| Fernandez v Babylon Mun. Solid Waste |
| 2014 NY Slip Op 03230 [117 AD3d 678] |
| May 7, 2014 |
| Appellate Division, Second Department |
[*1]
| Agustin Fernandez, Respondent, v BabylonMunicipal Solid Waste et al., Appellants. |
McGaw, Alventosa & Zajac, Jericho, N.Y. (Joseph Horowitz of counsel), forappellants.
Levine and Wiss, PLLC (Mitchell Dranow, Sea Cliff, N.Y., of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendants appeal from anorder of the Supreme Court, Nassau County (Woodard, J.), entered December 13, 2012,which granted 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.
The plaintiff commenced this action to recover damages for personal injuries heallegedly sustained when his vehicle was struck in the rear by a vehicle owned by thedefendant Babylon Municipal Solid Waste and operated by the defendant CharlesCatania. The plaintiff moved for summary judgment on the issue of liability. TheSupreme Court granted the motion.
A rear-end collision with a stopped or stopping vehicle establishes a prima facie caseof negligence on the part of the operator of the rear vehicle, thereby requiring thatoperator to rebut the inference of negligence by providing a nonnegligent explanation forthe collision (see Raimondo vPlunkitt, 102 AD3d 851, 852 [2013]; Kertesz v Jason Transp. Corp., 102 AD3d 658 [2013]).
The Supreme Court erred in granting the plaintiff's motion for summary judgment onthe issue of liability. Although the plaintiff's affidavit in support of the motiondemonstrated that his vehicle was struck in the rear, thus raising an inference of Catania'snegligence, the plaintiff's submissions, which included a transcript of Catania'sdeposition testimony, revealed a triable issue of fact as to whether Catania had anonnegligent explanation for the collision. Catania testified at his deposition that hisvehicle was stopped at a traffic light at a distance of approximately eight feet behind theplaintiff's vehicle. When the light changed to green, Catania maintained a safe distancebetween the two vehicles, but the plaintiff came to an abrupt stop for no apparent reasonwhen there was no pedestrian or vehicular traffic in front of it, and the two vehiclescollided. Under these circumstances, a triable issue of fact exists (see Kertesz v Jason Transp.Corp., 102 AD3d 658 [2013]; Pollard v Independent Beauty & Barber Supply Co., 94AD3d 845 [2012]; Harris vAuto Palace Truck Rental & Leasing, Inc., 81 AD3d 691 [2011]; cf. Robayo v Aghaabdul, 109AD3d 892 [2013]; Arias vRosario, 52 AD3d 551 [2008]).
[*2] Since the plaintiff failed to establish his prima facie entitlement to judgment as amatter of law, his motion should have been denied regardless of the sufficiency of thedefendants' opposition papers (see Winegrad v New York Univ. Med. Ctr., 64NY2d 851, 853 [1985]). Skelos, J.P., Austin, Sgroi and LaSalle, JJ., concur.