| Abbott v Picture Cars E., Inc. |
| 2010 NY Slip Op 08516 [78 AD3d 869] |
| November 16, 2010 |
| Appellate Division, Second Department |
| Ricky Abbott et al., Appellants, v Picture Cars East, Inc., etal., Respondents. |
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In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an orderof the Supreme Court, Kings County (Partnow, J.), dated October 6, 2009, which denied theirmotion for summary judgment on the issue of liability.
Ordered that the order is affirmed, with costs.
On April 24, 2008, a flatbed truck operated by the defendant Valdez Garcia, and owned bythe defendant Picture Cars East, Inc., struck the rear end of a vehicle owned and operated by theplaintiff Ricky Abbott as both vehicles were traveling in a northeast direction along the BrooklynQueens Expressway in Queens. Shortly before the accident, traffic on the roadway had begun toslow down. In his affidavit submitted in support of the motion, Abbott attested that his vehiclehad nearly come to a complete stop at the time of the collision. Garcia attested in his affidavitsubmitted in opposition that Abbott abruptly changed lanes in front of his vehicle and thenapplied his brakes, creating an insufficient distance for him to stop in time.
"As a general rule, a rear-end collision with a stopped or stopping vehicle creates a primafacie case of negligence with respect to the operator of the rearmost vehicle, imposing a duty ofexplanation on that operator to excuse the collision either through a mechanical failure, a suddenstop of the vehicle ahead, an unavoidable skidding on a wet pavement, or any other reasonablecause" (DeLouise v S.K.I. WholesaleBeer Corp., 75 AD3d 489, 490 [2010]; see Costa v Eramo, 76 AD3d 942 [2010]; Gaeta v Carter, 6 AD3d 576[2004]).
Here, the plaintiffs established their prima facie entitlement to judgment as a matter of lawon the issue of liability. The burden then shifted to the defendants to come forward with anonnegligent explanation for the accident (see Costa v Eramo, 76 AD3d 942 [2010]). The Supreme Courtproperly denied the plaintiffs' motion as Garcia's affidavit was sufficient to raise triable issues offact regarding whether Abbott contributed to the accident by making an unsafe lane change inviolation of Vehicle and Traffic Law § 1128 (a), and then applying his brakes in front ofGarcia's [*2]vehicle (see Klopchin v Masri, 45 AD3d 737, 738 [2007]; O'Sullivan vMinjae Kim, 293 AD2d 728 [2002]; cf. Neryaev v Solon, 6 AD3d 510 [2004]). The parties' competingassertions show that the plaintiffs' freedom from negligence has not been established as a matterof law (see Furtow v Jenstro Enters.,Inc., 75 AD3d 494 [2010]; Ansar v ELRAC, Inc., 288 AD2d 169, 170 [2001];Rios v Nicoletta, 119 AD2d 562 [1986]).
The plaintiffs' remaining contentions are without merit. Mastro, J.P., Balkin, Eng and Hall,JJ., concur.