CACACE v. DiSTEFANO (2000)

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Floyd, J.), entered January 31, 2000, which denied her motion for partial summary judgment on the issue of liability.

ORDERED that the order is reversed, on the law, with costs, the motion is granted, and the matter is remitted to the Supreme Court, Suffolk County, for a trial on the issue of damages.

 A rear-end collision with a stopped automobile establishes a prima facie case of negligence on the part of the operator of the moving vehicle, and imposes a duty on that operator to explain how the accident occurred (see, Tricoli v. Malik, 268 A.D.2d 469, 701 N.Y.S.2d 644;  Mendiolaza v. Novinski, 268 A.D.2d 462, 703 N.Y.S.2d 49;  Campanella v. Moore, 266 A.D.2d 423, 699 N.Y.S.2d 76).   The operator of the moving vehicle is required to rebut the inference of negligence created by an unexplained rear-end collision (see, Pfaffenbach v. White Plains Express Corp., 17 N.Y.2d 132, 135, 269 N.Y.S.2d 115, 216 N.E.2d 324;  Leal v. Wolff, 224 A.D.2d 392, 638 N.Y.S.2d 110).   If that operator cannot come forward with any evidence to rebut the inference of negligence, the operator of the stopped vehicle is entitled to judgment as a matter of law (see, Leal v. Wolff, supra;  Starace v. Inner Circle Qonexions, 198 A.D.2d 493, 604 N.Y.S.2d 179).

 The plaintiff's statement in her affidavit that her car was at a complete stop when it was struck in the rear by the vehicle operated by the defendant George DiStefano made out a prima facie case that the defendant driver had been negligent.   The affidavit of the defendant driver, which stated that his vehicle struck the plaintiff's vehicle after an abrupt stop in heavy traffic, is insufficient to raise a triable issue of fact (see, Campanella v. Moore, 266 A.D.2d 423, 699 N.Y.S.2d 76;  Sekuler v. Limnos Taxi, 264 A.D.2d 389, 694 N.Y.S.2d 100;  Centeno v. Goldstein, 261 A.D.2d 566, 691 N.Y.S.2d 88;  Escobar v. Rodriguez, 243 A.D.2d 676, 664 N.Y.S.2d 568;  Hurley v. Cavitolo, 239 A.D.2d 559, 658 N.Y.S.2d 90).

MEMORANDUM BY THE COURT.