FRANKLIN v. GUYS FROM LONG POND INC (2008)

In an action to recover damages for personal injuries, etc., the defendants appeal from an order of the Supreme Court, Westchester County (Nastasi, J.), entered June 18, 2007, which denied their motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The plaintiff Sean Franklin was injured when his vehicle struck the right rear side of a disabled truck owned by the defendant 2 Guys from Long Pond, Inc., and operated by the defendant Michael Verbovsky, which was stopped in the southbound left lane of the Tappan Zee Bridge at around 5:00 A.M. on December 2, 2005.   Verbovsky experienced a sudden emergency when his steering wheel became inoperable as he was driving in the southbound right lane, causing the truck to veer to the left.   After bringing the truck to a stop in the left lane of the highway, Verbovsky activated his emergency flashers, exited the truck, and placed three reflective triangles behind the truck to warn oncoming motorists.

The injured plaintiff commenced this action to recover damages for the injuries he sustained in the accident, and his wife asserts a derivative claim.   Prior to the completion of discovery, the defendants moved for summary judgment dismissing the complaint on the ground, inter alia, that there was no evidence of their negligence.   The Supreme Court denied the motion, holding the injured plaintiff, who suffered from amnesia as a result of the accident, to a lesser standard of proof, and finding the existence of issues of fact.   We affirm.

 A rear-end collision with a lawfully stopped vehicle creates a prima facie case of negligence with respect to the operator of the moving vehicle and requires the operator of the moving vehicle to provide a non-negligent explanation for the collision (see Gregson v. Terry, 35 A.D.3d 358, 827 N.Y.S.2d 181;  Carhuayano v. J & R Hacking, 28 A.D.3d 413, 813 N.Y.S.2d 162).   Viewing the evidence in the light most favorable to the plaintiffs, affording them the benefit of every favorable inference (see Sampino v. Crescent Assoc., LLC, 34 A.D.3d 779, 825 N.Y.S.2d 135), and applying the Noseworthy doctrine (see Noseworthy v. City of New York, 298 N.Y. 76, 80 N.E.2d 744) to hold the amnesiac plaintiff to a lesser standard of proof, we find that, in response to the defendants' prima facie showing of their entitlement to judgment as a matter of law, the plaintiffs raised a triable issue of fact as to whether the defendants violated Vehicle and Traffic Law § 375(17) and 49 CFR §§ 392.22 and 393.95 when Verbovsky failed to set the reflective triangles in place at the required distance from the truck (see Tepoz v. Sosa, 241 A.D.2d 449, 663 N.Y.S.2d 831;  Goode v. Meyn, 165 A.D.2d 436, 568 N.Y.S.2d 472).   To the extent that, as the defendants assert, some of the evidence submitted by the plaintiffs in opposition to the motion was not in admissible form, nonetheless, it was properly considered in opposition to the motion for summary judgment which was made before the completion of discovery (see Guzman v. Strab Constr. Corp., 228 A.D.2d 645, 645 N.Y.S.2d 318;  cf. Hernandez v. City of New York, 35 A.D.3d 812, 827 N.Y.S.2d 279).

The defendants' remaining contentions are without merit.