Callahan v. Owens, 2007 NY Slip Op 30719(U) (N.Y. Sup. Ct. 3/23/2007)
| Decision Date | 23 March 2007 |
| Docket Number | 0016396/2006.,Motion Sequence No.: 002 MG. |
| Citation | 2007 NY Slip Op 30719 |
| Parties | CINDY A. CALLAHAN, Plaintiff, v. GEORGE W. OWENS, Defendant. |
| Court | New York Supreme Court |
Harold A. Shapiro, Selden, New York, Attorney for Plaintiff.
Robert P. Tusa, Hauppauge, NY, Attorneys for Defendant.
Upon the following papers filed and considered relative to this matter:
Notice of Motion dated January 26, 2007; Affirmation dated December 28, 2006; Affidavit dated January 22, 2007; Exhibits A through C; Affirmation in Opposition dated February 23, 2007; and upon due deliberation; it is
ORDERED, that the motion by plaintiff, pursuant to CPLR 3212, for an Order directing the airy of summary judgment in favor of plaintiff and against the defendant on the issue of liability, is granted.
The instant action was commenced to recover damages for personal injuries allegedly sustained by the plaintiff, in a motor vehicle accident which occurred on November 18, 2004. The plaintiff alleges that on that date, a motor vehicle owned and operated by the defendant, George W. Owens, negligently struck the rear of plaintiffs vehicle while said plaintiffs vehicle was in the process of slowing down in obedience to traffic and the traffic conditions then existing on the Long Island Expressway, Brookhaven, New York.
In opposition to the motion, the defendant has failed to submit an affidavit sufficient to either challenge the facts as set forth by plaintiff; or to create an issue of fact sufficient to deny the relief sought.
The Second Department has consistently held that a rear-end collision with a stopped vehicle imposes a duty on the operator of the moving vehicle to explain how the accident occurred. Leal v. Wolff, 224 A.D.2d 392, 638 N.Y.S.2d 100; Mendiolaza v. Novinski, 268 A.D.2d 462, 703 N.Y.S.2d 49; Young v. City of New York, 113 A.D.2d 833, 493 N.Y.S.2d 585; Starace v. Qonexions, 198 A.D.2d 493, 604 N.Y.S.2d 179. Such "a rear-end collision with a stopped vehicle establishes a prima facie case of negligence on the part of the driver of the moving vehicle, requiring the operator of that vehicle to come forward with a non-negligent explanation for the accident." Dhamah v. Richmond County Ambulance Service, Inc., 279 A.D.2d 564 at 565, 719 N.Y.S.2d 287. It is well established in this jurisdiction that in a rear-end collision with a stopped or stopping vehicle, a prima facie case of negligence is established against the defendant operator. Filippazzo v. Santiago, 277 A.D.2d 419, 716 N.Y.S.2d 710; Arigro v. Norfolk Contract Carrier, Inc., 275 A.D.2d 384, 712 N.Y.S.2d 599; Power v. Hupart, 260 A.D.2d 458, 688 N.Y.S.2d 194.
Additionally, in a rear-end collision situation, the defendant bears the duty to maintain a safe distance between the defendant's vehicle and plaintiff's vehicle, and the failure to do so will establish a prima facie case of negligence, as a matter of law, against the defendant operator. Lifshits v. Variety Poly Bags, 278 A.D.2d 372, 717 N.Y.S.2d 630; Pena v. Allen, 272 A.D.2d 311, 707 N.Y.S.2d 643; Hernandez v. Burkitt, 271 A.D.2d 648, 706 N.Y.S.2d 456. "[V]ehicle stops which are foreseeable under the prevailing traffic conditions, even if sudden and frequent, must be anticipated by the driver who follows, since he or she is under a duty to maintain a safe distance between his or her car and the car ahead." Shamah v. Richmond County Ambulance Service, 279 A.D.2d 564, 719 N.Y.S.2d 287, 288.
Here, the plaintiff has met her burden by establishing through pleadings and an affidavit that she was lawfully stopping when the defendant ran into the rear of her vehicle. Daliendo v. Johnson, 147 A.D.2d 312, 543 N.Y.S.2d 987; Ribowsky v. Kashinsky,...
To continue reading
Request your trial