| Scheker v Brown |
| 2011 NY Slip Op 05480 [85 AD3d 1007] |
| June 21, 2011 |
| Appellate Division, Second Department |
| Denia Scheker et al., Respondents, v Viviene Brown,Appellant. |
—[*1] Day & Associates, P.C., Great Neck, N.Y. (Rose M. Day of counsel), forrespondents.
In an action to recover damages for personal injuries, etc., the defendant appeals from anorder of the Supreme Court, Kings County (Bunyan, J.), dated September 8, 2010, which grantedthe plaintiffs' motion for summary judgment on the issue of liability and the separate motion ofthe plaintiff Denia Scheker, in effect, for summary judgment dismissing her counterclaim.
Ordered that the order is reversed, on the law, with costs, and the plaintiffs' motion forsummary judgment on the issue of liability and the separate motion of the plaintiff DeniaScheker, in effect, for summary judgment dismissing the defendant's counterclaim are denied.
"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]; Ortiz v Hub Truck RentalCorp., 82 AD3d 725 [2011]). Accordingly, a rear-end collision establishes a prima faciecase of negligence on the part of the operator of the rear vehicle, thereby requiring that operatorto rebut the inference of negligence by providing a non-negligent explanation for the collision(see Tutrani v County of Suffolk, 10NY3d 906, 908 [2008]; Gleason vVillegas, 81 AD3d 889, 890 [2011]; Klopchin v Masri, 45 AD3d 737 [2007]).
Here, the plaintiffs established their prima facie entitlement to judgment as a matter of lawby demonstrating, through their deposition testimony, that their vehicle was traveling within onelane of traffic at all times when it was struck in the rear by the defendant's vehicle. In opposition,however, the defendant raised a triable issue of fact as to whether she had a nonnegligentexplanation for the collision. The defendant testified at her deposition that the plaintiff driversuddenly changed lanes, directly in front of her vehicle, without signaling, and then sloweddown. Accordingly, the Supreme Court should have denied the plaintiffs' motion for summaryjudgment on the issue of liability and the plaintiff driver's separate motion, in effect, for summaryjudgment dismissing the defendant's counterclaim (see Reitz v Seagate Trucking, Inc., 71 AD3d 975, 976 [2010]; Oguzturk v General Elec. Co., 65AD3d 1110 [2009]; Guerra vCantos, 38 AD3d 714 [2007]; Rozengauz v Lok Wing Ha, 280 AD2d 534[2001]). Skelos, J.P., Covello, Balkin and Austin, JJ., concur.