This is a personal injury action in which plaintiffs, JAE SOOK KIM and TAE HYUNG KIM, seek to recover damages for injuries [*2]they sustained as a result of a motor vehicle accident that occurred on August 22,2009 at approximately 1:15 p.m., at the intersection of Hylan Boulevard and Cornelia Avenue, Richmond County, New York.

At the time of the accident, the vehicle being operated by Tae Hyung Kim was struck in the rear by the vehicle operated by defendant Robert Rivero and owned by defendant Eileen J. Dolman. Plaintiff Jae Sook Kim was a front seat passenger in the plaintiffs' vehicle. Plaintiffs contend that at the time their vehicle was struck in the rear, they were stopped in a designated left turn lane, intending to turn left onto Cornelia Avenue. As a result of the accident each plaintiff alleges that they sustained serious physical injuries.

Plaintiffs commenced an action against Dolman and Rivero by filing a summons and complaint on October 6, 2009. Issue was joined by service of defendants' verified answer with counterclaim against TAE HYUNG KIM dated November 30, 2009. Plaintiff on the counterclaim filed an answer dated January 21, 2010.

Victor J. Natale, Esq., counsel for the plaintiff on the counterclaim, now moves for an order, pursuant to CPLR 3212(b), granting summary judgment on the issue of liability and dismissing the counterclaim asserted by defendants Dolman and Rivero . In support of the motion for summary judgment, counsel submits his own affidavit, a copy of the pleadings, copies of the deposition transcripts of plaintiffs Jae Sook Kim and Tae Hyung Kim, a copy of the deposition testimony of defendant Robert Rivero and photographs of the intersection in question.

In her examination before trial taken on August 20, 2010, Jae Sook Kim, age 47, testified that on August 22, 2009, between 11:00 a.m. and 12:00 p.m. she was a passenger in her husband's vehicle. Their vehicle was completely stopped in a designated left turn only lane on Hylan Boulevard at its intersection with Cornelia Avenue in Staten Island when their vehicle was hit in the rear by the truck being driven by defendant. She stated their vehicle was stopped for 10 seconds prior to the impact. She states that because she was a passenger she was looking straight ahead at the time of the impact and first became aware of the accident when she heard a loud noise and felt the impact. She did not see her husband looking at any maps while driving. There was another vehicle in front of them in the left turn lane, however, that vehicle was not involved in the accident. She testified that she left the scene in an ambulance and she made complaints to the EMT with regard to pain in her neck, right shoulder and right [*3]knee.

Tae Hyung Kim, age 45, a self-employed truck driver, testified at his deposition taken on August 20, 2010, that on the date of the accident he was operating a 2006 Honda Odyssey and he was driving with his wife to a park on State Island to meet friends. He explained that there are two lanes of traffic in each direction on Hylan Boulevard in addition to the designated lane for making a left turn. He stated that he looked at a map at home but does not remember taking it in the car. Tae Hyung Kim testified that the plaintiffs were traveling on Hylan Boulevard for thirty to forty minutes prior to his entering the left turn lane. The left turn lane was designated with a painted yellow arrow on the ground. He stopped in the turning lane and was waiting to make a left turn. There was another vehicle in front of his also stopped waiting to make a left turn. He was stopped for 10-20 seconds before the defendants' van struck his vehicle in the rear. His vehicle moved forward after the impact but his vehicle did not strike the vehicle in front of his. Kim stated that he struck his left elbow, neck and his left shoulder on the interior of his vehicle. He left the scene in an ambulance which took him to Staten Island Hospital. He was treated in the emergency room and discharged.

