| Hughes v Cai |
| 2008 NY Slip Op 07869 [55 AD3d 675] |
| October 14, 2008 |
| Appellate Division, Second Department |
| Barbara Hughes, Respondent, v Bo Cai et al.,Appellants. |
—[*1] Rappaport, Glass, Greene & Levine, LLP (Alexander J. Wulwick, New York, N.Y., of counsel),for respondent.
In an action to recover damages for personal injuries, etc., the defendants appeal from an order ofthe Supreme Court, Suffolk County (Whelan, J.), dated November 21, 2007, which granted theplaintiff's motion for summary judgment on the issue of liability, and denied that branch of their crossmotion which was to dismiss the complaint pursuant to CPLR 3126 (3) based on the failure of theplaintiff's decedent to appear for an independent medical examination.
Ordered that the order is affirmed, with costs.
"A rear-end collision with a stopped or stopping vehicle creates a prima facie case of negligencewith respect to the operator of the moving vehicle, and imposes a duty on the operator of the movingvehicle to come forward with an adequate, nonnegligent explanation for the accident" (Arias v Rosario, 52 AD3d 551, 552[2008]; see Smith v Seskin, 49 AD3d628, 629 [2008]; Ahmad v Grimaldi,40 AD3d 786, 787 [2007]). In this case, the plaintiff made a prima facie showing ofentitlement to judgment as a matter of law on the issue of liability by submitting evidence that the vehicledriven by her decedent was struck in the rear by a vehicle driven by the defendant Bo Cai, owned bythe defendant Associates Leasing, Inc., and leased to the defendant OCS America, Inc. (see Arias v Rosario, 52 AD3d 551[2008]). In opposition to the plaintiff's motion, the defendants failed to rebut the inference of negligenceby providing a non-negligent explanation for the collision (see Ahmad v Grimaldi, 40 AD3d 786, 787 [2007]). Accordingly, theSupreme Court properly granted the plaintiff's motion [*2]for summaryjudgment on the issue of liability.
The Supreme Court also properly denied that branch of the defendants' cross motion which was todismiss the complaint based on the failure of the plaintiff's decedent to appear for an independentmedical examination. The defendants were not entitled to that relief, because they failed to demonstratethat the decedent's conduct was willful or contumacious (see Ashkenazy v New York City Hous. Auth., 27 AD3d 500, 501[2006]). Spolzino, J.P., Florio, Miller and Leventhal, JJ., concur. [See 2007 NY Slip Op34250(U).]