BARTON v. YOUMANS (2004)

Supreme Court, Appellate Division, Fourth Department, New York.

Thomas BARTON and Nancy Barton, Plaintiffs-Respondents, v. Edward YOUMANS, Defendant-Appellant.

Decided: December 30, 2004

PRESENT: PINE, J.P., SCUDDER, KEHOE, SMITH, AND LAWTON, JJ.

Burke, Albright, Harter & Reddy, LLP, Rochester (Robert J. Burke of Counsel), for Defendant-Appellant.

Plaintiffs commenced this action seeking damages for injuries sustained by Thomas Barton (plaintiff) when the vehicle that he was driving was rear-ended by a vehicle driven by defendant. Supreme Court properly granted plaintiffs' motion for partial summary judgment on negligence. Plaintiffs established their entitlement to judgment as a matter of law by submitting evidence that defendant's vehicle rear-ended plaintiff's stopped vehicle, and defendant failed to meet his burden of establishing a nonnegligent explanation for the collision sufficient to overcome the inference of negligence (see Ruzycki v. Baker, 301 A.D.2d 48, 49, 750 N.Y.S.2d 680). Although evidence of an abrupt stop can be sufficient to raise an issue of fact (see Tripp v. GELCO Corp., 260 A.D.2d 925, 926, 688 N.Y.S.2d 829), here plaintiff had to stop abruptly to yield to an emergency vehicle (see Vehicle and Traffic Law § 1144[a]; DiPaola v. Scherpich, 239 A.D.2d 459, 460, 657 N.Y.S.2d 883).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed with costs.

MEMORANDUM:

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