Opinion
2018–09088 Index No. 8578/16
06-05-2019
Ainsworth MORGAN, et al., Appellants, v. Gary FLIPPEN, et al., Respondents.
Michael R. Franzese (Jason Levine, New York, NY, of counsel), for appellants. Margaret G. Klein & Associates (Mauro Lilling Naparty LLP, Woodbury, N.Y. [Matthew W. Naparty and Jennifer B. Ettenger ], of counsel), for respondents.
Michael R. Franzese (Jason Levine, New York, NY, of counsel), for appellants.
Margaret G. Klein & Associates (Mauro Lilling Naparty LLP, Woodbury, N.Y. [Matthew W. Naparty and Jennifer B. Ettenger ], of counsel), for respondents.
WILLIAM F. MASTRO, J.P., JOSEPH J. MALTESE, COLLEEN D. DUFFY, FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the plaintiffs' motion for summary judgment on the issue of liability is granted. The plaintiff Ainsworth Morgan (hereinafter the injured plaintiff) allegedly was injured when the vehicle he was driving was struck in the rear by a vehicle operated by the defendant Gary Flippen and owned by the defendant Apartment Management Associates, LLC. The injured plaintiff, and his wife suing derivatively, commenced this personal injury action against the defendants. The plaintiffs moved for summary judgment on the issue of liability. The Supreme Court denied the motion, and the plaintiffs 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, requiring that operator to come forward with evidence of a nonnegligent explanation for the collision in order to rebut the inference of negligence" ( Lopez v. Dobbins , 164 A.D.3d 776, 777, 79 N.Y.S.3d 566 ; see Arslan v. Costello , 164 A.D.3d 1408, 1409, 84 N.Y.S.3d 229 ). Here, the plaintiffs established their prima facie entitlement to judgment as a matter of law on the issue of liability, as the evidence submitted in support of their motion demonstrated that the injured plaintiff's vehicle was stopped when it was struck in the rear by the defendants' vehicle (see Sayyed v. Murray , 109 A.D.3d 464, 970 N.Y.S.2d 279 ; Briceno v. Milbry , 16 A.D.3d 448, 791 N.Y.S.2d 622 ; see also Rodriguez v. City of New York , 31 N.Y.3d 312, 76 N.Y.S.3d 898, 101 N.E.3d 366 ; Arslan v. Costello , 164 A.D.3d 1408, 84 N.Y.S.3d 229 ; Lopez v. Dobbins , 164 A.D.3d 776, 79 N.Y.S.3d 566 ). In opposition, the defendants failed to raise a triable issue of fact. The defendants' contention that Flippen applied his brakes but was unable to stop because his vehicle skidded on a wet metal grating on the roadway was insufficient to rebut the inference of negligence arising from the rear-end collision because they failed to demonstrate that Flippen's skid on known road conditions was unavoidable (see Tumminello v. City of New York , 148 A.D.3d 1084, 1085, 49 N.Y.S.3d 739 ; Sayyed v. Murray , 109 A.D.3d at 464, 970 N.Y.S.2d 279 ).
Accordingly, the Supreme Court should have granted the plaintiffs' motion for summary judgment on the issue of liability.
MASTRO, J.P., MALTESE, DUFFY and CONNOLLY, JJ., concur.