| Franklin v 2 Guys From Long Pond, Inc. |
| 2008 NY Slip Op 03418 [50 AD3d 846] |
| April 15, 2008 |
| Appellate Division, Second Department |
| Sean Franklin et al., Respondents, v 2 Guys From LongPond, Inc., et al., Appellants. |
—[*1] Queller, Fisher, Dienst, Serrins, Washor & Kool, LLP, New York, N.Y. (Ephrem J.Wertenteil of counsel), for respondents.
In an action to recover damages for personal injuries, etc., the defendants appeal from anorder of the Supreme Court, Westchester County (Nastasi, J.), entered June 18, 2007, whichdenied their motion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
The plaintiff Sean Franklin was injured when his vehicle struck the right rear side of adisabled truck owned by the defendant 2 Guys From Long Pond, Inc., and operated by thedefendant Michael Verbovsky, which was stopped in the southbound left lane of the Tappan ZeeBridge at around 5:00 a.m. on December 2, 2005. Verbovsky experienced a sudden emergencywhen his steering wheel became inoperable as he was driving in the southbound right lane,causing the truck to veer to the left. After bringing the truck to a stop in the left lane of thehighway, Verbovsky activated his emergency flashers, exited the truck, and placed threereflective triangles behind the truck to warn oncoming motorists.
The injured plaintiff commenced this action to recover damages for the injuries he sustainedin the accident, and his wife asserts a derivative claim. Prior to the completion of discovery, thedefendants moved for summary judgment dismissing the complaint on the ground, inter alia, thatthere was no evidence of their negligence. The Supreme Court denied the motion, [*2]holding the injured plaintiff, who suffered from amnesia as a resultof the accident, to a lesser standard of proof, and finding the existence of issues of fact. Weaffirm.
A rear-end collision with a lawfully stopped vehicle creates a prima facie case of negligencewith respect to the operator of the moving vehicle and requires the operator of the movingvehicle to provide a non-negligent explanation for the collision (see Gregson v Terry, 35 AD3d 358[2006]; Carhuayano v J&RHacking, 28 AD3d 413 [2006]). Viewing the evidence in the light most favorable to theplaintiffs, affording them the benefit of every favorable inference (see Sampino v Crescent Assoc., LLC,34 AD3d 779 [2006]), and applying the Noseworthy doctrine (see Noseworthy vCity of New York, 298 NY 76 [1948]) to hold the amnesiac plaintiff to a lesser standard ofproof, we find that, in response to the defendants' prima facie showing of their entitlement tojudgment as a matter of law, the plaintiffs raised a triable issue of fact as to whether thedefendants violated Vehicle and Traffic Law § 375 (17) and 49 CFR 392.22 and 393.95when Verbovsky failed to set the reflective triangles in place at the required distance from thetruck (see Tepoz v Sosa, 241 AD2d 449 [1997]; Goode v Meyn, 165 AD2d 436[1991]). To the extent that, as the defendants assert, some of the evidence submitted by theplaintiffs in opposition to the motion was not in admissible form, nonetheless, it was properlyconsidered in opposition to the motion for summary judgment which was made before thecompletion of discovery (see Guzman v Strab Constr. Corp., 228 AD2d 645 [1996]; cf. Hernandez v City of New York, 35AD3d 812 [2006]).
The defendants' remaining contentions are without merit. Lifson, J.P., Florio, Angiolillo andChambers, JJ., concur.