- May 1, 2018
& Bernstein, PC, New York, NY (Thomas Torto and Jason
Levine of counsel), for appellant.
G. Bilello & Associates (Russo & Tambasco, Melville,
NY [Susan J. Mitola and Melissa Marano], of counsel), for
M. LEVENTHAL, J.P. SANDRA L. SGROI SYLVIA O. HINDS-RADIX
COLLEEN D. DUFFY, JJ.
DECISION & ORDER
action to recover damages for personal injuries, the
plaintiff appeals from a judgment of the Supreme Court, Kings
County (Bernard J. Graham, J.), entered September 21, 2016.
The judgment, upon an order of the same court dated February
7, 2014, denying the plaintiffs motion for summary judgment
on the issue of liability, a jury verdict on the issue of
liability in favor of the defendant, and an order dated
December 23, 2015, denying the plaintiffs motion pursuant to
CPLR 4404(a) to set aside the verdict and for judgment as a
matter of law, is in favor of the defendant and against the
plaintiff, in effect, dismissing the complaint.
that the judgment is affirmed, with costs.
plaintiff allegedly was injured when the vehicle he was
driving was struck in the rear by a vehicle owned and
operated by the defendant. Thereafter, the plaintiff
commenced this action to recover damages for personal
injuries, and, prior to the taking of depositions, moved for
summary judgment on the issue of liability. The motion was
denied in an order dated February 7, 2014, and the matter
proceeded to a bifurcated trial before a jury. The jury found
in favor of the defendant at the conclusion of the liability
phase of the trial, and upon the denial of the plaintiffs
subsequent motion pursuant to CPLR 4404(a) to set aside the
verdict and for judgment as a matter of law, a judgment was
entered in favor of the defendant and against the plaintiff,
in effect, dismissing the complaint. The plaintiff appeals
from the judgment.
a general rule, a rear-end collision with a stopped or
stopping vehicle creates a prima facie case of negligence
with respect to the operator of the rearmost vehicle,
imposing a duty of explanation on that operator to excuse the
collision either through a mechanical failure, a sudden stop
of the vehicle ahead, an unavoidable skidding on a wet
pavement, or any other reasonable cause" (DeLouise v
S.K.I. Wholesale Beer Corp., 75 A.D.3d 489, 490; see
Sehgal v www.nyairportsbus.com, Inc., 100 A.D.3d 860;
Briceno v Milbry, 16 A.D.3d 448).
motion for summary judgment, the plaintiff demonstrated his
prima facie entitlement to judgment as a matter of law on the
issue of liability by demonstrating that his vehicle was
stopped when it was struck in the rear by the defendant's
vehicle (see e.g. Edgerton v City of New York, 160
A.D.3d 809). However, the defendant raised a triable issue of
fact as to the existence of a nonnegligent explanation;
namely, an unavoidable skidding on a snow-covered road
(see DeLouise v S.K.I. Wholesale Beer Corp., 75
A.D.3d at 490). Accordingly, we agree with the Supreme
Court's denial of the plaintiff's motion for summary
judgment on the issue of liability.
motion for judgment as a matter of law pursuant to CPLR 4401
or 4404 may be granted only when the trial court determines
that, upon the evidence presented, there is no valid line of
reasoning and permissible inferences which could possibly
lead rational persons to the conclusion reached by the jury
upon the evidence presented at trial, and no rational process
by which the jury could find in favor of the nonmoving party
(see Cohen v Hallmark Cards, 45 N.Y.2d 493, 499;
Weg v Kaufman, 159 A.D.3d 774; Nicastro v
Park, 113 A.D.2d 129, 132).
in light of the defendant's testimony regarding his speed
and distance from the plaintiffs vehicle just before the
collision and the testimony that he immediately applied the
brakes when the plaintiff's brake lights illuminated but
nonetheless was caused to skid by snowy road conditions,
there was a valid line of reasoning and permissible
inferences by which the jury could reach the conclusion that
the defendant was not at fault in the happening of the
accident (see Simpson v Eastman, 300 A.D.2d 647,
648; Artis v Jamaica Buses, 262 A.D.2d 511, 512).
Accordingly, we agree with the Supreme Court's denial of
the plaintiffs motion pursuant to CPLR 4404(a) to set aside
the verdict and for judgment as a matter of law.
plaintiff's remaining contentions are without merit.
LEVENTHAL, JP, SGROI, HINDS-RADIX and ...