| Grimm v Bailey |
| 2013 NY Slip Op 02220 [105 AD3d 703] |
| April 3, 2013 |
| Appellate Division, Second Department |
| Virginia M. Grimm, Respondent, v Carol A.Bailey, Appellant. |
—[*1] Gregory W. Bagen, Brewster, N.Y. (Dara L. Warren of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendant appeals from anorder of the Supreme Court, Putnam County (Lubell, J.), dated February 15, 2012, whichgranted the plaintiff's motion for leave to reargue her motion for summary judgment onthe issue of liability, and, upon reargument, vacated a prior order of the same court datedDecember 12, 2011, denying the motion, and thereupon granted the motion.
Ordered that the order dated February 15, 2012, is affirmed, with costs.
A motion for leave to reargue "shall be based upon matters of fact or law allegedlyoverlooked or misapprehended by the court in determining the prior motion, but shall notinclude any matters of fact not offered on the prior motion" (CPLR 2221 [d] [2]; see Matter of American AlternativeIns. Corp. v Pelszynski, 85 AD3d 1157, 1158 [2011]). "Motions for reargumentare addressed to the sound discretion of the court which decided the prior motion andmay be granted upon a showing that the court overlooked or misapprehended the facts orlaw or for some [other] reason mistakenly arrived at its earlier decision" (Mudgett v Long Is. R.R., 81AD3d 614, 614 [2011] [internal quotation marks omitted]; see E.W. Howell Co., Inc. v S.A.F.La Sala Corp., 36 AD3d 653, 654 [2007]). Here, the Supreme Court providentlyexercised its discretion in granting reargument since the plaintiff demonstrated that theSupreme Court mistakenly arrived at its earlier determination denying the plaintiff'smotion for summary judgment on the issue of liability (see Mudgett v Long Is.R.R., 81 AD3d at 614).
Upon reargument, the Supreme Court properly granted the plaintiff's motion forsummary judgment on the issue of liability. A rear-end collision with a stopped orstopping vehicle establishes a prima facie case of negligence against the operator of therear vehicle, thereby requiring that operator to rebut the inference of negligence byproviding a nonnegligent explanation for the collision (see Tutrani v County ofSuffolk, 10 NY3d 906, 908 [2008]; Byrne v Calogero, 96 AD3d 704, 705 [2012]). Under thecircumstances of this case, in opposition to the plaintiff's prima facie showing of herentitlement to judgment as a matter of law on the issue of liability, the defendant'sexplanation that she applied her brakes but that her vehicle was unable to stop because oficy road conditions was insufficient to rebut the inference of negligence caused by therear-end collision (see Plummerv Nourddine, 82 AD3d 1069, 1070 [2011]; Faul v Reilly, 29 AD3d 626 [2006]; Kosinski vSayers, 294 AD2d 407, [*2]408 [2002]; Sabbaghv Shalom, 289 AD2d 469 [2001]; Garcia v Hazel, 287 AD2d 481, 482[2001]; Shamah v Richmond County Ambulance Serv., 279 AD2d 564, 565[2001]; Guinan v Suhak Lee, 279 AD2d 507 [2001]; Hurley v Cavitolo,239 AD2d 559 [1997]). Mastro, J.P., Rivera, Hall and Miller, JJ., concur.