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PLAINTIFF PASSENGER’S MOTION FOR SUMMARY JUDGMENT IN THIS REAR-END COLLISION CASE SHOULD NOT HAVE BEEN GRANTED, DEFENDANT RAISED A QUESTION OF FACT ABOUT THE LEAD DRIVER’S COMPARATIVE NEGLIGENCE 2ND DEPT.

The Second Department, reversing Supreme Court, determined defendant raised a question of fact whether the driver of the car in which plaintiff was a passenger was comparatively negligent. Therefore plaintiff passenger’s summary judgment motion should not have been granted:

“To prevail on a motion for summary judgment on the issue of liability, a plaintiff must establish, prima facie, not only that the opposing party was negligent, but also that the plaintiff was free from comparative fault” … . Thus, “a plaintiff has a twofold burden that trial courts must bear in mind when determining motions for summary judgment, because more than one actor may be a proximate cause of a single accident” … . The issue of comparative fault is generally a question for the jury to decide … . In rear-end accident cases, just because a plaintiff is a passenger in the lead vehicle, the liability of the rear vehicle is not automatically established. Such a plaintiff moving for summary judgment on the issue of liability “must meet the twofold burden of establishing that he or she was free from comparative fault and was, instead, an innocent passenger, and, separately, that the operator of the rear vehicle was at fault. If the plaintiff fails to demonstrate, prima facie, that the operator of the offending vehicle was at fault, or if triable issues of fact are raised by the defendants in opposition, . . . summary judgment on the issue of liability must be denied, even if the moving plaintiff was an innocent passenger” …

Here, the injured plaintiff established her prima facie entitlement to judgment as a matter of law through the submission of her affidavit which demonstrated that she was not negligent in the happening of the accident, as she was an innocent passenger, and that the actions of the defendant driver, Welna, were the sole proximate cause of the accident… . However, in opposition, the defendants raised a triable issue of fact as to whether Nicole Ortiz [the lead driver] contributed to the happening of the accident by the submission of Welna’s affidavit, which alleged that she violated Vehicle and Traffic Law § 1163 by stopping abruptly in the intersection to turn left without signaling … . Ortiz v Welna, 2017 NY Slip Op 05744, 2nd Dept 7-19-17

NEGLIGENCE (TRAFFIC ACCIDENTS, PLAINTIFF PASSENGER’S MOTION FOR SUMMARY JUDGMENT IN THIS REAR-END COLLISION CASE SHOULD NOT HAVE BEEN GRANTED, DEFENDANT RAISED A QUESTION OF FACT ABOUT THE LEAD DRIVER’S COMPARATIVE NEGLIGENCE 2ND DEPT)/TRAFFIC ACCIDENTS, REAR END COLLISIONS, PLAINTIFF PASSENGER’S MOTION FOR SUMMARY JUDGMENT IN THIS REAR-END COLLISION CASE SHOULD NOT HAVE BEEN GRANTED, DEFENDANT RAISED A QUESTION OF FACT ABOUT THE LEAD DRIVER’S COMPARATIVE NEGLIGENCE 2ND DEPT)/COMPARATIVE NEGLIGENCE (REAR END COLLISIONS, PLAINTIFF PASSENGER’S MOTION FOR SUMMARY JUDGMENT IN THIS REAR-END COLLISION CASE SHOULD NOT HAVE BEEN GRANTED, DEFENDANT RAISED A QUESTION OF FACT ABOUT THE LEAD DRIVER’S COMPARATIVE NEGLIGENCE 2ND DEPT)/REAR END COLLISIONS (PLAINTIFF PASSENGER’S MOTION FOR SUMMARY JUDGMENT IN THIS REAR-END COLLISION CASE SHOULD NOT HAVE BEEN GRANTED, DEFENDANT RAISED A QUESTION OF FACT ABOUT THE LEAD DRIVER’S COMPARATIVE NEGLIGENCE 2ND DEPT)/VEHICLE AND TRAFFIC LAW (REAR END COLLISIONS, LEAD DRIVER’S ALLEGED FAILURE TO SIGNAL AND SUDDEN STOP RAISED A QUESTION OF FACT, PLAINTIFF PASSENGER’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED 2ND DEPT) 

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