Opinion
2017–09024 Index No. 600710/15
09-11-2019
Jeffrey M. ROSENBLUM, et al., Appellants, v. Roni J. SCHLOSS, et al., Respondents.
Stephen P. Haber, White Plains, NY, for appellants. Andrea G. Sawyers, Melville, N.Y. (Jennifer M. Belk of counsel), for respondents.
Stephen P. Haber, White Plains, NY, for appellants.
Andrea G. Sawyers, Melville, N.Y. (Jennifer M. Belk of counsel), for respondents.
CHERYL E. CHAMBERS, J.P., HECTOR D. LASALLE, ANGELA G. IANNACCI, LINDA CHRISTOPHER, JJ.
DECISION & ORDER In an action, inter alia, to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Nassau County (Arthur M. Diamond, J.), entered July 26, 2017. The order granted the defendants' motion for summary judgment dismissing the complaint on the ground that the plaintiff Jeffrey M. Rosenblum did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident, and denied the plaintiffs' cross motion for summary judgment on the issue of liability.
ORDERED that the order is reversed, on the law, with costs, the defendants' motion for summary judgment dismissing the complaint is denied, and the plaintiffs' cross motion for summary judgment on the issue of liability is granted. The plaintiff Jeffrey M. Rosenblum (hereinafter the injured plaintiff), and his wife suing derivatively, commenced this action to recover damages for personal injuries the injured plaintiff allegedly sustained when a vehicle he was driving was struck in the rear while stopped at a red light by a vehicle owned by the defendant Steven J. Schloss and driven by the defendant Roni J. Schloss. The defendants moved for summary judgment dismissing the complaint on the ground that the injured plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident. The plaintiffs opposed the defendants' motion and cross-moved for summary judgment on the issue of liability. By order entered July 26, 2017, the Supreme Court granted the defendants' motion and denied the plaintiffs' cross motion. The plaintiffs appeal.
The defendants failed to meet their prima facie burden of showing that the injured plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v. Avis Rent A Car Sys. , 98 N.Y.2d 345, 746 N.Y.S.2d 865, 774 N.E.2d 1197 ; Gaddy v. Eyler , 79 N.Y.2d 955, 956–957, 582 N.Y.S.2d 990, 591 N.E.2d 1176 ). The papers submitted by the defendants failed to adequately address the injured plaintiff's contention, set forth in the bill of particulars, that he sustained a serious injury under the 90/180–day category of Insurance Law § 5102(d) (see Gentry v. Mean , 166 A.D.3d 583, 86 N.Y.S.3d 624 ; Espinal v. Shortis , 164 A.D.3d 1217, 81 N.Y.S.3d 564 ; Alperin v. Herwerth , 162 A.D.3d 832, 833, 75 N.Y.S.3d 264 ; Reynolds v. Wai Sang Leung , 78 A.D.3d 919, 920, 911 N.Y.S.2d 431 ). Since the defendants failed to meet their prima facie burden, it is unnecessary to determine whether the papers submitted in opposition were sufficient to raise a triable issue of fact (see Alperin v. Herwerth , 162 A.D.3d at 833, 75 N.Y.S.3d 264 ; Hughes v. Cai , 31 A.D.3d 385, 385–386, 818 N.Y.S.2d 538 ).
"A rear-end collision with a stopped or stopping vehicle creates a prima facie case of negligence with respect to the operator of the moving vehicle and imposes a duty on the operator to rebut the inference of negligence by providing a non-negligent explanation for the collision" ( Zdenek v. Safety Consultants, Inc. , 63 A.D.3d 918, 918, 883 N.Y.S.2d 57 ; see Robayo v. Aghaabdul , 109 A.D.3d 892, 971 N.Y.S.2d 317 ; Jumandeo v. Franks , 56 A.D.3d 614, 867 N.Y.S.2d 541 ; Arias v. Rosario , 52 A.D.3d 551, 552, 860 N.Y.S.2d 168 ; Hakakian v. McCabe , 38 A.D.3d 493, 833 N.Y.S.2d 106 ). Here, the plaintiffs established their prima facie entitlement to judgment as a matter of law on the issue of liability through the injured plaintiff's deposition testimony that his vehicle was stopped at a red light when it was struck in the rear by the defendants' vehicle (see Sayyed v. Murray , 109 A.D.3d 464, 465, 970 N.Y.S.2d 279 ). The defendants did not raise a triable issue of fact in response.
Accordingly, the Supreme Court should have denied the defendants' motion for summary judgment dismissing the complaint and granted the plaintiffs' cross motion for summary judgment on the issue of liability.
CHAMBERS, J.P., LASALLE, IANNACCI and CHRISTOPHER, JJ., concur.