DIAMOND v. COMINS (2021)

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Westchester County (Charles D. Wood, J.), dated November 4, 2019.  The order, insofar as appealed from, denied those branches of the plaintiff's motion which were for summary judgment on the issue of liability insofar as asserted against the defendants Justin K. Comins and Northline Utilities, LLC, and dismissing their first affirmative defense, alleging comparative negligence.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and those branches of the plaintiff's motion which were for summary judgment on the issue of liability insofar as asserted against the defendants Justin K. Comins and Northline Utilities, LLC, and dismissing their first affirmative defense, alleging comparative negligence, are granted.

On June 30, 2017, at about 11:20 a.m., the plaintiff's vehicle was struck in the rear by a vehicle operated by the defendant Justin K. Comins, in Westchester County.  Comins' vehicle was leased by his employer, the defendant Northline Utilities, LLC (hereinafter Northline Utilities), from the defendant Global Rental Company, Inc. The plaintiff subsequently commenced this action against the defendants.  The Supreme Court, inter alia, denied, as premature, those branches of the plaintiff's motion which were for summary judgment on the issue of liability insofar as asserted against Comins and Northline Utilities and dismissing their first affirmative defense, alleging comparative negligence.  The plaintiff appeals.

“A driver of a vehicle approaching another vehicle from the rear is required to maintain a reasonably safe distance and rate of speed under the prevailing conditions to avoid colliding with the other vehicle” (Nsiah–Ababio v. Hunter, 78 A.D.3d 672, 672, 913 N.Y.S.2d 659;  see Arslan v. Costello, 164 A.D.3d 1408, 1409, 84 N.Y.S.3d 229).  A rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the operator of the rear vehicle, thereby requiring that operator to rebut the inference of negligence by providing a nonnegligent explanation for the collision (see Tutrani v. County of Suffolk, 10 N.Y.3d 906, 861 N.Y.S.2d 610, 891 N.E.2d 726;  Tsyganash v. Auto Mall Fleet Mgt., Inc., 163 A.D.3d 1033, 1034, 83 N.Y.S.3d 74;  Bene v. Dalessio, 135 A.D.3d 679, 22 N.Y.S.3d 237).  To be entitled to summary judgment on the issue of a defendant's liability, a plaintiff does not bear the burden of establishing the absence of his or her own comparative negligence (see Rodriguez v. City of New York, 31 N.Y.3d 312, 76 N.Y.S.3d 898, 101 N.E.3d 366;  Buchanan v. Keller, 169 A.D.3d 989, 991, 95 N.Y.S.3d 252).  Although a plaintiff is not required to establish his or her freedom from comparative negligence to be entitled to summary judgment on the issue of liability, the issue of a plaintiff's comparative negligence may be decided in the context of a summary judgment motion where, as here, the plaintiff seeks summary judgment dismissing an affirmative defense alleging comparative negligence (see Wray v. Galella, 172 A.D.3d 1446, 1447, 101 N.Y.S.3d 401;  Poon v. Nisanov, 162 A.D.3d 804, 808, 79 N.Y.S.3d 227).

Here, in support of her motion, the plaintiff submitted, among other things, her own affidavit, the affidavit of a nonparty witness, and a certified police accident report, which demonstrated, prima facie, that Comins negligently struck the plaintiff's stopped vehicle in the rear and that his negligence was a proximate cause of the accident (see Morgan v. Flippen, 173 A.D.3d 735, 736, 102 N.Y.S.3d 108;  Odetalla v. Rodriguez, 165 A.D.3d 826, 827, 85 N.Y.S.3d 560;  Arslan v. Costello, 164 A.D.3d at 1409, 84 N.Y.S.3d 229).  The plaintiff also demonstrated, prima facie, that she was not comparatively at fault in the happening of the accident (see Lopez v. Dobbins, 164 A.D.3d 776, 777, 79 N.Y.S.3d 566).

In opposition to the motion, the defendants submitted Comins' affidavit.  Contrary to the plaintiff's contention, Comins' affidavit did not contradict his prior statement to the police (see generally Valentin v. Parisio, 119 A.D.3d 854, 855, 989 N.Y.S.2d 621;  Jahangir v. Logan Bus Co., Inc., 89 A.D.3d 1064, 933 N.Y.S.2d 402;  Kievman v. Philip, 84 A.D.3d 1031, 1033, 924 N.Y.S.2d 112).  Nevertheless, it was insufficient to raise a triable issue of fact.

The plaintiff's motion was not premature (see CPLR 3212[f]).

Accordingly, the Supreme Court should have granted those branches of the plaintiff's motion which were for summary judgment on the issue of liability insofar as asserted against Comins and Northline Utilities and dismissing their first affirmative defense, alleging comparative negligence.

CHAMBERS, J.P., AUSTIN, MILLER and WOOTEN, JJ., concur.