Opinion
2005-1099 QC.
Decided May 25, 2006.
Appeal from an order of the Civil Court of the City of New York, Queens County (Johnny Lee Baynes, J.), entered May 17, 2005. The order granted defendants' motion for summary judgment and denied plaintiff's cross motion for summary judgment on the issue of liability.
Order reversed without costs, defendants' motion for summary judgment denied and plaintiff's cross motion for summary judgment on the issue of liability granted.
PRESENT: PESCE, P.J., RIOS and BELEN, JJ.
The defendants moved for summary judgment on the ground that plaintiff did not sustain a serious injury pursuant to Insurance Law § 5102 (d). Despite the conclusion of one of the defendants' examining physicians that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102 (d), he found various limitations of motion to plaintiff's lumbar spine, hip and leg which raised an issue of fact as to whether plaintiff suffered a serious injury ( see Tchjevskaia v. Chase, 15 AD3d 389; Marquez v. Oballe, 14 AD3d 667). Under the circumstances, defendants' motion should have been denied as they failed to meet their initial burden of establishing prima facie entitlement to judgment as a matter of law. Accordingly, we need not consider the sufficiency of plaintiff's opposition papers ( see Torres v. Safety Cab Corp., 25 AD3d 548; Barrett v. Jeannot, 18 AD3d 679).
Plaintiff's cross motion for summary judgment on the issue of liability should have been granted. It is well settled that a rear-end collision with a stopped vehicle establishes a prima facie case of negligence on the part of the driver of the rear vehicle ( Baron v. Murray, 268 AD2d 495). The presumption of negligence imposes a duty of explanation with respect to the operation of the rear vehicle ( Levine v. Taylor, 268 AD2d 566). In order to rebut the presumption, the driver of the rear vehicle must submit a nonnegligent explanation, in evidentiary form, for the collision ( Leal v. Wolff, 224 AD2d 392). Thus, defendant driver's failure to submit her own sworn attestations in opposition to the cross motion, when she would naturally be the party in possession of the relevant knowledge, requires the granting of plaintiff's cross motion on the issue of liability ( see Johnson v. Phillips, 261 AD2d 269).
Pesce, P.J., Rios and Belen, JJ., concur.