ABRAMOV v. CAMPBELL

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Supreme Court, Appellate Division, Second Department, New York.

Mikhail ABRAMOV, et al., Respondents, v. Herman CAMPBELL, Appellant.

Decided: March 31, 2003

FRED T. SANTUCCI, J.P., NANCY E. SMITH, DANIEL F. LUCIANO and BARRY A. COZIER, JJ. Robert P. Tusa (Sweetbaum & Sweetbaum, Lake Success, N.Y. [Marshall D. Sweetbaum] of counsel), for appellant. Elliot Ifraimoff & Associates, P.C., Rego Park, N.Y. (David E. Waterbury of counsel), for respondents.

In an action to recover damages for personal injuries, etc., the defendant appeals from an order of the Supreme Court, Queens County (Glover, J.), dated October 24, 2002, which granted the plaintiffs' motion for summary judgment on the issue of liability.

ORDERED that the order is affirmed, with costs.

 When a defendant operates a vehicle that strikes another vehicle in the rear, the defendant is subject to a presumption that he or she was negligent in failing to keep a safe distance between the vehicles, although such presumption may be overcome by the presentation of evidence sufficient to rebut the inference of negligence (see Karakostas v. Avis Rent A Car Sys., 301 A.D.2d 632, 756 N.Y.S.2d 61;  Reed v. New York City Tr. Auth., 299 A.D.2d 330, 749 N.Y.S.2d 91;  Leal v. Wolff, 224 A.D.2d 392, 638 N.Y.S.2d 110).   Further, a question of fact as to whether a plaintiff-driver's comparative negligence may have contributed to an accident will preclude summary judgment on the issue of liability in favor of the plaintiff (see Bodner v. Greenwald, 296 A.D.2d 564, 745 N.Y.S.2d 711).   Here, in response to the plaintiffs' prima facie establishment of entitlement to judgment as a matter of law (see generally Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572), the defendant failed to raise a triable issue of fact that the injured plaintiff's operation of his vehicle contributed to the occurrence of the accident (see Davis v. Quinones, 295 A.D.2d 394, 743 N.Y.S.2d 171;  Reed v. New York City Tr. Auth. supra).   Accordingly, the Supreme Court properly granted the plaintiffs' motion for summary judgment on the issue of liability.

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