HERDENDORF v. POLINO (2007)

 Plaintiffs commenced this action seeking damages for injuries allegedly sustained by Dennis P. Herdendorf (plaintiff) when his vehicle was rear-ended by a vehicle driven by defendant.  We reject defendant's contention that Supreme Court erred in granting those parts of plaintiffs' motion seeking partial summary judgment on the issue of negligence and dismissal of the affirmative defense concerning plaintiff's alleged culpable conduct.  “It is well established that a rear-end collision with a stopped vehicle establishes a prima facie case of negligence on the part of the driver of the rear vehicle ․ The presumption of negligence imposes a duty of explanation with respect to the operation of the rear vehicle” (Pitchure v. Kandefer Plumbing & Heating, 273 A.D.2d 790, 790, 710 N.Y.S.2d 259;  see Jones v. Egan, 252 A.D.2d 909, 911, 676 N.Y.S.2d 305).  In support of their motion, plaintiffs submitted the deposition testimony of plaintiff establishing that his stopped vehicle was rear-ended by defendant's vehicle.  Although defendant correctly notes that “[a] nonnegligent explanation for the collision, such as mechanical failure or the sudden and abrupt stop of the vehicle ahead, is sufficient to overcome the inference of negligence and preclude an award of summary judgment” (Rodriguez–Johnson v. Hunt, 279 A.D.2d 781, 782, 718 N.Y.S.2d 501), defendant presented no such explanation here.  “ ‘As it can easily be anticipated that cars up ahead will make frequent stops in rush hour traffic, “[d]efendant driver's failure to anticipate and react to the slow and cautious movement of plaintiff's vehicle” is not an adequate, nonnegligent explanation for the accident’ ” (Ruzycki v. Baker, 301 A.D.2d 48, 50, 750 N.Y.S.2d 680), particularly in light of the deposition testimony of defendant establishing that she could not see the traffic signal or the movement of traffic in front of plaintiff's vehicle.

We have considered defendant's remaining contentions and conclude that they are without merit.

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: