| Costa v Eramo |
| 2010 NY Slip Op 06564 [76 AD3d 942] |
| September 14, 2010 |
| Appellate Division, Second Department |
| Richard Costa, Respondent, v Eric S. Eramo et al.,Appellants. |
—[*1] Wallace, Witty, Frampton & Veltry, P.C., Brentwood, N.Y. (Peter Graff of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendants appeal from an order ofthe Supreme Court, Suffolk County (Tanenbaum, J.), dated October 8, 2009, which granted theplaintiff's motion for summary judgment on the issue of liability.
Ordered that the order is reversed, on the law, with costs, and the plaintiff's motion forsummary judgment on the issue of liability is denied.
A rear-end collision with a stopped or stopping vehicle creates a prima facie case ofnegligence against the operator of the moving vehicle and imposes a duty on that operator toprovide a nonnegligent explanation for the collision (see Carman v Arthur J. Edwards Mason Contr. Co., Inc., 71 AD3d813, 813-814 [2010]; Franco vBreceus, 70 AD3d 767, 768 [2010]; Ramirez v Konstanzer, 61 AD3d 837 [2009]; Arias v Rosario, 52 AD3d 551,552 [2008]; Hakakian v McCabe,38 AD3d 493 [2007]; Smith vSeskin, 49 AD3d 628 [2008]; Russ v Investech Sec., 6 AD3d 602 [2004]).
Here, the plaintiff established his prima facie entitlement to judgment as a matter of law onthe issue of liability based on the affidavits of the plaintiff and the defendant Eric S. Eramo,wherein they averred that the lead vehicle, operated by the plaintiff, was either stopping orslowing down to make a right turn when it was struck in the rear by the defendants' vehicle.
The burden then shifted to the defendants to come forward with a nonnegligent explanationfor the accident. Contrary to the determination of the Supreme Court, sufficient evidence wassubmitted by the defendants to raise triable issues of fact as to whether the plaintiff, as the driverof the lead vehicle, contributed to the accident by making a sudden stop and failing to give aproper turn signal in compliance with Vehicle and Traffic Law § 1163 (see Klopchin v Masri, 45 AD3d737, 738 [2007]; Taveras vAmir, 24 AD3d 655, 656 [2005]; Drake v Drakoulis, 304 AD2d 522, 522-523[2003]; Maschka v Newman, 262 AD2d 615, 616 [1999]). Accordingly, the SupremeCourt should have denied the plaintiff's motion for summary judgment on the issue of liability.[*2]
In light of our determination, we need not reach thedefendants' remaining contention. Mastro, J.P., Florio, Belen and Chambers, JJ., concur.