NIEDZWIECKI v. YEATES (2019)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously modified on the law by denying the cross motion in part with respect to the issues of negligence and proximate cause and as modified the order is affirmed without costs.

Memorandum: Plaintiff commenced this action seeking damages for injuries she sustained when the vehicle she was operating was rear-ended by a vehicle driven by Jarrett E. Yeates (defendant) and owned by defendants Gerard A. Yeates and Sally Ann Yeates.  Defendants appeal from an order that, inter alia, granted plaintiff's cross motion for partial summary judgment on the issues of negligence and proximate cause and dismissing four of defendants' affirmative defenses, including those based on the emergency doctrine and plaintiff's comparative negligence.

We agree with defendants that Supreme Court erred in granting the cross motion with respect to the issues of defendant's negligence and proximate cause, and we therefore modify the order accordingly.  “It is well settled 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, ․ [and, i]n order to rebut the presumption [of negligence], the driver of the rear vehicle must submit a non[ ]negligent explanation for the collision” (Tate v. Brown, 125 A.D.3d 1397, 1398, 3 N.Y.S.3d 826 [4th Dept. 2015] [internal quotation marks omitted]; see Macri v. Kotrys, 164 A.D.3d 1642, 1643, 84 N.Y.S.3d 293 [4th Dept. 2018]).  “One of several nonnegligent explanations for a rear-end collision is a sudden stop of the lead vehicle ․, and such an explanation is sufficient to overcome the inference of negligence and preclude an award of summary judgment” (Tate, 125 A.D.3d at 1398, 3 N.Y.S.3d 826 [internal quotation marks omitted]; see Macri, 164 A.D.3d at 1643, 84 N.Y.S.3d 293; Brooks v. High St. Professional Bldg., Inc., 34 A.D.3d 1265, 1266, 825 N.Y.S.2d 330 [4th Dept. 2006]).

Here, plaintiff failed to meet her initial burden on the cross motion inasmuch as she submitted the deposition testimony of defendant, in which he “ ‘provided a nonnegligent explanation for the collision,’ ” i.e., that the collision occurred when plaintiff stopped abruptly in front of his vehicle after a nonparty vehicle suddenly pulled in front of plaintiff's vehicle (Gardner v. Chester, 151 A.D.3d 1894, 1896, 58 N.Y.S.3d 793 [4th Dept. 2017]; see Rosario v. Swiatkowski, 101 A.D.3d 1609, 1609, 956 N.Y.S.2d 734 [4th Dept. 2012]).  Thus, plaintiff's own submissions raise “a triable issue of fact as to whether a nonnegligent explanation exists for the rear-end collision” (Bell v. Brown, 152 A.D.3d 1114, 1115, 61 N.Y.S.3d 167 [3d Dept. 2017]; see Rosario, 101 A.D.3d at 1609–1610, 956 N.Y.S.2d 734; see also Macri, 164 A.D.3d at 1643, 84 N.Y.S.3d 293; Tate, 125 A.D.3d at 1398–1399, 3 N.Y.S.3d 826).

We reject defendants' contention, however, that the court erred in granting the cross motion with respect to the affirmative defense based on the emergency doctrine.  Plaintiff met her initial burden of establishing that the emergency doctrine is not applicable to the facts of this case, and defendants failed to raise a triable issue of fact (see generally Shehab v. Powers, 150 A.D.3d 918, 920, 54 N.Y.S.3d 104 [2d Dept. 2017]).

Finally, we reject defendants' further contention that the court erred in granting the cross motion with respect to the affirmative defense of comparative negligence.  Plaintiff met her initial burden of establishing that she was free from comparative negligence by submitting evidence that she was required to stop short in front of defendant's vehicle in order to avoid colliding with the nonparty vehicle that suddenly pulled in front of her vehicle.  In opposition, defendants failed to submit “evidentiary proof in admissible form” sufficient to raise an issue of fact to defeat that part of the cross motion (Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980]).