Opinion
2018–13304 Index No. 715235/17
03-18-2020
Peter A. MODENA, Respondent, v. M & S MECHANICAL SERVICES, INC., et al., Appellants.
Andrea G. Sawyers, Melville, N.Y. (Dominic Zafonte of counsel), for appellants. Eric H. Green, New York, N.Y. (Seth M. Katz of counsel), for respondent.
Andrea G. Sawyers, Melville, N.Y. (Dominic Zafonte of counsel), for appellants.
Eric H. Green, New York, N.Y. (Seth M. Katz of counsel), for respondent.
REINALDO E. RIVERA, J.P., LEONARD B. AUSTIN, ROBERT J. MILLER, COLLEEN D. DUFFY, JJ.
DECISION & ORDER ORDERED that the order is reversed, on the law, with costs, and the plaintiff's motion for summary judgment on the issue of liability is denied.
The plaintiff commenced this action, inter alia, to recover damages for personal injuries arising out of a collision that occurred in July 2016, between the plaintiff's vehicle and a vehicle owned by the defendant M & S Mechanical Services, Inc., which was operated by the defendant Carmelo R. Chan. The plaintiff alleged that the defendants were negligent in, among other things, the ownership and operation of their vehicle and that the defendants' vehicle struck his vehicle in the rear. Thereafter, the plaintiff moved for summary judgment on the issue of liability. The Supreme Court granted the motion, and the defendants appeal.
A rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the operator of the rear vehicle, thereby requiring 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 ).
Here, the plaintiff established his prima facie entitlement to judgment as a matter of law on the issue of liability through the submission of his affidavit and the police accident report, which demonstrated that the defendants' vehicle struck the rear of the plaintiff's vehicle (see Batashvili v. Veliz–Palacios , 170 A.D.3d 791, 792, 96 N.Y.S.3d 146 ; Lopez v. Dobbins , 164 A.D.3d 776, 777, 79 N.Y.S.3d 566 ),
In opposition to this prima facie showing, the defendants submitted the affidavit of the defendant driver which raised triable issues of fact as to how the subject accident occurred and whether the defendant driver was negligent in the happening of the accident (see Motta v. Gomez , 161 A.D.3d 725, 726, 72 N.Y.S.3d 840 ; Scheker v. Brown , 85 A.D.3d 1007, 925 N.Y.S.2d 528 ).
Accordingly, the Supreme Court should have denied the plaintiff's motion for summary judgment on the issue of liability (see Winegrad v. New York Univ. Med. Ctr. , 64 N.Y.2d 851, 487 N.Y.S.2d 316, 476 N.E.2d 642 ).
RIVERA, J.P., AUSTIN, MILLER and DUFFY, JJ., concur.