| Carman v Arthur J. Edwards Mason Contr. Co., Inc. |
| 2010 NY Slip Op 02083 [71 AD3d 813] |
| March 16, 2010 |
| Appellate Division, Second Department |
| Crystal Carman, Respondent, v Arthur J. Edwards MasonContracting Company, Inc., et al., Appellants. |
—[*1] Tierney & Tierney, Port Jefferson, N.Y. (Stephen A. Ruland of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendants appeal, as limited bytheir brief, from so much of an order of the Supreme Court, Suffolk County (Rebolini, J.), datedDecember 3, 2008, as granted the plaintiff's cross motion for summary judgment on the issue ofliability.
Ordered that the order is affirmed insofar as appealed from, with costs.
A motor vehicle owned by the defendant Arthur J. Edwards Mason Contracting Company,Inc., and operated by the defendant William H. Mehrmann struck the rear of a vehicle operatedby the plaintiff while both vehicles were traveling in the rightmost lane of the westboundroadway of Route 25A, in the Town of Brookhaven. The plaintiff commenced this action torecover damages for personal injuries resulting from the accident. After issue was joined, thedefendants moved for summary judgment dismissing the complaint on the ground that theplaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d).The plaintiff thereafter cross-moved for summary judgment on the issue of liability. Thedefendants appeal from so much of the order as granted the plaintiff's cross motion.
"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" (Oguzturk v General Elec.Co., 65 AD3d 1110, 1110 [2009] [internal quotation marks omitted]; see Foti v Fleetwood Ride, Inc., 57AD3d 724 [2008]; Arias vRosario, 52 AD3d 551 [2008]). The plaintiff established her prima facie entitlement tojudgment as a matter of law on the issue of liability, based on a statement in her affidavit that hervehicle 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. Evidence submitted by the defendants in opposition to the cross motion, including,inter alia, the deposition testimony of nonparty witness, John Geib, Jr., failed to rebut theinference of negligence by providing a nonnegligent explanation for the subject collision (see Hughes v Cai, 55 AD3d 675,[*2]675 [2008]). Accordingly, the Supreme Court properlygranted the plaintiff's cross motion for summary judgment on the issue of liability. Skelos, J.P.,Covello, Balkin and Sgroi, JJ., concur.