COMMERCIAL UNION INSURANCE COMPANY v. GAROFALO CARTING INC (2001)

Order, Supreme Court, New York County (Richard Lowe, III, J.), entered on or about April 13, 2001, which, inter alia, granted the motion of plaintiffs in action no. 1 for summary judgment as to liability and denied defendants' motion for summary judgment dismissing the complaints in both actions, unanimously modified, on the law, and upon a search of the record, to grant plaintiffs in action No. 2 summary judgment as to liability, and otherwise affirmed, without costs.

The insurer subrogees were entitled to summary judgment on the issue of liability where defendants failed to come forward with competent evidence rebutting the presumption of negligence arising from the circumstance that defendant's employee backed his garbage truck into a house (see, Mitchell v. Gonzalez, 269 A.D.2d 250, 703 N.Y.S.2d 124;  Richmond Hill Sav. Bank v. Sisters of the Order of St. Dominic, 126 A.D.2d 627, 511 N.Y.S.2d 63).   Since defendants posited no medical explanation for defendant driver's conduct or inability to recall the accident, the motion court properly rejected their bare characterization of the accident as an unforeseeable and inexplicable occurrence (see, Chiaia v. Bostic, 279 A.D.2d 495, 719 N.Y.S.2d 277).