AN AFFIDAVIT FROM A WITNESS TO THIS REAR-END TRAFFIC ACCIDENT STATING THAT PLAINTIFF WAS BACKING UP AT THE TIME DEFENDANT’S CAR STRUCK PLAINTIFF’S RAISED ONLY A QUESTION OF PLAINTIFF’S COMPARATIVE FAULT WHICH WILL NOT DEFEAT PLANTIFF’S MOTION FOR SUMMARY JUDGMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff’s motion for summary judgment in this rear-end traffic accident case should have been granted. The affidavit of a witness stating that plaintiff was backing up when defendant’s car struck it raised an issue of comparative negligence, which is no longer a bar to summary judgment:

“A driver of a vehicle approaching another vehicle from the rear is required to maintain a reasonably safe distance and rate of speed under the prevailing conditions to avoid colliding with the other vehicle” … . As such, “[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, thereby requiring that operator to rebut the inference of negligence by providing a non-negligent explanation for the collision” … . “A nonnegligent explanation includes, but is not limited to, sudden or unavoidable circumstances” … . “[V]ehicle stops which are foreseeable under the prevailing traffic conditions, even if sudden and frequent, must be anticipated by the driver who follows” … . “A plaintiff is no longer required to show freedom from comparative fault to establish her or his prima facie entitlement to judgment as a matter of law on the issue of liability”… .

… [T]he plaintiff submitted an affidavit in which he averred that his vehicle was at a full stop when it was struck in the rear by the defendants’ vehicle … . In opposition, the defendants failed to rebut the inference of negligence by providing a nonnegligent explanation for the collision … . The defendants submitted an affidavit … a witness to the accident … who stated that he saw the plaintiff’s vehicle backing up while the defendants’ vehicle was moving forward and, as a result, the front of the defendants’ vehicle made contact with the rear of the plaintiff’s vehicle. … [The]statement that the plaintiff’s vehicle was backing up … was insufficient to raise a triable issue of fact because that statement related only to the plaintiff’s comparative fault … . An v Abbate, 2023 NY Slip Op 00977, Second Dept 2-22-23

Same result (but no comparative negligence evidence) in another rear-end traffic accident case: Balgobin v McKenzie, 2023 NY Slip Op 00978, Second Dept 2-22-23

Practice Point: Here a witness to the rear-end traffic accident provided an affidavit stating plaintiff was backing up when defendant struck the rear of plaintiff’s car. The affidavit raised a question of plaintiff’s comparative fault which was not enough to defeat plaintiff’s motion for summary judgment.