| D'Agostino v YRC, Inc. |
| 2014 NY Slip Op 06168 [120 AD3d 1291] |
| September 17, 2014 |
| Appellate Division, Second Department |
[*1]
| Christina M. D'Agostino, Appellant, v YRC,Inc., et al., Respondents, et al., Defendants. |
Pearlman, Apat, Futterman, Sirotkin & Seinfeld, LLP, Kew Gardens, N.Y.(Richard H. Apat and Martin M. Seinfeld of counsel), for appellant.
Desena & Sweeney, LLP, Bohemia, N.Y. (Paul J. Felicione of counsel), forrespondents.
In an action to recover damages for personal injuries, the plaintiff appeals from anorder of the Supreme Court, Orange County (Bartlett, J.), dated July 31, 2012, whichdenied her motion for summary judgment on the issue of liability.
Ordered that the order is affirmed, with costs.
During the late night hours of October 22, 2010, the plaintiff was driving in thenorthbound right lane of Interstate 87, near Tuxedo, when her vehicle was involved in acollision with a tractor-trailer. As a result of the collision, the plaintiff's vehicle becamedisabled and was stopped in the right lane. As the plaintiff sat in her vehicle after thecollision, it was struck from behind by a tractor-trailer operated by the defendant Peter J.Timpe, Jr., and owned by the defendant YRC, Inc. (hereinafter YRC), a truckingcompany. The plaintiff commenced this action against, among others, YRC and Timpe(hereinafter together the YRC defendants). The plaintiff moved for summary judgmenton the issue of liability, and the Supreme Court denied the motion.
A rear-end collision with a stopped vehicle establishes a prima facie case ofnegligence against the driver of the moving vehicle (see Robayo v Aghaabdul, 109 AD3d 892 [2013]; Gleason v Villegas, 81 AD3d889, 890 [2011]; Gross vMarc, 2 AD3d 681 [2003]; Filippazzo v Santiago, 277 AD2d 419, 420[2000]). A defendant can overcome the presumption of negligence by providing anonnegligent explanation for the collision (see Perez v Roberts, 91 AD3d 620 [2012]; Leal vWolff, 224 AD2d 392 [1996]). However, "[i]f the operator cannot come forwardwith any evidence to rebut the inference of negligence, the plaintiff may properly beawarded judgment as a matter of law" (Barile v Lazzarini, 222 AD2d 635, 636[1995]). A nonnegligent explanation includes, but is not limited to, "sudden orunavoidable circumstances" (Gambino v City of New York, 205 AD2d 583, 583[1994]).
Here, although the plaintiff established her prima facie entitlement to judgment as amatter of law by demonstrating that YRC's vehicle struck the rear of her vehicle while itwas stopped in the right lane (see Robayo v Aghaabdul, 109 AD3d at 893), theYRC defendants raised a triable issue of fact as to whether they had a nonnegligentexplanation for the collision (see Rivera v Gardillo, 113 AD3d 667 [2014]).Accordingly, the Supreme Court correctly denied the plaintiff's motion [*2]for summary judgment on the issue of liability. Mastro,J.P., Dillon, Miller and Maltese, JJ., concur.