Opinion
06-22-2016
Maegan LUTZ, respondent, v. Daniel C. DEFABIO, et al., appellants.
Karen L. Lawrence (Sweetbaum & Sweetbaum, Lake Success, NY [Marshall D. Sweetbaum ], of counsel), for appellants. Theodore A. Naima, P.C., Garden City, NY (Maximillian M. Schwarz of counsel), for respondent.
Karen L. Lawrence (Sweetbaum & Sweetbaum, Lake Success, NY [Marshall D. Sweetbaum ], of counsel), for appellants.
Theodore A. Naima, P.C., Garden City, NY (Maximillian M. Schwarz of counsel), for respondent.
Opinion 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 October 1, 2015, which granted the plaintiff's motion for summary judgment on the issue of liability.
ORDERED that the order is reversed, on the law, with costs, and the plaintiff's motion for summary judgment on the issue of liability is denied. 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 ; Phillip v. D&D Carting Co., Inc., 136 A.D.3d 18, 22, 22 N.Y.S.3d 75 ; 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 ; Adams v. Bruno, 124 A.D.3d 566, 567, 1 N.Y.S.3d 280 ). Here, in support of her motion for summary judgment, the plaintiff submitted her affidavit in which she averred that, while stopped for a red light on Park Avenue at its intersection with North Woodhull Road in Huntington, her vehicle was struck in the rear by the defendants' vehicle. This affidavit was sufficient to establish the plaintiff's prima facie entitlement to judgment as a matter of law, as it demonstrated that she was not comparatively negligent in the happening of the subject accident and established a prima facie case of negligence against the defendants, requiring them to come forward with a nonnegligent explanation for the rear-end collision with her vehicle (see Cortese v. Pobejimov, 136 A.D.3d 635, 24 N.Y.S.3d 405 ; Phillip v. D&D Carting Co., Inc., 136 A.D.3d at 23, 22 N.Y.S.3d 75 ; Sokolowska v. Song, 123 A.D.3d 1004, 1005, 999 N.Y.S.2d 847 ; Lisetskiy v. Weiss, 123 A.D.3d 775, 777, 999 N.Y.S.2d 83 ; Gallo v. Jairath, 122 A.D.3d 795, 797, 996 N.Y.S.2d 682 ; Cajas–Romero v. Ward, 106 A.D.3d 850, 851–852, 965 N.Y.S.2d 559 ; Ramos v. TC Paratransit, 96 A.D.3d 924, 925, 946 N.Y.S.2d 644 ).
In opposition to the plaintiff's prima facie showing, the defendants raised a triable issue of fact by providing a nonnegligent explanation for the rear-end collision. The affidavit of the driver of the defendants' vehicle, the defendant Daniel C. Defabio, averred that an unidentified vehicle struck his vehicle in the rear, causing his vehicle to move forward and strike the rear of the plaintiff's vehicle (see Kuris v. El Sol Contr. & Constr. Corp., 116 A.D.3d 675, 983 N.Y.S.2d 580 ; Katz v. Masada II
Car & Limo Serv., Inc., 43 A.D.3d 876, 841 N.Y.S.2d 370 ). Accordingly, the Supreme Court should have denied the plaintiff's motion for summary judgment on the issue of liability.
RIVERA, J.P., COHEN, MALTESE and LaSALLE, JJ., concur.