Opinion
2022–02349 Index No. 712110/21
09-27-2023
Aleta WHALEY, appellant, v. CARVANA NEW YORK CITY, et al., defendants, Carvana, LLC, etc., et al., respondents.
Cellino Law LLP, Melville, NY (Joshua B. Sandberg of counsel), for appellant. Lewis, Brisbois, Bisgaard & Smith LLP, New York, NY (James M. Strauss of counsel), for respondents.
Cellino Law LLP, Melville, NY (Joshua B. Sandberg of counsel), for appellant.
Lewis, Brisbois, Bisgaard & Smith LLP, New York, NY (James M. Strauss of counsel), for respondents.
MARK C. DILLON, J.P., LARA J. GENOVESI, WILLIAM G. FORD, JANICE A. TAYLOR, JJ.
DECISION & ORDER In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Allan B. Weiss, J.), entered March 25, 2022. The order denied the plaintiff's motion for summary judgment on the issue of liability against the defendants Carvana, LLC, and Jerome H. Nicks.
ORDERED that the order is reversed, on the law, with costs, and the plaintiff's motion for summary judgment on the issue of liability against the defendants Carvana, LLC, and Jerome H. Nicks is granted.
On March 20, 2020, the plaintiff's parked vehicle was struck in the rear by a vehicle operated by the defendant Jerome H. Nicks and owned by the defendant Carvana, LLC (hereinafter together the defendants). The plaintiff allegedly sustained personal injuries as a result of the accident and commenced this action against, among others, the defendants. After joinder of issue, but before the completion of discovery, the plaintiff moved for summary judgment on the issue of liability against the defendants. The Supreme Court denied the motion. The plaintiff appeals.
"A driver of a vehicle approaching another vehicle from the rear is required to maintain a reasonably safe distance and rate of speed under the prevailing conditions to avoid colliding with the other vehicle" ( Nsiah–Ababio v. Hunter, 78 A.D.3d 672, 672, 913 N.Y.S.2d 659 ; see Vehicle and Traffic Law § 1129[a] ; Newfeld v. Midwood Ambulance & Oxygen Serv., Inc., 204 A.D.3d 813, 814, 164 N.Y.S.3d 497 ). "Accordingly, a rear-end collision 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 non-negligent explanation for the collision" ( Scheker v. Brown, 85 A.D.3d 1007, 1007, 925 N.Y.S.2d 528 ; see Mahmud v. Feng Ouyang, 208 A.D.3d 861, 174 N.Y.S.3d 721 ). "A plaintiff is no longer required to show freedom from comparative fault to establish her or his prima facie entitlement to judgment as a matter of law on the issue of liability" ( Xin Fang Xia v. Saft, 177 A.D.3d 823, 825, 113 N.Y.S.3d 249 ; see Rodriguez v. City of New York, 31 N.Y.3d 312, 323, 76 N.Y.S.3d 898, 101 N.E.3d 366 ; Perez v. Persad, 183 A.D.3d 771, 771–772, 123 N.Y.S.3d 683 ).
Here, the plaintiff established her prima facie entitlement to judgment as a matter of law on the issue of liability through the submission of her affidavit, in which she averred that her vehicle was struck in the rear by the defendants’ vehicle while the plaintiff's vehicle was parked on the shoulder of the roadway (see Vehicle and Traffic Law § 1129[a] ; Mahmud v. Feng Ouyang, 208 A.D.3d at 862, 174 N.Y.S.3d 721 ; Lopez v. Dobbins, 164 A.D.3d 776, 777, 79 N.Y.S.3d 566 ). In opposition to the plaintiff's prima facie showing, the defendants failed to rebut the inference of negligence by providing a nonnegligent explanation for the collision (see Munoz v. Agenus, Inc., 207 A.D.3d 643, 645, 173 N.Y.S.3d 18 ; State Farm Mut. Auto. Ins. Co. v. Novellino, 176 A.D.3d 1134, 1134, 108 N.Y.S.3d 885 ; Martorell v. Marcus, 106 A.D.3d 883, 884, 966 N.Y.S.2d 137 ; Hauswirth v. Transcare N.Y., Inc., 97 A.D.3d 792, 949 N.Y.S.2d 154 ). The defendants’ contention that the plaintiff proximately caused the accident by violating 34 RCNY 4–07(b)(1) and 4–08(e)(1) speaks to her comparative negligence, which was not the subject of this motion and is insufficient to defeat the plaintiff's prima facie entitlement to judgment as a matter of law on the issue of liability (see Rodriguez v. City of New York, 31 N.Y.3d at 324–325, 76 N.Y.S.3d 898, 101 N.E.3d 366 ).
The defendants’ remaining contention is without merit.
DILLON, J.P., GENOVESI, FORD and TAYLOR, JJ., concur.