| Lisetskiy v Weiss |
| 2014 NY Slip Op 08609 [123 AD3d 775] |
| December 10, 2014 |
| Appellate Division, Second Department |
[*1]
| Vladislav Lisetskiy et al., Appellants, v IsraelWeiss et al., Respondents. |
William Pager, Brooklyn, N.Y., for appellants.
James G. Bilello (Russo Apoznanski & Tambasco, Melville, N.Y.[Susan J. Mitola], of counsel), for respondents.
In an action to recover damages for personal injuries, the plaintiffs appeal, as limitedby their brief, from so much of an order of the Supreme Court, Kings County(Rothenberg, J.), dated September 12, 2013, as denied their motion for summaryjudgment on the issue of liability.
Ordered that the order is affirmed insofar as appealed from, with costs.
On September 1, 2011, the plaintiff Vladislav Lisetskiy was operating a motorvehicle on Ninth Avenue in Brooklyn and the plaintiff Mikhail Pekarovskiy was apassenger in the vehicle. According to the plaintiffs, while their vehicle was stopped at ared traffic light at the intersection of Ninth Avenue and 49th Street, it was struck in therear by a vehicle owned by the defendant Henry Weiss and operated by the defendantIsrael Weiss. In July 2012, the plaintiffs commenced this action against the defendants.Prior to the completion of discovery, the plaintiffs moved for summary judgment on theissue of liability. The defendants opposed the plaintiffs' motion and cross-moved forsummary judgment dismissing the complaint. The Supreme Court denied both the motionand the cross motion. The plaintiffs appeal from so much of the order as denied theirmotion for summary judgment on the issue of liability.
"A rear-end collision with a stopped or stopping vehicle creates a prima facie case ofnegligence with respect to the operator of the moving vehicle and imposes a duty on theoperator to rebut the inference of negligence by providing a non-negligent explanationfor the collision" (Delgado vBang, 120 AD3d 608, 609 [2014]; see Robayo v Aghaabdul, 109 AD3d 892, 893 [2013]; Mallen v Su, 67 AD3d974 [2009]). "A nonnegligent explanation includes, but is not limited to, 'sudden orunavoidable circumstances' " (D'Agostino v YRC, Inc., 120 AD3d 1291, 1292 [2014],quoting Gambino v City of New York, 205 AD2d 583, 583 [1994]).
Here, the plaintiffs established their prima facie entitlement to judgment as a matterof law on the issue of liability by submitting the affidavit of the plaintiff VladislavLisetskiy, who stated that their vehicle was struck in the rear while it was stopped at a redtraffic light (see Cajas-Romerov Ward, 106 AD3d 850, 851-852 [2013]; Ramos v TC Paratransit, 96 AD3d 924, 925 [2012]),thereby shifting the burden to the defendants to come forward with a nonnegligentexplanation for the accident (seeAbbott v Picture Cars E., Inc., 78 AD3d 869 [2010]). In opposition, thedefendants [*2]submitted the affidavit of Israel Weiss, inwhich he stated that as he approached the plaintiffs' vehicle, it suddenly and withoutwarning went into reverse and struck the front of his vehicle. This affidavit wassufficient to raise a triable issue of fact as to whether the plaintiffs caused or contributedto the accident (see Rivera vGardillo, 113 AD3d 667 [2014]; Markesinis v Jaquez, 106 AD3d 961 [2013]; Ramos vTC Paratransit, 96 AD3d at 925-926; Abbott v Picture Cars E., Inc., 78AD3d at 869-870).
The plaintiffs' remaining contentions are without merit.
Accordingly, the Supreme Court properly denied the plaintiffs' motion for summaryjudgment on the issue of liability. Dillon, J.P., Dickerson, Leventhal and Hall, JJ.,concur.