| Kertesz v Jason Transp. Corp. |
| 2013 NY Slip Op 00066 [102 AD3d 658] |
| January 9, 2013 |
| Appellate Division, Second Department |
| Sandor Kertesz, Respondent, v JasonTransportation Corp. et al., Appellants. |
—[*1] Law Offices of Neil Kalra, P.C., Forest Hills, N.Y., for respondent.
In an action to recover damages for personal injuries, the defendants appeal from anorder of the Supreme Court, Kings County (Kramer, J.), dated October 6, 2011, whichgranted the plaintiff'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 motionfor summary judgment on the issue of liability is denied.
On November 19, 2010, at approximately 11:30 a.m., the plaintiff was operating hisown motor vehicle on Middle Neck Road in Great Neck, when it was struck in the rearby a box truck, operated by the defendant Omar Peralta and owned by the defendantJason Transportation Corp. The weather was clear and the road was dry at the time of theaccident.
In March 2011, the plaintiff commenced this action to recover damages for personalinjuries against the defendants. After the defendants answered the complaint, the plaintiffmoved for summary judgment on the issue of liability, arguing that the defendants'vehicle negligently struck his vehicle in the rear while he was fully stopped at anintersection. In opposition, the defendants argued that summary judgment should not beawarded because the plaintiff had abruptly stopped his vehicle in the middle of theroadway, without any traffic in front of him, approximately 40 to 50 feet from theintersection. The Supreme Court granted the plaintiff's motion, and the defendantsappeal.
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 thatoperator to rebut the inference of negligence by providing a nonnegligent explanation forthe collision (see Tutrani vCounty of Suffolk, 10 NY3d 906, 908 [2008]; Ramos v TC Paratransit, 96AD3d 924, 925 [2012];Pollard v Independent Beauty & Barber Supply Co., 94 AD3d 845, 845-846[2012]; Delvalle v MercedesBenz USA, LLC, 94 AD3d 942 [2012]; Perez v Roberts, 91 AD3d 620, 621 [2012]). Here, theplaintiff established his prima facie entitlement to judgment as a matter of law on theissue of liability by showing that the defendants' vehicle struck the rear of his stoppedvehicle. However, in opposition, the [*2]defendantsraised a triable issue of fact, through Peralta's affidavit, as to whether the plaintiffnegligently caused or contributed to the accident. Peralta averred that the plaintiff'svehicle stopped suddenly and without warning approximately 40 to 50 feet from thenearest intersection, despite the fact that there was no traffic in front of that vehicle(see Ramos v TC Paratransit, 96 AD3d at 925; Pollard v Independent Beauty& Barber Supply Co., 94 AD3d at 845-846; Vargas v Luxury Family Corp., 77 AD3d 820 [2010]; Boockvor v Fischer, 56 AD3d405, 406 [2008]; Klopchinv Masri, 45 AD3d 737 [2007]; Chepel v Meyers, 306 AD2d 235[2003]). Accordingly, the Supreme Court improperly granted the plaintiff's motion forsummary judgment on the issue of liability.
In light of our determination, we need not address the defendants' remainingcontention. Skelos, J.P., Hall, Austin and Hinds-Radix, JJ., concur.