Cortes v. Whelan

• Decision Date: 12 April 2011
• Citation: 922 N.Y.S.2d 419,2011 N.Y. Slip Op. 03018,83 A.D.3d 763
• Parties: Michael CORTES, respondent,v.George P. WHELAN, appellant.
• Court: New York Supreme Court — Appellate Division

83 A.D.3d 763

922 N.Y.S.2d 419

2011 N.Y. Slip Op. 03018

Michael CORTES, respondent,

v.George P. WHELAN, appellant.

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

April 12, 2011.

Richard T. Lau, Jericho, N.Y. (Keith E. Ford of counsel), for appellant.Gruenberg & Kelly, P.C., Ronkonkoma, N.Y. (John Aviles of counsel), for respondent.JOSEPH COVELLO, J.P., L. PRISCILLA HALL, PLUMMER E. LOTT, and JEFFREY A. COHEN, JJ.

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Suffolk County (Mayer, J.), dated September 17, 2010, which granted the plaintiff's motion for summary judgment on the issue of liability.

ORDERED that the order is affirmed, with costs.

The plaintiff allegedly was injured when the defendant's motor vehicle collided with the rear of the plaintiff's stopped motor vehicle. After joinder of issue, but before any discovery was conducted, the plaintiff moved for summary judgment on the issue of liability.

A rear-end collision with a stopped vehicle creates a prima facie case of negligence against the operator of the moving vehicle, thereby requiring that operator to rebut the inference of negligence by providing a non-negligent explanation for the collision ( see Ramirez v. Konstanzer, 61 A.D.3d 837, 878 N.Y.S.2d 381; Hakakian v. McCabe, 38 A.D.3d 493, 833 N.Y.S.2d 106; Girolamo v. Liberty Lines Tr., 284 A.D.2d 371, 726 N.Y.S.2d 132). If the operator of the moving vehicle cannot come forward with evidence to rebut the inference of negligence, the operator of the stopped vehicle is entitled to summary judgment on the issue of liability ( see Staton v. Ilic, 69 A.D.3d 606, 892 N.Y.S.2d 486; Kimyagarov v. Nixon Taxi Corp., 45 A.D.3d 736, 846 N.Y.S.2d 309; Piltser v. Donna Lee Mgt. Corp., 29 A.D.3d 973, 816 N.Y.S.2d 543).

The plaintiff established his prima facie entitlement to judgment as a matter of law by submitting his affidavit, in which he alleged that he was stopped behind another stopped vehicle at the intersection of Pine Aire Drive and Thompson Avenue in Bay Shore “when suddenly, and without warning, [his] vehicle was struck from behind ... by” the defendant's vehicle ( see Hauser v. Adamov, 74 A.D.3d 1024, 904 N.Y.S.2d 102).

In opposition, the defendant failed to rebut the inference of negligence by providing a non-negligent explanation for the collision. The defendant's allegation that he did not recall seeing brake lights or any other illumination on the plaintiff's vehicle before the collision did not adequately rebut the inference of negligence ( see Macauley v. Elrac, Inc., 6 A.D.3d 584, 585, 775 N.Y.S.2d 78; Gross v. Marc, 2 A.D.3d 681, 768 N.Y.S.2d 627; Waters v. City of New York, 278 A.D.2d 408, 409, 717 N.Y.S.2d 647; Barile v. Lazzarini, 222 A.D.2d 635, 635 N.Y.S.2d 694). Similarly, the defendant's statement that, upon turning left off the exit ramp he “almost immediately came into contact with the rear of the vehicle ... operated by the plaintiff,” does not rebut the inference of negligence. Indeed, the statement indicates that the defendant failed to control his vehicle and to see that which, under the circumstances, he should have seen by the proper use of his senses ( see...