Defendant Robert Rivero, age 40, testified at his examination before trial taken on May 13, 2011 that on August 22, 2009, the date of the accident, he was operating his red 2004 Chevy Suburban truck. The vehicle is registered in the name of his wife, Eileen Dolman. At the time of the accident he had completed a construction job, had left the job site and was heading to his home in New Jersey. He testified that he was driving southbound on Hylan Boulevard at a speed of approximately 35 miles per hour. In the area of the accident he stated that there are two lanes of traffic in each direction and a turning lane. He stated that Cornelia Avenue is the entranceway to Wolf Pond Park. Rivero testified that prior to the accident he was driving behind the plaintiffs' vehicle for about one or two minutes in the left lane. He also stated that the plaintiffs were following their friends vehicle in front of them. He stated that the friends vehicle pulled very abruptly into the left turn lane on Cornelia in order to make a left turn into the park. However, he stated the plaintiffs' vehicle went past the left turn lane at a rate of 35 miles per hour, entered the intersection, slammed on its brakes in the middle of the intersection, skidded, and then came to an abrupt stop so that it could turn left from the middle of the intersection to enter the park. He stated that the plaintiffs' vehicle did not have its left turn signal on. He believed that the plaintiffs stopped in that manner because he [*4]failed to follow his friends' vehicle into the left turn lane. Rivero stated that as a result of the plaintiff's abrupt stop the front end of his vehicle hit the plaintiffs' vehicle from behind in the intersection. He stated that no portion of the plaintiffs' vehicle was in the left turn lane. Defendant also stated he had a conversation at the scene with an eyewitness who said he saw the mini-van stop short in the middle of the intersection.

Plaintiffs' counsel on the counterclaim asserts that the Kim vehicle was struck from behind by the Rivero vehicle while the Kim vehicle was lawfully stopped in the left turn lane waiting to make a left turn into the park. Counsel contends that the accident was caused solely as a result of the Rivero vehicle traveling too closely in violation of VTL § 1129 and that Rivero failed to safely stop his vehicle prior to rear-ending the plaintiffs' vehicle. Counsel contends, therefore, that the plaintiffs are entitled to summary judgment dismissing the defendants' counterclaim because the defendant driver was solely responsible for causing the accident while the plaintiff driver was completely free from culpable conduct.

Counsel for defendants Dolman and Rivero, Jonathan Ivezaj, Esq., submits an affirmation in opposition to the motion. He contends that plaintiffs have failed to establish prima facie its entitlement to summary judgment because there are conflicting versions of how the accident occurred and questions regarding the comparative negligence of the plaintiffs. Counsel contends, based upon the deposition testimony of the parties, that there are questions of fact as to where the accident occurred. Plaintiff testified he was in the designated turning lane stopped for over 10 seconds waiting to make a left turn when he was hit by the defendants' vehicle whereas the defendant states that the plaintiffs' vehicle missed the left turn lane and stopped abruptly in the intersection without signaling and intended to make a left turn from the middle of the intersection rather than from the left turn lane. Counsel states that the plaintiff's actions were a violation of VTL § 1163 which states that a driver shall not stop or suddenly decrease the speed of his vehicle without giving an appropriate signal. Counsel contends that Rivero's deposition testimony raises a material issue of fact regarding the comparative negligence of the Kim vehicle.

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 [*5]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]).

Upon review of the motion by the plaintiffs on the counterclaim, defendants' affirmation in opposition and the plaintiffs' reply thereto, this court finds as follows:

"When the driver of an automobile approaches another automobile from the rear, he or she is bound to maintain a reasonably safe rate of speed and control over his or her vehicle, and to exercise reasonable care to avoid colliding with the other vehicle" (Macauley v ELRAC, Inc., 6 AD3d 584 [2d Dept. 2003]). It is well established law that a rear-end collision 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 Parra v Hughes, 79 AD3d 1113 [2d Dept. 2010]; DeLouise v S.K.I. Wholesale Beer Corp., 75 AD3d 489 [2d Dept. 2010]; Klopchin v Masri, 45 AD3d 737 [2d Dept. 2007]; Hakakian v McCabe, 38 AD3d 493 [2d Dept. 2007]; Velazquez v Denton Limo, Inc., 7 AD3d 787 [2d Dept. 2004]; Reed v New York City Transit Authority, 299 AD2d 330 [2d Dept. 2002]).

