDJ.S.C.

OCA e-submission: no Judge E-Mail