Grimm v. Bailey

• Decision Date: 03 April 2013
• Citation: 2013 N.Y. Slip Op. 02220,963 N.Y.S.2d 277,105 A.D.3d 703
• Parties: Virginia M. GRIMM, respondent, v. Carol A. BAILEY, appellant.
• Court: New York Supreme Court — Appellate Division

105 A.D.3d 703

963 N.Y.S.2d 277

2013 N.Y. Slip Op. 02220

Virginia M. GRIMM, respondent,

v.Carol A. BAILEY, appellant.

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

April 3, 2013.

Karen L. Lawrence, Tarrytown, N.Y. (David Holmes of counsel), for appellant.

Gregory W. Bagen, Brewster, N.Y. (Dara L. Warren of counsel), for respondent.

WILLIAM F. MASTRO, J.P., REINALDO E. RIVERA, L. PRISCILLA HALL, and ROBERT J. MILLER, JJ.

In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Putnam County (Lubell, J.), dated February 15, 2012, which granted the plaintiff's motion for leave to reargue her motion for summary judgment on the issue of liability, and, upon reargument, vacated a prior order of the same court dated December 12, 2011, denying the motion, and thereupon granted the motion.

ORDERED that the order dated February 15, 2012, is affirmed, with costs.

A motion for leave to reargue “shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion” (CPLR 2221[d][2]; see Matter of American Alternative Ins. Corp. v. Pelszynski, 85 A.D.3d 1157, 1158, 926 N.Y.S.2d 640).“Motions for reargument are addressed to the sound discretion of the court which decided the prior motion and may be granted upon a showing that the court overlooked or misapprehended the facts or law or for some [other] reason mistakenly arrived at its earlier decision” ( Mudgett v. Long Is. R.R., 81 A.D.3d 614, 614, 915 N.Y.S.2d 649 [internal quotation marks omitted]; see E.W. Howell Co., Inc. v. S.A.F. La Sala Corp., 36 A.D.3d 653, 654, 828 N.Y.S.2d 212). Here, the Supreme Court providently exercised its discretion in granting reargument since the plaintiff demonstrated that the Supreme Court mistakenly arrived at its earlier determination denying the plaintiff's motion for summary judgment on the issue of liability ( see Mudgett v. Long Is. R.R., 81 A.D.3d at 614, 915 N.Y.S.2d 649).

Upon reargument, the Supreme Court properly granted the plaintiff's motion for summary judgment on the issue of liability. A rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence against the operator of the rear vehicle, thereby requiring that operator to rebut the inference of negligence by providing a nonnegligent explanation for the collision ( see Tutrani v. County of Suffolk, 10 N.Y.3d 906, 908, 861 N.Y.S.2d 610, 891 N.E.2d 726;Byrne v. Calogero, 96 A.D.3d 704, 705, 945 N.Y.S.2d 737). Under the circumstances of this case, in opposition to the plaintiff's prima facie showing of her entitlement to judgment as a...