Opinion
2015-04-29
Amy FINNEY, etc., appellant, v. Christopher A. MORTON, Jr., respondent.
Gregory W. Bagen, Brewster, N.Y. (Dara L. Warren of counsel), for appellant. Bryan M. Kulak (Russo, Apoznanski & Tambasco, Melville, N.Y. [Susan J. Mitola and Gerard Ferrara], of counsel), for respondent.
Gregory W. Bagen, Brewster, N.Y. (Dara L. Warren of counsel), for appellant. Bryan M. Kulak (Russo, Apoznanski & Tambasco, Melville, N.Y. [Susan J. Mitola and Gerard Ferrara], of counsel), for respondent.
REINALDO E. RIVERA, J.P., SHERI S. ROMAN, COLLEEN D. DUFFY, and BETSY BARROS, JJ.
In an action, inter alia, to recover damages for wrongful death, the plaintiff appeals from an order of the Supreme Court, Dutchess County (Forman, J.), dated January 30, 2014, which denied her motion for summary judgment on the issue of liability.
ORDERED that the order is affirmed, with costs.
A rear-end collision with a stopped or stopping vehicle creates a prima facie case of negligence with respect to the operator of the rear vehicle and imposes a duty on that operator to rebut the inference of negligence by providing a nonnegligent explanation for the collision ( see Tutrani v. County of Suffolk, 10 N.Y.3d 906, 908, 861 N.Y.S.2d 610, 891 N.E.2d 726; Gutierrez v. Trillium USA, LLC, 111 A.D.3d 669, 670–671, 974 N.Y.S.2d 563; Pollard v. Independent Beauty & Barber Supply Co., 94 A.D.3d 845, 846, 942 N.Y.S.2d 360).
Here, the plaintiff established her prima facie entitlement to judgment as a matter of law by demonstrating that the decedent's vehicle was struck in the rear when it came to a stop in the roadway ( see Scheker v. Brown, 85 A.D.3d 1007, 1007, 925 N.Y.S.2d 528). In opposition, the defendant raised a triable issue of fact by proffering a nonnegligent explanation for the collision. The defendant submitted his own affidavit, in which he averred, among other things, that the decedent suddenly moved his vehicle from the shoulder to the roadway directly in front of the defendant's vehicle ( see Markesinis v. Jaquez, 106 A.D.3d 961, 965 N.Y.S.2d 363; Scheker v. Brown, 85 A.D.3d at 1007, 925 N.Y.S.2d 528; Abbott v. Picture Cars E., Inc., 78 A.D.3d 869, 870, 911 N.Y.S.2d 449).
The plaintiff's remaining contentions are without merit.
Accordingly, the Supreme Court properly denied the plaintiff's motion for summary judgment on the issue of liability.