| McLaughlin v Lunn |
| 2016 NY Slip Op 01471 [137 AD3d 757] |
| March 2, 2016 |
| Appellate Division, Second Department |
[*1]
| Madiline R. McLaughlin, Respondent, v KevinP. Lunn et al., Appellants. |
Hardin, Kundla, McKeon & Poletto, P.A., New York, NY (Matthew W. Biondiof counsel), for appellants.
Gregory A. Goodman, P.C., Hauppauge, NY (Jason Tenenbaum of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendants appeal from anorder of the Supreme Court, Nassau County (K. Murphy, J.), entered December 30, 2014,which granted the plaintiff's motion for summary judgment on the issue of liability anddenied, as academic, their cross motion for leave to amend their answer to assert theemergency doctrine as an additional affirmative defense.
Ordered that the order is affirmed, with costs.
A plaintiff in a personal injury action who moves for summary judgment on the issueof liability has the burden of establishing, prima facie, both that the defendant wasnegligent and that he or she was free from comparative fault (see Thoma v Ronai,82 NY2d 736, 737 [1993]; Matos v Tai, 124 AD3d 848 [2015]; France Herly Bien-Aime vClare, 124 AD3d 814, 814 [2015]). Further, "[w]hen the driver of an automobileapproaches another automobile from the rear, he or she is bound to maintain a reasonablysafe rate of speed and control over his [or her] vehicle, and to exercise reasonable care toavoid colliding with the other vehicle" (Gaeta v Carter, 6 AD3d 576, 576 [2004]; seeVehicle and Traffic Law § 1129 [a]; Williams v Spencer-Hall, 113AD3d 759, 759-760 [2014]; Sayyed v Murray, 109 AD3d 464 [2013]; Taing v Drewery, 100 AD3d740, 741 [2012]; Stricklandv Tirino, 99 AD3d 888 [2012]; Scheker v Brown, 85 AD3d 1007 [2011]; Power vHupart, 260 AD2d 458 [1999]). A rear-end collision with a stopped or stoppingvehicle establishes a prima facie case of negligence on the part of the operator of the rearvehicle, requiring that operator to come forward with evidence of a nonnegligentexplanation for the collision in order to rebut the inference of negligence (see Tutrani v County ofSuffolk, 10 NY3d 906 [2008]; Drakh v Levin, 123 AD3d 1084 [2014]; Hauswirth v Transcare N.Y.,Inc., 97 AD3d 792, 794 [2012]; Napolitano v Galletta, 85 AD3d 881 [2011]). "Anonnegligent explanation includes, but is not limited to, 'sudden or unavoidablecircumstances' " (D'Agostino v YRC, Inc., 120 AD3d 1291, 1292 [2014],quoting Gambino v City of New York, 205 AD2d 583, 583 [1994]; see Drakhv Levin, 123 AD3d at 1084).
Here, the plaintiff established her prima facie entitlement to judgment as a matter oflaw. The plaintiff demonstrated, via her affidavit, that while completely stopped behindthree other [*2]vehicles for 5 to 10 seconds at a red lightat an intersection, her vehicle was hit in the rear by the defendants' vehicle. This evidencealone was sufficient to establish a prima facie case of negligence with respect to theoperator of the defendants' vehicle, the defendant Kevin P. Lunn, and to establish, primafacie, that the plaintiff was not negligent in the happening of the subject accident (see Billis v Tunjian, 120 AD3d1168, 1169 [2014]; Moorev Singh, 108 AD3d 602, 603 [2013]; Nozine v Anurag, 38 AD3d 631, 632 [2007]). Inopposition to that prima facie showing, the defendants failed to raise a triable issue offact as to whether there was a nonnegligent explanation for the happening of theaccident, or whether the emergency doctrine applied to this case (see Alvarez vProspect Hosp., 68 NY2d 320, 324 [1986]).
The defendants' remaining contentions are without merit.
Accordingly, the Supreme Court properly granted the plaintiff's motion for summaryjudgment on the issue of liability and denied the defendants' cross motion for leave toamend their answer to assert the emergency doctrine as an additional affirmative defense.Rivera, J.P., Austin, Sgroi and Barros, JJ., concur.