FELICIANO v. KRYNICKA

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Supreme Court, Appellate Term, New York.

Luciano FELICIANO, Appellant, v. Maria KRYNICKA et al., Respondents.

Decided: October 19, 2001

Present:  PATTERSON, J.P., GOLIA and RIOS, JJ. Taller & Wizman, P. C., Forest Hills (Y. David Taller and Boris Lyakhovsky of counsel), for appellant. Robert P. Tusa and Sweetbaum & Sweetbaum, Lake Success (Marshall D. Sweetbaum of counsel), for respondents.

Order unanimously affirmed without costs.

 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 operator of the moving vehicle, and imposes a duty of explanation on said operator (see, Tricoli v. Malik, 268 A.D.2d 469, 701 N.Y.S.2d 644;  Maschka v. Newman, 262 A.D.2d 615, 692 N.Y.S.2d 472;  Leal v. Wolff, 224 A.D.2d 392, 638 N.Y.S.2d 110).   In the absence of an explanation rebutting the inference of negligence, summary judgment may properly be awarded to plaintiff as a matter of law (see, Leal v. Wolff, supra ).

Plaintiff has established a prima facie case by the submission of an affidavit wherein he alleged that at the time the impact occurred, his vehicle was at a complete stop for approximately 25 seconds.   In opposition, defendants submitted an attorney's affirmation together with two Reports of Motor Vehicle Accident, one signed by plaintiff, and the other by defendant Osiozko.   Both reports indicated a three car chain collision, involving defendant Osiozko's vehicle which was struck by a third vehicle from the rear.

 Defendant's unsworn Report of Motor Vehicle Accident was improperly considered in opposition to plaintiff's motion (see, Morissaint v. Raemar Corp., 271 A.D.2d 586, 706 N.Y.S.2d 165;  Hegy v. Coller, 262 A.D.2d 606, 692 N.Y.S.2d 463;  Johnson v. Phillips, 261 A.D.2d 269, 690 N.Y.S.2d 545;  Ribowsky v. Kashinsky, 234 A.D.2d 353, 651 N.Y.S.2d 886).   Defendants, however, could properly rely on the accident report signed by plaintiff (cf., Torres v. Micheletti, 208 A.D.2d 519, 616 N.Y.S.2d 1006;  Pagano v. Kingsbury, 182 A.D.2d 268, 587 N.Y.S.2d 692), which sufficiently raises issues of fact precluding summary judgment.

MEMORANDUM.