| Gifford v Consolidated Edison Co. of N.Y. |
| 2013 NY Slip Op 01062 [103 AD3d 773] |
| February 20, 2013 |
| Appellate Division, Second Department |
| Tashiema Gifford, Appellant, v ConsolidatedEdison Company of New York et al., Respondents. |
—[*1] Richard W. Babinecz, New York, N.Y. (Stephen T. Brewi of counsel), forrespondents.
In an action to recover damages for personal injuries, the plaintiff appeals from anorder of the Supreme Court, Kings County (Rothenberg, J.), dated March 22, 2012,which denied her 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 granted.
This action arose from the alleged collision between the plaintiff's car and thedefendants' truck on September 11, 2008, on the Van Wyck Expressway. It was allegedthat, in slow traffic, the truck owned by the defendant Consolidated Edison Company ofNew York and operated by the defendant James Sullivan came into contact with the rearof the plaintiff's car, causing the plaintiff to sustain serious injury (see InsuranceLaw § 5102 [d]). After discovery was completed, the plaintiff moved for summaryjudgment on the issue of liability. The Supreme Court denied the motion, and theplaintiff appeals.
Vehicle and Traffic Law § 1129 prohibits "following too closely": "The driverof a motor vehicle shall not follow another vehicle more closely than is reasonable andprudent, having due regard for the speed of such vehicles and the traffic upon and thecondition of the highway" (Vehicle and Traffic Law § 1129 [a]; see Sehgal vwww.nyairportsbus.com, Inc., 100 AD3d 860, 860 [2012]; Napolitano v Galletta, 85AD3d 881, 882 [2011]). Accordingly, the general rule is that "a rear-end collisionwith a stopped or stopping vehicle creates a prima facie case of negligence with respectto the operator of the rearmost vehicle" (Sehgal v www.nyairportsbus.com, Inc.,100 AD3d at 860; see Abbott vPicture Cars E., Inc., 78 AD3d 869, 869 [2010]). Here, the plaintiff establishedher prima facie entitlement to judgment as a matter of law on the issue of liability bydemonstrating that her car was stopped or stopping when the defendants' truck struck hercar in the rear (see Sehgal v www.nyairportsbus.com, Inc., 100 AD3d at 861). Inopposition, the defendants failed to raise a triable issue of fact. Specifically, although thedefendants submitted evidence that the occupants of their truck did not feel an impactwith the plaintiff's car, they submitted no evidence that there had, [*2]in fact, been no impact (see Murphy v Epstein, 72 AD3d 767, 768 [2010]; cf. Voskin v Lemel, 52 AD3d503, 503 [2008]), or that provided a nonnegligent explanation for the rear-endcollision (see Staton v Ilic,69 AD3d 606, 607 [2010]; cf. Abbott v Picture Cars E., Inc., 78 AD3d 869-870[2010]). Accordingly, the Supreme Court should have granted the plaintiff's motion forsummary judgment on the issue of liability (see Ortiz v Fage USA Corp., 69 AD3d 914, 914 [2010]).Balkin, J.P., Lott, Austin and Sgroi, JJ., concur.