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IN THIS REAR-END COLLISION CASE, THE ALLEGATION PLAINTIFF STOPPED SUDDENLY WAS NOT SUFFICIENT TO RAISE A QUESTION OF FACT AND DID NOT PRECLUDE THE DISMISSAL OF THE COMPARATIVE-NEGLIGENCE AFFIRMATIVE DEFENSE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined plaintiff was entitled to summary judgment in this rear-end collision case. Defendant’s allegation plaintiff stopped suddenly is not sufficient to raise a question of fact and will not support a comparative-negligence affirmative defense:

… [T]the plaintiff established his prima facie entitlement to judgment as a matter of law through the submission of his own affidavit, in which he averred that his vehicle was slowing due to traffic when it was struck in the rear by the defendant’s vehicle … . The plaintiff also established his prima facie entitlement to judgment as a matter of law dismissing the defendant’s third affirmative defense, which alleged comparative fault, by demonstrating that he was not negligent in the happening of the accident … .. In opposition to the plaintiff’s prima facie showings, the defendant failed to raise a triable issue of fact. Contrary to the defendant’s contention, his claim that the plaintiff made a sudden stop, standing alone, was insufficient to raise a triable issue of fact as to whether the plaintiff negligently contributed to the accident under the circumstances of this case … . Mahmud v Feng Ouyang, 2022 NY Slip Op 05081, Second Dept 8-31-22

Practice Point: In this rear-end collision case, defendant’s allegation plaintiff stopped suddenly was not enough to raise a question of fact and did not preclude the dismissal of the comparative-negligence affirmative defense.

 

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