| Mallen v Su |
| 2009 NY Slip Op 08791 [67 AD3d 974] |
| November 24, 2009 |
| Appellate Division, Second Department |
| Mark C. Mallen, Appellant, v Elliot Su et al.,Respondents. |
—[*1] Buratti, Kaplan, McCarthy & McCarthy, Yonkers, N.Y. (Robert J. Permutt of counsel), forrespondents.
In an action to recover damages for personal injuries, the plaintiff appeals from an order ofthe Supreme Court, Dutchess County (Brands, J.), dated December 23, 2008, which granted thedefendants' motion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
A vehicle operated by the defendant Elliot Su and owned by the defendant Gen-Wen Su washit in the rear by a motorcycle owned and operated by the plaintiff on Noxon Road inLaGrangeville. The plaintiff's friend, nonparty Steven Stubbs, was operating his motorcycleabout 20 feet behind the defendants' vehicle, and the plaintiff was operating his vehicle about 20feet behind Stubbs's motorcycle. Stubbs swerved to the right and did not come into contact withthe defendants' vehicle.
A rear-end collision with a stopped vehicle creates a prima facie case of negligence againstthe operator of the moving vehicle, thereby requiring that operator to rebut the inference ofnegligence by providing a nonnegligent explanation for the collision (see Ramirez v Konstanzer, 61 AD3d837 [2009]; Arias v Rosario,52 AD3d 551 [2008]; Hakakian vMcCabe, 38 AD3d 493 [2007]). "A claim that the driver of the lead vehicle made asudden stop, standing alone, is insufficient to rebut the presumption of negligence" (Russ v Investech Sec., 6 AD3d602 [2004]; see Zdenek v SafetyConsultants, Inc., 63 AD3d 918 [2009]; Ramirez v Konstanzer, 61 AD3d 837 [2009]; Jumandeo v Franks, 56 AD3d 614[2008]; Arias v Rosario, 52 AD3d551 [2008]).
Here, the defendants made a prima facie showing of their entitlement to judgment as a matterof law by submitting evidence that their vehicle was struck in the rear by the plaintiff'smotorcycle (see Zdenek v SafetyConsultants, Inc., 63 AD3d 918 [2009]; Ramirez v Konstanzer, 61 AD3d 837 [2009]; Jumandeo v Franks, 56 AD3d 614[2008]; Arias v Rosario, 52 AD3d551 [2008]). In opposition, the plaintiff failed to submit evidence sufficient to raise a triableissue of fact. The plaintiff proffered no evidence of his speed, nor of the speed limit. Under thecircumstances, the assertion that the defendants' vehicle came to a sudden stop was insufficientto rebut the inference of negligence created by the rear-end collision (see Zdenek v Safety Consultants, Inc.,63 AD3d 918 [2009]; Ramirez vKonstanzer, 61 AD3d 837 [2009]; Jumandeo v Franks, [*2]56 AD3d 614 [2008]; Arias v Rosario, 52 AD3d 551 [2008]; Russ v Investech Sec., 6 AD3d602 [2004]).
Accordingly, the Supreme Court properly granted the defendants' motion for summaryjudgment dismissing the complaint. Dillon, J.P., Miller, Angiolillo and Dickerson, JJ., concur.