Zachary W. Carter, Corporation Counsel, New York, NY (Jane L.
Gordon and Ellen Ravitch of counsel), for appellants.
Greifer & Tunick, LLP, White Plains, NY (Mitchell A.
Greene of counsel), for respondent.
REINALDO E. RIVERA, J.P., LEONARD B. AUSTIN, SHERI S. ROMAN,
FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER
action to recover damages for personal injuries, the
defendants appeal from an order of the Supreme Court, Kings
County (Jimenez-Salta, J.), dated August 21, 2015, which
granted the plaintiff's motion for summary judgment on
the issue of liability.
that the order is affirmed, with costs.
plaintiff allegedly was injured when her vehicle was
rear-ended by a street sweeper vehicle owned by the defendant
City of New York and operated by the defendant William M.
Neal in Brooklyn. The plaintiff subsequently commenced this
action against the defendants, and then moved for summary
judgment on the issue of liability. In support of the motion,
the plaintiff submitted, inter alia, an affidavit wherein she
stated that she was proceeding straight on Foster Avenue when
a parked vehicle suddenly pulled out from the curb and cut
her off. The plaintiff stated that in response, she brought
her vehicle to a stop, and after her vehicle had come to a
complete stop, it was rear-ended by the defendants'
vehicle. In opposition to the motion, Neal submitted an
affidavit that corroborated the plaintiff's version of
the accident. Neal stated that before the plaintiff's
vehicle was cut off by the third vehicle, his vehicle was at
least one car length behind the plaintiff's vehicle. He
stated that he could not bring his vehicle to a stop in time
to avoid the accident "due to the size and shape"
of his street sweeper vehicle. The Supreme Court granted the
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 vehicle, and to
exercise reasonable care to avoid colliding with the other
vehicle" (Gaeta v Carter, 6 A.D.3d 576, 576;
see Gallo v Jairath, 122 A.D.3d 795, 796; Taing
v Drewery, 100 A.D.3d 740, 741). A rear-end collision
with a stopped or stopping vehicle creates 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; Brothers v Bartling, 130 A.D.3d
554, 555; Le Grand v Silberstein, 123 A.D.3d 773,
774; Williams v Spencer-Hall, 113 A.D.3d 759, 760).
"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"
(Phillip v D & D Carting Co., Inc., 136 A.D.3d
18, 22; see Melendez v McCrowell, 139 A.D.3d 1018,
in support of her motion, the plaintiff submitted evidence
sufficient to establish, prima facie, that she was not
negligent in the happening of the accident, and that
Neal's negligent operation of his vehicle was the sole
proximate cause of the accident (see Staski v
Shlayan, 132 A.D.3d 971; Cajas-Romero v Ward,
106 A.D.3d 850, 852; Ayach v Ghazal, 25 A.D.3d 742,
743). In opposition, the defendants failed to raise a triable
issue of fact as to whether the plaintiff was comparatively
at fault or whether Neal had a nonnegligent explanation for
rear-ending the plaintiff's vehicle (see Alvarez v
Prospect Hosp., 68 N.Y.2d 320, 324). Contrary to the
defendants' contention, the motion was not premature
(see CPLR 3212[f]; Staski v Shlayan, 132
A.D.3d at 973; Singh v Avis Rent A Car Sys., Inc.,
119 A.D.3d 768, 770; Williams v Spencer-Hall, 113
A.D.3d at 760; Cajas-Romero v Ward, 106 A.D.3d at
852). Additionally, the emergency doctrine is not applicable
to this case (see Vehicle and Traffic Law §
1129[a]; Lowhar-Lewis v Metropolitan Transp. Auth.,
97 A.D.3d 728, 729; Jacobellis v New York State Thruway
Auth., 51 A.D.3d 976, 977; Campanella v Moore,
266 A.D.2d 423, 424; Kowchefski v Urbanowicz, 102
the Supreme Court properly granted the plaintiff's motion
for summary ...