MEDINA ORTIZ v. SEDA (2018)

Order, Supreme Court, Bronx County (Howard H. Sherman, J.), entered July 21, 2017, which denied plaintiff's motion for partial summary judgment on the issue of liability, unanimously affirmed, without costs.

Plaintiff made a prima facie showing of her entitlement to summary judgment on the issue of liability through her affidavit averring that her car was stopped when it was hit in the rear by defendant's car (see e.g. Cruz v. Lise, 123 A.D.3d 514, 999 N.Y.S.2d 41 [1st Dept.2014] ).  The burden then shifted to defendant “to come forward with an adequate nonnegligent explanation for the accident” (Cabrera v. Rodriguez, 72 A.D.3d 553, 553, 900 N.Y.S.2d 29 [1st Dept. 2010] ).

Defendant met his burden through his affidavit averring that, after he exited onto Bruckner Boulevard, a service road, he saw plaintiff's car stopped in the middle lane, and then suddenly begin backing up, thereby “causing the accident.”  Viewing the facts in the light most favorable to defendant, and giving him the benefit of every available inference in his favor as the nonmoving party on this summary judgment motion (De Lourdes Torres v. Jones, 26 N.Y.3d 742, 763, 27 N.Y.S.3d 468, 47 N.E.3d 747 [2016] ), the record would permit a factfinder to conclude that plaintiff was negligent, and that her negligence was the sole or a proximate cause of the accident.  Thus, the court properly concluded that the parties' differing versions of how the accident occurred precluded summary judgment (see Susino v. Panzer, 127 A.D.3d 523, 524, 7 N.Y.S.3d 120 [1st Dept. 2015];  DeRosa v. Valentino, 14 A.D.3d 448, 788 N.Y.S.2d 369 [1st Dept. 2005] ).