| Oguzturk v General Elec. Co. |
| 2009 NY Slip Op 06520 [65 AD3d 1110] |
| September 15, 2009 |
| Appellate Division, Second Department |
| John C. Oguzturk et al., Respondents, v General ElectricCompany et al., Appellants. |
—[*1] Daniel P. Buttafuoco & Associates, PLLC, Woodbury, N.Y. (Ellen Buchholz of counsel), forrespondents.
In an action, inter alia, to recover damages for personal injuries, the defendants appeal, aslimited by their brief, from so much of an order of the Supreme Court, Suffolk County(Tanenbaum, J.), dated January 13, 2009, as granted the plaintiffs' motion for summary judgmenton the issue of liability.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and theplaintiffs' motion for summary judgment on the issue of liability is denied.
A motor vehicle owned by the defendant General Electric Company and operated by thedefendant Richemond Dumond struck the rear of a vehicle operated by the plaintiff JohnOguzturk while both vehicles were proceeding westbound in the left lane of the Long IslandExpressway in Woodbury. Oguzturk and his wife commenced this action, inter alia, to recoverdamages for personal injuries resulting from the accident. Prior to the completion of discovery,the plaintiffs moved for summary judgment on the issue of liability.
A "rear-end collision with a stopped or stopping vehicle creates a prima facie case ofnegligence with respect to the operator of the moving vehicle, and imposes a duty on theoperator of the moving vehicle to come forward with an adequate, non-negligent explanation forthe accident" (Foti v Fleetwood Ride,Inc., 57 AD3d 724, 724 [2008]; see Hughes v Cai, 55 AD3d 675 [2008]; Arias v Rosario, 52 AD3d 551,552 [2008]; Harrington v Kern, 52AD3d 473 [2008]). The plaintiffs established their prima facie entitlement to judgment as amatter of law on the issue of liability, based on Oguzturk's affidavit, in which he stated that hisvehicle was stopped in traffic when it was struck in the rear by the defendants' vehicle. Theburden then shifted to the defendants to come forward with a nonnegligent explanation for theaccident. Contrary to the determination of the Supreme Court, Dumond's explanation, that theaccident occurred after the plaintiff's vehicle suddenly, and without signaling, moved from thecenter lane into the left lane directly in front of Dumond's path and then slowed down, raised atriable issue of fact sufficient to defeat the plaintiffs' motion (see Connors v Flaherty, 32 AD3d 891, 892-893 [2006]; Briceno v Milbry, 16 AD3d 448,448-449 [2005]; Mohan v Puthumana, 302 AD2d 437 [2003]; Rozengauz v LokWing Ha, 280 AD2d 534, 535 [2001]). Accordingly, the Supreme Court should have deniedthe plaintiffs' motion for summary judgment on the issue of liability. Spolzino, J.P., Angiolillo,Chambers and Lott, JJ., concur.