You are here: / / AN AFFIDAVIT FROM A WITNESS TO THIS REAR-END TRAFFIC ACCIDENT STATING THAT...
,

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.

 

You might also like
Condition Which Resulted in Plaintiff’s Injury Was Not the Cause of the Injury
Amendment of Notice of Claim Including Substantive Changes to the Facts and New Theories of Liability Should Not Have Been Allowed—Original Notice of Claim Inadequate
[Harmless] Error to Deny Defense a Hearing to Determine Admissibility of Testimony of Private Investigator About What Could Be Seen from a Certain Vantage Point (Calling Into Question Testimony Identifying the Defendant)
Abutting Landowner Not Responsible for Condition of Sidewalk Tree Well; Open and Obvious Condition Relates Only to Comparative Negligence
STRIKING A PEDESTRIAN IS NEGLIGENCE PER SE; FAILING TO SEE WHAT THERE IS TO SEE IS NEGLIGENCE; ANY COMPARATIVE NEGLIGENCE ON PLAINTIFF’S PART IS NOT TO BE CONSIDERED; PLAINTIFF PEDESTRIAN’S MOTION FOR SUMMARY JUDGMENT IN THIS TRAFFIC ACCIDENT CASE SHOULD HAVE BEEN GRANTED (SECOND DEPT).
NEW YORK WOULD REMAIN “HOME STATE” FOR A CUSTODY MATTER IF FATHER WRONGFULLY PREVENTED CHILDREN FROM RETURNING TO NEW YORK FROM BANGLADESH IN THE SIX MONTHS BEFORE THE FILING OF THE PETITION.
QUESTION OF FACT WHETHER THE SCHOOL DISTRICT CREATED OR EXACERBATED THE ICE CONDITION IN THE PARKING LOT AND WHETHER THE SCHOOL DISTRICT HAD CONSTRUCTIVE NOTICE OF THE CONDITION, SCHOOL’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE PROPERLY DENIED (SECOND DEPT).
HERE THE VICTIMLESS CRIME DID NOT CONSTITUTE “EXTRAORDINARY CIRCUMSTANCES” WITHIN THE MEANING OF THE “RAISE THE AGE” LEGISLATION; THE PEOPLE’S MOTION TO PREVENT THE REMOVAL OF THE ADOLESCENT OFFENDER’S CASE FROM THE YOUTH PART OF SUPREME COURT TO FAMILY COURT SHOULD NOT HAVE BEEN GRANTED (SECOND DEPT). ​

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

A JUDGE HAS DISCRETION TO DENY A MOTION FOR A DEFAULT JUDGMENT ON THE GROUND... QUESTION OF FACT WHETHER THE POLICE OFFICER ACTED IN RECKLESS DISREGARD FOR...