Opinion
2003-03147.
Decided April 26, 2004.
In an action to recover damages for personal injuries, etc., the defendants New York City Transit Authority and Colin Thorne appeal from an order of the Supreme Court, Kings County (Hutcherson, J.), dated January 21, 2003, which denied their motion for summary judgment dismissing the complaint insofar as asserted against them.
Wallace D. Gossett, Brooklyn, N.Y. (Anita Isola of counsel), for appellants.
Kelner and Kelner, New York, N.Y. (Gail S. Kelner and Todd J. Strier of counsel), for respondent.
Before: GABRIEL M. KRAUSMAN, J.P., THOMAS A. ADAMS, BARRY A. COZIER, REINALDO E. RIVERA, JJ.
DECISION ORDER
ORDERED that the order is affirmed, with costs.
Generally, a rear-end collision with a stopped or stopping automobile establishes a prima facie case of negligence on the part of the operator of the moving vehicle and imposes a duty on the operator of the moving vehicle to explain how the accident occurred ( see Shamah v. Richmond County Ambulance Serv., 279 A.D.2d 564; Power v. Hupart, 260 A.D.2d 458; Leal v. Wolff, 224 A.D.2d 392; Barile v. Lazzarini, 222 A.D.2d 635). However, here, the Supreme Court properly denied the motion of the defendants New York City Transit Authority and Colin Thorne for summary judgment insofar as asserted against them since triable issues of fact exist as to whether Thorne, the driver of the vehicle which was struck in the rear, contributed to the accident ( see Chepel v. Meyers, 306 A.D.2d 235; Rosa v. Colonial Tr., 276 A.D.2d 781; Gildersleeve v. Leo, 274 A.D.2d 547; Martin v. Pullafico, 272 A.D.2d 305; Maschka v. Newman, 262 A.D.2d 615; Niemiec v. Jones, 237 A.D.2d 267; Migdol v. Striker, 215 A.D.2d 358; DeCosmo v. Hulse, 204 A.D.2d 953).
KRAUSMAN, J.P., ADAMS, COZIER and RIVERA, JJ., concur.