| Trombetta v Cathone |
| 2009 NY Slip Op 01106 [59 AD3d 526] |
| February 10, 2009 |
| Appellate Division, Second Department |
| Dana Trombetta et al., Appellants, v Barbara Cathone,Respondent. |
—[*1] O'Connor, McGuinness, Conte, Doyle & Oleson, White Plains, N.Y. (Montgomery L.Effinger of counsel), for respondent.
In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an orderof the Supreme Court, Westchester County (Lefkowitz, J.), entered September 16, 2008, whichdenied their motion for summary judgment on the issue of liability.
Ordered that the order is reversed, on the law, with costs, and the plaintiffs' motion forsummary judgment on the issue of liability is granted.
On January 2, 2008 at the intersection of 1st Street and Highbrook Avenue in PelhamManor, the plaintiffs' vehicle was struck in the rear by a vehicle operated by the defendant. Theplaintiffs commenced this action against the defendant, and moved for summary judgment on theissue of liability. The Supreme Court denied the motion. We reverse.
As a general rule, in the absence of any negligence on the part of a plaintiff, a rear-endcollision with a stopped vehicle establishes a prima facie case of negligence against the driverand owner of the moving vehicle and imposes a duty of explanation on its driver (see Arias v Rosario, 52 AD3d 551[2008]; Ahmad v Grimaldi, 40AD3d 786 [2007]).[*2]
In this case, the plaintiffs established their prima facieentitlement to judgment as a matter of law on the issue of liability by tendering an affidavit fromthe plaintiff driver Dana Trombetta, in which she stated that she completely stopped at a stopsign while waiting for a crossing guard who was directing pedestrians to cross the street, whenshe was struck in the rear by the defendant's vehicle. The defendant's opposition consisted solelyof an affirmation of counsel and, therefore, was insufficient to rebut the plaintiffs' prima facieshowing. Defense counsel's claim that further discovery was required (see CPLR 3212[f]) is unavailing since the defendant failed to put forth some evidentiary basis to suggest thatdiscovery might lead to relevant evidence (see Ruttura & Sons Constr. Co. v PetrocelliConstr., 257 AD2d 614, 615 [1999]). Rivera, J.P., Dillon, Miller, Balkin and Leventhal, JJ.,concur.