| DeAngelis v Martens Farms, LLC |
| 2013 NY Slip Op 01633 [104 AD3d 1125] |
| March 15, 2013 |
| Appellate Division, Fourth Department |
| William Joseph Deangelis et al., Respondents-Appellants, vMartens Farms, LLC, Appellant-Respondent, and Kristie E. Marion, Respondent.(Appeal No. 1.) |
—[*1] Sugarman Law Firm, LLP, Syracuse (Esam Ahmad Elbadawi of counsel), forplaintiffs-respondents-appellants. Barth Sullivan Behr, Syracuse (David Walsh of counsel), fordefendant-respondent.
Appeal and cross appeal from an order of the Supreme Court, Cayuga County(Thomas G. Leone, A.J.), entered December 12, 2011. The order, among other things,denied the motion of defendant Martens Farms, LLC for summary judgment.
It is hereby ordered that the order so appealed from is unanimously affirmed withoutcosts.
Memorandum: This personal injury action arises out of a motor vehicle accident inwhich a vehicle operated by William Joseph DeAngelis (plaintiff) was rear-ended by avehicle operated by defendant Kristie E. Marion. After the accident, it was discoveredthat diesel fuel had been spilled onto the roadway shortly before the accident by a truckowned by defendant Martens Farms, LLC (Martens), which occurred when the truck'sfuel filter failed. We conclude that Supreme Court properly denied both Martens's motionfor summary judgment dismissing the amended complaint and all cross claims against itand plaintiffs' motion for partial summary judgment on the issue of liability, i.e.,negligence and serious injury (see Ruzycki v Baker, 301 AD2d 48, 51-52[2002]).
Martens's motion was based on the grounds, inter alia, that it neither caused nor hadnotice of the defect that resulted in diesel fuel being spilled on the roadway and that, inany event, the spilled fuel was not a proximate cause of the accident as a matter of law.Martens failed to meet its initial burden of establishing as a matter of law that it neithercaused the fuel leak nor had notice of a defect in the leaking fuel filter. It is well settledthat a moving party "must affirmatively establish the merits of its cause of action ordefense and does not meet its burden by noting gaps in its opponent's proof" (Orcuttv American Linen Supply Co., 212 AD2d [*2]979,980 [1995]; see Lane v TexasRoadhouse Holdings, LLC, 96 AD3d 1364, 1364 [2012]; Dodge v City ofHornell Indus. Dev. Agency, 286 AD2d 902, 903 [2001]). Even assuming,arguendo, that Martens met its initial burden of establishing that the spilled diesel fuelwas not a proximate cause of the motor vehicle accident by offering the affidavit of itsaccident reconstruction expert, we conclude that plaintiffs raised an issue of fact bysubmitting an affidavit of their own accident reconstruction expert. As a result, "[t]hepapers before the court on that issue 'presented a credibility battle between the parties'experts, and issues of credibility are properly left to a jury for its resolution' " (Baity v General Elec. Co., 86AD3d 948, 952 [2011]; see Barbuto v Winthrop Univ. Hosp., 305 AD2d623, 624 [2003]).
We likewise conclude with respect to plaintiffs' motion that, just as there are issuesof fact precluding summary judgment in Martens's favor, those same issues of factrequire denial of that part of plaintiffs' motion for partial summary judgment againstMartens with respect to negligence, including proximate cause. In addition, while the factthat Marion's vehicle rear-ended plaintiff's stopped vehicle is prima facie evidence ofMarion's negligence, the presence of diesel fuel on the road at the time of the accidentrebuts the presumption of negligence by providing a nonnegligent explanation for thecollision, thereby requiring denial of that part of plaintiffs' motion for partial summaryjudgment against Marion with respect to negligence (see Ramadan v Maritato, 50 AD3d 1620, 1621 [2008]; see also Dalton v Lucas, 96AD3d 1648, 1649-1650 [2012]). Lastly, even assuming, arguendo, that plaintiffsmet their initial burden in moving for partial summary judgment on the issue of seriousinjury, the papers submitted in opposition created an issue of fact regarding whetherplaintiff sustained a serious injury in this motor vehicle accident (see InsuranceLaw § 5102 [d]; see generally Zuckerman v City of New York, 49 NY2d557, 562 [1980]). Present—Scudder, P.J., Centra, Carni, Lindley and Sconiers, JJ.