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DEFENDANT RAISED A QUESTION OF FACT ABOUT WHETHER THERE EXISTS A NONNEGLIGENT EXPLANATION FOR THIS REAR END COLLISION, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment in this rear end collision case should not have been granted. Although plaintiff made out a prima facie case (because there is no longer any need to demonstrate freedom from comparative fault in the motion papers), defendant alleged plaintiff suddenly changed lanes and stopped suddenly:

The plaintiff is no longer required to show freedom from comparative fault in order to establish his prima facie entitlement to judgment as a matter of law on the issue of liability… . A rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the operator of the rear vehicle … . However, the inference of negligence may be rebutted by evidence that the accident was caused by the lead vehicle abruptly changing lanes in front of the rear vehicle and then slowing down or coming to a sudden stop … .

Here, the plaintiff failed to establish his prima facie entitlement to judgment as a matter of law on the issue of liability. Although the plaintiff submitted evidence that his vehicle was struck in the rear by the defendants’ vehicle, he also submitted the deposition testimony of the defendant driver that the plaintiff’s vehicle changed lanes abruptly in front of defendants’ vehicle and then came to a sudden stop. Under these circumstances, the plaintiff’s submissions failed to eliminate triable issues of fact as to whether the defendant driver was negligent. The deposition testimony of the defendant driver, if true, would constitute a nonnegligent explanation for the rear-end collision into the plaintiff’s vehicle … . Any inconsistencies in the deposition testimony of the defendant driver, and the other evidence submitted in support of the motion, did not render the defendant driver’s deposition testimony incredible as a matter of law or unworthy of belief, but rather, raised issues of credibility to be resolved by the factfinder … . Merino v Tessel, 2018 NY Slip Op 07717, Second Dept 11-14-18

NEGLIGENCE (TRAFFIC ACCIDENTS, DEFENDANT RAISED A QUESTION OF FACT ABOUT WHETHER THERE EXISTS A NONNEGLIGENT EXPLANATION OF THIS REAR END COLLISION, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/TRAFFIC ACCIDENTS ( DEFENDANT RAISED A QUESTION OF FACT ABOUT WHETHER THERE EXISTS A NONNEGLIGENT EXPLANATION OF THIS REAR END COLLISION, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))/REAR END COLLISIONS (DEFENDANT RAISED A QUESTION OF FACT ABOUT WHETHER THERE EXISTS A NONNEGLIGENT EXPLANATION OF THIS REAR END COLLISION, PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT))

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