McLaughlin v. Lunn

• Decision Date: 02 March 2016
• Citation: 26 N.Y.S.3d 338,137 A.D.3d 757
• Parties: Madiline R. McLAUGHLIN, respondent, v. Kevin P. LUNN, et al., appellants.
• Court: New York Supreme Court — Appellate Division

137 A.D.3d 757
26 N.Y.S.3d 338

Madiline R. McLAUGHLIN, respondent,
v.
Kevin P. LUNN, et al., appellants.

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

March 2, 2016.

26 N.Y.S.3d 338

Hardin, Kundla, McKeon & Poletto, P.A., New York, N.Y. (Matthew W. Biondi of counsel), for appellants.

Gregory A. Goodman, P.C., Hauppauge, N.Y. (Jason Tenenbaum of counsel), for respondent.

REINALDO E. RIVERA, J.P., LEONARD B. AUSTIN, SANDRA L. SGROI, and BETSY BARROS, JJ.

In an action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Nassau County (K. Murphy, J.), entered December 30, 2014, which granted the plaintiff's motion for summary judgment on the issue of liability and denied, as academic, their cross motion for leave to amend their answer to assert the emergency doctrine as an additional affirmative defense.

ORDERED that the order is affirmed, with costs.

A plaintiff in a personal injury action who moves for summary judgment on the issue of liability has the burden of establishing, prima facie, both that the defendant was negligent and that he or she was free from comparative fault (see Thoma v. Ronai, 82 N.Y.2d 736, 737, 602 N.Y.S.2d 323, 621 N.E.2d 690 ; Matos v. Tai, 124 A.D.3d 848, 998 N.Y.S.2d 905 ; France Herly Bien–Aime v. Clare, 124 A.D.3d 814, 814, 2 N.Y.S.3d 557 ). Further, "[w]hen the driver of an automobile

26 N.Y.S.3d 339

approaches another automobile from the rear, he or she is bound to maintain a reasonably safe rate of speed and control over his [or her] 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] ; Williams v. Spencer–Hall, 113 A.D.3d 759, 759–760, 979 N.Y.S.2d 157 ; Sayyed v. Murray, 109 A.D.3d 464, 970 N.Y.S.2d 279 ; Taing v. Drewery, 100 A.D.3d 740, 741, 954 N.Y.S.2d 175 ; Strickland v. Tirino, 99 A.D.3d 888, 952 N.Y.S.2d 599 ; Scheker v....