| Bowen v Farrell |
| 2016 NY Slip Op 04900 [140 AD3d 1001] |
| June 22, 2016 |
| Appellate Division, Second Department |
[*1]
| Carlton A. Bowen, Respondent, v Paul J.Farrell, Appellant. |
Abamont & Associates (Hannum Feretic Prendergast & Merlino, LLC,New York, NY [Michael J. White], of counsel), for appellant.
Subin Associates, LLP, New York, NY (Robert J. Eisen, Gregory T. Cerchione, andPollack, Pollack, Isaac & DiCicco, LLP [Brian J. Isaac], of counsel), forrespondent.
In an action to recover damages for personal injuries, the defendant appeals from anorder of the Supreme Court, Queens County (Dufficy, J.), dated January 5, 2015, whichgranted the plaintiff's motion for summary judgment on the issue of liability.
Ordered that the order is affirmed, with costs.
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, requiring that operator tocome forward with evidence of a nonnegligent explanation for the collision in order torebut the inference of negligence (see Tutrani v County of Suffolk, 10 NY3d 906, 908[2008]; Drakh v Levin, 123AD3d 1084, 1085 [2014]; Lisetskiy v Weiss, 123 AD3d 775, 776 [2014]). "To prevailon a motion for summary judgment on the issue of liability, a plaintiff must establish,prima facie, not only that the opposing party was negligent, but also that the plaintiff wasfree from comparative fault" (Phillip v D&D Carting Co., Inc., 136 AD3d 18, 22[2015]; see McLaughlin vLunn, 137 AD3d 757 [2016]).
Here, in support of his motion for summary judgment on the issue of liability, theplaintiff relied on his own deposition testimony and the deposition testimony of thedefendant. Although the parties provided conflicting testimony as to the factssurrounding the accident, under either version of the accident, the defendant's negligencein the operation of his vehicle was the sole proximate cause of the accident (see Clarke v Phillips, 112AD3d 872, 873-874 [2013]; Gibson v Levine, 95 AD3d 1071, 1072 [2012]; Giangrasso v Callahan, 87AD3d 521, 522 [2011]). Accordingly, the plaintiff made a prima facie showing ofhis entitlement to judgment as a matter of law on the issue of liability (see Alvarez vProspect Hosp., 68 NY2d 320, 324 [1986]). In opposition, the defendant failed toraise a triable issue of fact.
Accordingly, the Supreme Court properly granted the plaintiff's motion for summaryjudgment on the issue of liability. Rivera, J.P., Cohen, Maltese and LaSalle, JJ.,concur.