Supreme Court, Appellate Term,
Second Dept.,
2, 11 & 13 Judicial Dist.
WEN YING LU, Respondent,
v.
Joseph C. GIOIELLO and Cinthia Depiano, Appellants,
and
Latora Laj Barrett, Kathryn Blue Barrett, Fredy Rojas and SWF Trucking, Defendants.
No. 2013–2449 K C.
May 1, 2015.
Present: PESCE, P.J., WESTON and ALIOTTA, JJ.
*1 Appeal from a decision of the Civil Court of the City of New York, Kings County (Noach Dear, J.), dated December 18, 2012, and from a judgment of the same court entered April 18, 2013. The judgment, insofar as appealed from, entered pursuant to so much of the December 18, 2012 decision as, after a nonjury trial, found in favor of plaintiff as against defendants Joseph C. Gioiello and Cinthia Depiano, awarded plaintiff the principal sum of $10,752.73 as against those defendants.
ORDERED that so much of the appeal as is from the decision is dismissed, as no appeal lies from a decision; and it is further,
ORDERED that the judgment, insofar as appealed from, is reversed, without costs, and the matter is remitted to the Civil Court for the entry of a judgment dismissing so much of the complaint as was asserted against defendants Joseph C. Gioiello and Cinthia Depiano.
Plaintiff, who is self-represented, commenced this action to recover the sum of $20,000 for damage to her vehicle resulting from a multi-vehicle accident which had occurred on December 6, 2011. Of the six named defendants, two, Latora Laj Barrett and Kathryn Blue Barrett (allegedly the owner and operator of a tractor-trailer involved in the accident), failed to appear or answer. There was no discovery conducted prior to trial. At a nonjury trial involving the nondefaulting defendants, plaintiff testified that, on the date in question, she had been driving her Toyota eastbound on the Verrazano Bridge when the vehicle in front of her vehicle had stopped, so she had stopped. The vehicle behind her vehicle (a Honda owned by defendant Cinthia Depiano and operated by defendant Joseph C. Gioiello) rear-ended her vehicle, and then her vehicle “bumped” to the right-hand side. Another vehicle (allegedly the Barrett tractor-trailer) “bumped” her vehicle to the wall of the bridge. She had not seen the vehicle that rear-ended her Toyota prior to the accident, and was unable to specifically identify that vehicle at trial. She also testified that a truck owned by defendant SWF Trucking and operated by defendant Fredy Rojas did not make contact with her vehicle.
Defendant Gioiello testified that, although he did not recall being behind plaintiff’s vehicle, he had been slowing down his vehicle when a tractor-trailer made heavy contact with the rear of his vehicle, causing his vehicle to be thrust forward. His vehicle ended up spinning around, and the airbags deployed, preventing him from clearly seeing what was happening. At some point, the front of his vehicle collided with another vehicle, causing damage to the front of his vehicle.
Defendant Rojas testified that the truck he had been driving, which was owned by defendant SWF Trucking, was behind a tractor-trailer which locked its brakes and veered to the left. To avoid the Honda, he turned his truck to the right and his truck wound up in between the Toyota and the Honda, but his truck did not make contact with any other vehicle.
*2 In a decision after trial dated December 18, 2012, the Civil Court found that plaintiff had proven a prima facie case and was entitled to judgment against defendants Joseph C. Gioiello and Cinthia Depiano, and defaulting defendants Latora Laj Barrett and Kathryn Blue Barrett, jointly and severally, in the sum of $10,752.73, with interest from December 6, 2011. The Civil Court further found that, as to defendants Fredy Rojas and SWF Trucking, liability had not been proven, and the action was severed and discontinued as to them. A judgment in favor of plaintiff in the principal sum of $10,752.73 as against defendants Joseph C. Gioiello, Cinthia Depiano, Latora Laj Barrett and Kathryn Blue Barrett was entered on April 18, 2013. Defendants Joseph C. Gioiello and Cinthia Depiano appeal.
In reviewing a determination made after a nonjury trial, the power of this court is as broad as that of the trial court, and this court may render the judgment it finds warranted by the facts, bearing in mind that the trial judge had the advantage of seeing the witnesses and hearing their testimony (see Northern Westchester Professional Park Assoc. v. Town of Bedford, 60 N.Y.2d 492, 499 [1983]; Hamilton v. Blackwood, 85 AD3d 1116 [2011]; Zeltser v. Sacerdote, 52 AD3d 824, 826 [2008] ). Upon a review of the evidence adduced at trial, we are of the opinion that the Civil Court’s determination finding defendants Joseph C. Gioiello and Cinthia Depiano liable was not warranted.
“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 that operator to rebut the inference of negligence by providing a nonnegligent explanation for the collision’ “ ( Gutierrez v. Trillium USA, LLC, 111 AD3d 669, 670 [2013], quoting Pollard v. Independent Beauty & Barber Supply Co., 94 AD3d 845, 845–846 [2012] ). Evidence that a stopping vehicle was rear-ended and propelled into the vehicle in front of it may provide a sufficient nonnegligent explanation to relieve the operator of the stopping vehicle of liability (see Katz v. Masada II Car & Limo Serv., Inc., 43 AD3d 876, 877 [2007] ).
Although the evidence adduced at trial demonstrated that plaintiff’s vehicle was rear-ended, the evidence did not support the Civil Court’s conclusion that defendant Gioiello operated defendant Depiano’s Honda in a negligent manner, since defendant Gioiello’s testimony provided a sufficient non-negligent explanation for striking the rear of plaintiff’s vehicle to relieve him and Depiano from any liability.
Accordingly, the judgment, insofar as appealed from, is reversed, and the matter is remitted to the Civil Court for the entry of a judgment dismissing so much of the complaint as was asserted against defendants Joseph C. Gioiello and Cinthia Depiano.
PESCE, P.J., WESTON and ALIOTTA, concur.
