Schmertzler v. Lease Plan U.S.A., Inc.

• Decision Date: 23 March 2016
• Citation: 27 N.Y.S.3d 648,137 A.D.3d 1101
• Parties: Deborah SCHMERTZLER, respondent, v. LEASE PLAN U.S.A., INC., et al., appellants.
• Court: New York Supreme Court — Appellate Division

137 A.D.3d 1101

27 N.Y.S.3d 648

Deborah SCHMERTZLER, respondent,

v.LEASE PLAN U.S.A., INC., et al., appellants.

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

March 23, 2016.

Harris Beach PLLC, New York, N.Y. (Steven J. Rice, Svetlana K. Ivy, and Allison A. Bosworth of counsel), for appellants.

Weser & Weser, P.C., Brooklyn, N.Y. (Nicholas E. Tzaneteas and Ira B. Gordon of counsel), for respondent.

WILLIAM F. MASTRO, J.P., CHERYL E. CHAMBERS, SHERI S. ROMAN, and BETSY BARROS, JJ.

In an action to recover damages for personal injuries, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County(Vaughan, J.), dated June 17, 2015, as granted those branches of the plaintiff's motion which were for summary judgment on the issue of liability and dismissing their first and second affirmative defenses.

ORDERED that the order is affirmed insofar as appealed from, with costs.

The plaintiff allegedly was injured when her vehicle was struck in the rear by the defendants' vehicle.At the time of the accident, the plaintiff's vehicle was slowing down for a traffic condition ahead.The plaintiff commenced this action to recover damages for her personal injuries and moved, inter alia, for summary judgment on the issue of liability and dismissing the defendants' first and second affirmative defenses.In the order appealed from, the Supreme Court, inter alia, granted those branches of the plaintiff's motion.The defendants appeal from those portions of the order.

"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 or her vehicle, and to exercise reasonable care to avoid colliding with the other vehicle"(Singh v. Avis Rent A Car Sys., Inc.,119 A.D.3d 768, 769, 989 N.Y.S.2d 302;seeGallo v. Jairath,122 A.D.3d 795, 796, 996 N.Y.S.2d 682;Taing v. Drewery,100 A.D.3d 740, 741, 954 N.Y.S.2d 175 )."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, thereby requiring that operator to rebut the inference of negligence by providing a nonnegligent explanation for the collision"(Whelan v. Sutherland,128 A.D.3d 1055, 1056, 9 N.Y.S.3d 639;seeTutrani v. County of Suffolk,10 N.Y.3d 906, 908, 861 N.Y.S.2d 610, 891 N.E.2d 726;Brothers v. Bartling,130 A.D.3d 554, 555, 13 N.Y.S.3d 202 )."To prevail on a motion for summary judgment on the issue of liability, a plaintiff must establish, prima facie, not only that the opposing party was negligent, but also that the plaintiff was free from comparative fault"(...