Binkowitz v. Kolb

• Decision Date: 27 January 2016
• Docket Number: Index No. 1876/14.,2015-03211
• Citation: 2016 N.Y. Slip Op. 00462,135 A.D.3d 884,24 N.Y.S.3d 186
• Parties: Jay BINKOWITZ, appellant, v. John KOLB, respondent.
• Court: New York Supreme Court — Appellate Division

135 A.D.3d 884

24 N.Y.S.3d 186

2016 N.Y. Slip Op. 00462

Jay BINKOWITZ, appellant,

v.John KOLB, respondent.

2015-03211

Index No. 1876/14.

Supreme Court, Appellate Division, Second Department, New York.

Jan. 27, 2016.

Wittenstein & Associates, P.C., Brooklyn, N.Y. (Harlan Wittenstein of counsel), for appellant.

Roe & Associates, New York, N.Y. (William J. Balletti, Paganini, Cioci, Pinter, Cusumano & Farole, and Carcagno & Associates of counsel), for respondent.

In an action, inter alia, to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Baisley, Jr., J.), dated September 25, 2014, which denied his motion for summary judgment on the issue of liability.

ORDERED that the order is reversed, on the law, with costs, and the plaintiff's motion for summary judgment on the issue of liability is granted.

“When the driver of an automobile approaches another automobile from the rear, he or she is bound to maintain a reasonably safe rate of speed and control over his vehicle, and to exercise reasonable care to avoid colliding with the other vehicle” (Gaeta v. Carter, 6 A.D.3d 576, 576, 775 N.Y.S.2d 86; see Vehicle and Traffic Law § 1129[a]; Brothers v. Bartling, 130 A.D.3d 554, 555, 13 N.Y.S.3d 202; Williams v. Spencer–Hall, 113 A.D.3d 759, 759–760, 979 N.Y.S.2d 157). A rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the operator of the rear vehicle, requiring that operator to come forward with evidence of a nonnegligent explanation for the collision in order to rebut the inference of negligence (see Whelan v. Sutherland, 128 A.D.3d 1055, 1056, 9 N.Y.S.3d 639; Drakh v. Levin, 123 A.D.3d 1084, 1085, 1 N.Y.S.3d 202; Gutierrez v. Trillium USA, LLC, 111 A.D.3d 669, 670, 974 N.Y.S.2d 563). A nonnegligent explanation may include evidence of a mechanical failure, a sudden, unexplained stop of the vehicle ahead, an unavoidable skidding on wet pavement, or any other reasonable cause (see Etingof v. Metropolitan Laundry Mach. Sales, Inc., 134 A.D.3d 667, 20 N.Y.S.3d 589; D'Agostino v. YRC, Inc., 120 A.D.3d 1291, 1292, 992 N.Y.S.2d 358; Ramos v. TC Paratransit, 96 A.D.3d 924, 925, 946 N.Y.S.2d 644; Fajardo v. City of New York, 95 A.D.3d 820, 821, 943 N.Y.S.2d 587).

Here, on his motion for summary judgment on the issue of liability, the plaintiff established his prima facie entitlement to judgment as a matter of law by submitting an affidavit in which he stated that his vehicle was stopped when it was struck in the rear (see Salako v. Nassau Inter–County Express, 131 A.D.3d 687, 687–688, 15 N.Y.S.3d 444; Le Grand v. Silberstein, 123 A.D.3d 773, 775, 999 N.Y.S.2d 96; Cheow v. Cheng Lin Jin, 121 A.D.3d 1058, 1059, 995 N.Y.S.2d 186; Williams v. Spencer–Hall, 113 A.D.3d at 760, 979 N.Y.S.2d 157). In opposition, the defendant failed to submit evidence either denying the plaintiff's allegations or offering a nonnegligent...