| Lutz v Defabio |
| 2016 NY Slip Op 04917 [140 AD3d 1032] |
| June 22, 2016 |
| Appellate Division, Second Department |
[*1]
| Maegan Lutz, Respondent, v Daniel C. Defabioet al., Appellants. |
Karen L. Lawrence (Sweetbaum & Sweetbaum, Lake Success, NY [Marshall D.Sweetbaum], of counsel), for appellants.
Theodore A. Naima, P.C., Garden City, NY (Maximillian M. Schwarz of counsel),for respondent.
In an action to recover damages for personal injuries, the defendants appeal from anorder of the Supreme Court, Nassau County (K. Murphy, J.), entered October 1, 2015,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.
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]; Phillip v D&D Carting Co., Inc., 136 AD3d 18, 22[2015]; Matos v Tai, 124AD3d 848 [2015]; FranceHerly Bien-Aime v Clare, 124 AD3d 814, 814 [2015]; Adams v Bruno, 124 AD3d566, 567 [2015]). Here, in support of her motion for summary judgment, theplaintiff submitted her affidavit in which she averred that, while stopped for a red lighton Park Avenue at its intersection with North Woodhull Road in Huntington, her vehiclewas struck in the rear by the defendants' vehicle. This affidavit was sufficient to establishthe plaintiff's prima facie entitlement to judgment as a matter of law, as it demonstratedthat she was not comparatively negligent in the happening of the subject accident andestablished a prima facie case of negligence against the defendants, requiring them tocome forward with a nonnegligent explanation for the rear-end collision with her vehicle(see Cortese v Pobejimov,136 AD3d 635 [2016]; Phillip v D&D Carting Co., Inc., 136 AD3d at23; Sokolowska v Song,123 AD3d 1004, 1005 [2014]; Lisetskiy v Weiss, 123 AD3d 775, 777 [2014]; Gallo v Jairath, 122 AD3d795, 797 [2014]; Cajas-Romero v Ward, 106 AD3d 850, 851-852 [2013]; Ramos v TC Paratransit, 96AD3d 924, 925 [2012]).
In opposition to the plaintiff's prima facie showing, the defendants raised a triableissue of fact by providing a nonnegligent explanation for the rear-end collision. Theaffidavit of the driver of the defendants' vehicle, the defendant Daniel C. Defabio,averred that an unidentified vehicle struck his vehicle in the rear, causing his vehicle tomove forward and strike the rear of the [*2]plaintiff'svehicle (see Kuris v El SolContr. & Constr. Corp., 116 AD3d 675 [2014]; Katz v Masada II Car & LimoServ., Inc., 43 AD3d 876 [2007]). Accordingly, the Supreme Court should havedenied the plaintiff's motion for summary judgment on the issue of liability. Rivera, J.P.,Cohen, Maltese and LaSalle, JJ., concur.