| Herdendorf v Polino |
| 2007 NY Slip Op 07244 [43 AD3d 1429] |
| September 28, 2007 |
| Appellate Division, Fourth Department |
| Dennis P. Herdendorf et al., Respondents, v Anne Sullivan Polino,Appellant. |
—[*1] Siegel, Kelleher & Kahn, Buffalo (Timothy G. O'Connell of counsel), forplaintiffs-respondents.
Appeal from an order of the Supreme Court, Erie County (Rose H. Sconiers, J.), enteredApril 11, 2006 in a personal injury action. The order granted plaintiffs' motion for partialsummary judgment on the issue of negligence and dismissal of the affirmative defenses.
It is hereby ordered that the order so appealed from be and the same hereby is unanimouslyaffirmed without costs.
Memorandum: Plaintiffs commenced this action seeking damages for injuries allegedlysustained by Dennis P. Herdendorf (plaintiff) when his vehicle was rear-ended by a vehicledriven by defendant. We reject defendant's contention that Supreme Court erred in granting thoseparts of plaintiffs' motion seeking partial summary judgment on the issue of negligence anddismissal of the affirmative defense concerning plaintiff's alleged culpable conduct. "It is wellestablished that a rear-end collision with a stopped vehicle establishes a prima facie case ofnegligence on the part of the driver of the rear vehicle . . . The presumption ofnegligence imposes a duty of explanation with respect to the operation of the rear vehicle"(Pitchure v Kandefer Plumbing & Heating, 273 AD2d 790, 790 [2000]; see Jones vEgan, 252 AD2d 909, 911 [1998]). In support of their motion, plaintiffs submitted thedeposition testimony of plaintiff establishing that his stopped vehicle was rear-ended bydefendant's vehicle. Although defendant correctly notes that "[a] nonnegligent explanation for thecollision, such as mechanical failure or the sudden and abrupt stop of the vehicle ahead, issufficient to overcome the inference of negligence and preclude an award of summary judgment"(Rodriguez-Johnson v Hunt, 279 AD2d 781, 782 [2001]), defendant presented no suchexplanation here. " 'As it can easily be anticipated that cars up ahead will make frequent stops inrush hour traffic, "[d]efendant driver's failure to anticipate and react to the slow and cautiousmovement of plaintiff's vehicle" is not an adequate, nonnegligent explanation for the accident' "(Ruzycki v Baker, 301 AD2d 48, 50 [2002]), particularly in light of the depositiontestimony of defendant establishing that she could not see the traffic signal or the movement oftraffic in front of plaintiff's vehicle.
We have considered defendant's remaining contentions and conclude that they are [*2]without merit. Present—Gorski, J.P., Smith, Centra, Faheyand Green, JJ.