Here, Tae Hyung Kim testified at his examination before trial that his vehicle was stopped in a designated left turn lane for approximately 10-15 seconds waiting for the car in front of his to make a left turn when his vehicle was suddenly struck from behind by defendants' vehicle. However, Rivero stated in contrast that the plaintiffs were following another vehicle and that the other vehicle abruptly entered the left turn lane. According to the defendant, the plaintiffs' vehicle missed the left turn lane and stopped suddenly in the middle of the intersection intending to make the left turn from that position. The defendant alleges, therefore, that the plaintiff stopped suddenly in a non-turning lane without signaling its intention to stop or to make a left turn and that the impact did not occur in the turning lane as the plaintiffs contend.

The Courts have held that "a sudden, negligent, or unexplained stop of the lead vehicle can constitute a non-negligent explanation because the lead driver has a duty not to stop suddenly or slow down without proper signaling so as to avoid a collision when there is opportunity to give such signal" (John v Leyba, 38 AD3d 496 [2d Dept. 2007]; also see Vehicle and Traffic Law § 1165 [3]; Carhuayano v J & R Hacking, 28 AD3d 413 [*6][2d Dept. 2006]; Taveras v Amir, 24 AD3d 655 [2d Dept. 2005]). Thus, where the lead driver also operates his vehicle in a negligent manner, the issue of comparative negligence is for a jury to decide (see Gaeta v Carter, 6 AD3d 576[2d Dept. 2004]).

Therefore, this court finds that the plaintiffs on the counterclaim failed to make a prima facie showing of entitlement to judgment as a matter of law. In support of the motion, plaintiffs submitted the deposition transcripts of the plaintiffs and the defendant. The deposition testimony regarding the causation of the accident was conflicting and revealed a factual dispute as to how, where, and why the accident occurred. Although plaintiffs' submitted evidence that the Rivera's truck rear-ended their vehicle and raised a triable issues of fact as to whether Rivera was negligent in following Kim too closely, Rivero's deposition provided evidence of a nonnegligent explanation for the rear-end collision, i.e., the "sudden, negligent, and unexplained stop of the Kim vehicle in the middle of the intersection without giving a proper left turn signal in compliance with Vehicle and Traffic Law § 1163 (see Gleason v Villegas, 81 AD3d 889 [2d Dept. 2011]; Vargas v Luxury Family Corp.,77 AD3d 820 [2d Dept. 2010]; Costa v Eramo, 76 AD3d 942 [2d Dept. 2010]; Foti v Fleetwood Ride, Inc., 57 AD3d 724 [2d Dept. 2008]; Delayhaye v Caledonia Limo & Car Serv., Inc., 49 AD3d 588 [2d Dept. 2008]; Klopchin v Masri, 45 AD3d 737 [2d Dept. 2007]; Morrison v Montzoutsos, 40 AD3d 717 [2d Dept. 2007]).

Thus, the plaintiffs on the counterclaim's evidentiary submissions were insufficient to eliminate all issues regarding the facts surrounding the accident and whether either or both parties were negligent (see Allen v Echols, 2011 NY Slip Op 07592 [2d Dept. 2011]; Pollack v Margolin, 84 AD3d 1341 [2d Dept. 2011]; Myles v Blain, 81 AD3d 798 [2d Dept. 2011]; Sayed v Aviles, 72 AD3d 1061 [2d Dept. 2010]). Plaintiffs' freedom from negligence has not been established as a matter of law (see Abbott v. Picture Cars East, Inc., 78 AD3d 869 [2d Dept. 2010]; Furtow v Jenstro Enters., Inc., 75 AD3d 494[2d Dept. 2010]).

Thus, as the evidence in the record demonstrates that there are triable issues of fact as to whether plaintiff may have borne comparative fault for the causation of the accident, plaintiffs on the counterclaim's motion pursuant to CPLR 3212(b) for summary judgment dismissing the defendants' counterclaim and any and all cross-claims is denied.

That branch of the motion for an order granting summary judgment dismissing the complaint of Jae Sook Kim on the ground that her injuries do not meet the serious injury threshold [*7]pursuant to section 5102 of the Insurance Law is held in abeyance pending the final submission of the defendants' motion on this same ground which is pending on this Court's motion calendar for November 17, 2011.

Dated: November 2, 2011

Long Island City, NY

______________________________

ROBERT J. MCDONALD

J.S.C.