| Ortiz v Hub Truck Rental Corp. |
| 2011 NY Slip Op 01630 [82 AD3d 725] |
| March 1, 2011 |
| Appellate Division, Second Department |
| Hector Ortiz, Respondent, v Hub Truck Rental Corp.,Defendant, and Fresh Direct Holdings, LLC, et al., Appellants. |
—[*1] Weiss & Rosenbloom, P.C., New York, N.Y. (Erik L. Gray of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendants Fresh Direct Holdings,LLC, and Mickoy O. Holness, also known as Mickey O. Holness, appeal, as limited by theirbrief, from so much of an order of the Supreme Court, Kings County (Kramer, J.), datedDecember 18, 2009, as granted that branch of the plaintiff's motion which was for summaryjudgment on the issue of liability against them.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thatbranch of the plaintiff's motion which was for summary judgment on the issue of liability againstthe appellants is denied.
At or near the intersection of Borden Avenue and 23rd Street in Queens, a vehicle operatedby the defendant Mickoy O. Holness, also known as Mickey O. Holness, struck the rear of avehicle owned and operated by the plaintiff. At the time of the accident, Holness was operatingthe vehicle in the course of his employment with the defendant Fresh Direct Holdings, LLC(hereinafter Fresh Direct). The plaintiff commenced this action to recover damages for personalinjuries. After joinder of issue, but before any discovery was conducted, the plaintiff moved, interalia, for summary judgment on the issue of liability as against Fresh Direct and Holness(hereinafter together the appellants). The Supreme Court granted that branch of the motion. Wereverse the order insofar as appealed from.
"A driver of a vehicle approaching another vehicle from the rear is required to maintain areasonably safe distance and rate of speed under the prevailing conditions to avoid colliding withthe other vehicle" (Nsiah-Ababio vHunter, 78 AD3d 672, 672 [2010]; see Vehicle and Traffic Law § 1129[a]; see generally Pawlukiewicz v Boisson, 275 AD2d 446, 447 [2000]; Maxwell vLobenberg, 227 AD2d 598, 598-599 [1996]). Accordingly, a rear-end collision establishes aprima facie case of negligence on the part of the operator of the rear vehicle, thereby requiringthat operator to rebut the inference of negligence by providing a nonnegligent explanation for thecollision (see Tutrani v County ofSuffolk, 10 NY3d 906, 908 [2008]; Klopchin v Masri, 45 AD3d 737 [2007]; Starace v Inner CircleQonexions, 198 AD2d 493 [1993]; Edney v Metropolitan Suburban Bus Auth., 178AD2d 398, 399 [1991]). A nonnegligent explanation may include evidence of a mechanicalfailure, a sudden stop of the vehicle ahead, an unavoidable skidding on wet pavement, or anyother reasonable cause (see DeLouise vS.K.I. Wholesale Beer Corp., 75 AD3d 489, [*2]490[2010]). Moreover, evidence that a plaintiff's vehicle made a sudden lane change directly in frontof a defendant's vehicle, forcing that defendant to stop suddenly, is sufficient to rebut theinference of negligence (see Reitz vSeagate Trucking, Inc., 71 AD3d 975, 976 [2010]; cf. Tutrani v County ofSuffolk, 10 NY3d at 908).
Here, the plaintiff established his prima facie entitlement to judgment as a matter of law onthe issue of liability against the appellants by submitting an affidavit in which he stated that hewas stopped in his vehicle on Borden Avenue with his left turn signal engaged, waiting to make aleft turn onto 23rd Street, when the vehicle operated by Holness struck the rear of the plaintiff'svehicle. In opposition, the appellants raised a triable issue of fact as to whether they had anonnegligent explanation for the collision by submitting an affidavit sworn to by Holness.According to Holness, as he was about to proceed past the plaintiff's vehicle, which had begun tomake a left turn onto 23rd Street, the plaintiff's vehicle, in an apparent attempt to continuetraveling straight on Borden Avenue, suddenly veered to the right and into Holness's path, thuscausing the collision (see Reitz vSeagate Trucking, Inc., 71 AD3d 975 [2010]). Since a triable issue of fact exists as towhether the plaintiff caused or contributed to the accident, the Supreme Court erred in resolvingthe conflicting affidavits in the plaintiff's favor (see Anyanwu v Johnson, 276 AD2d 572,573 [2000]). Thus, the Supreme Court should have denied that branch of the plaintiff's motionwhich was for summary judgment on the issue of liability against the appellants.
The plaintiff's remaining contentions either are without merit or have been renderedacademic by our determination. Covello, J.P., Angiolillo, Dickerson and Belen, JJ., concur.