LEVINE v. Sharon Cabasso, et al., third-party defendants-respondents.

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

Rimona LEVINE, et al., plaintiffs, v. Clyde TAYLOR, et al., defendants third-party plaintiffs-appellants; Sharon Cabasso, et al., third-party defendants-respondents.

Decided: January 31, 2000

CORNELIUS J. O'BRIEN, J.P., THOMAS R. SULLIVAN, GLORIA GOLDSTEIN, DANIEL F. LUCIANO and SANDRA J. FEUERSTEIN, JJ. Caulfield Law Office (Carol R. Finocchio, New York, N.Y. [Marie R. Hodukavich] of counsel), for defendants third-party plaintiffs-appellants. Bilello & Walisever, Woodbury, N.Y. (John A. Asta of counsel), for third-party defendants-respondents.

In an action to recover damages for personal injuries, etc., the defendants third-party plaintiffs appeal from an order and judgment (one paper) of the Supreme Court, Kings County (Rappaport, J.), dated March 24, 1999, which, inter alia, granted the motion of the third-party defendants for summary judgment dismissing the third-party complaint and all cross claims asserted against them.

ORDERED that the order and judgment is affirmed, with costs.

 It is undisputed that the vehicle operated by the third-party defendant Sharon Cabasso was struck in the rear by a vehicle operated by the plaintiff Rimona Levine, which was struck from behind by a vehicle operated by the defendant Clyde Taylor.   A rear-end collision is sufficient to create a prima facie case of liability and imposes a duty of explanation with respect to the operator of the offending vehicle (see, Pfaffenbach v. White Plains Express Corp., 17 N.Y.2d 132, 135, 269 N.Y.S.2d 115, 216 N.E.2d 324;  Gambino v. City of New York, 205 A.D.2d 583, 613 N.Y.S.2d 417).   Conclusory allegations in opposition do not rebut the inference of negligence created by the unexplained rear-end collision (see, Young v. City of New York, 113 A.D.2d 833, 834, 493 N.Y.S.2d 585).

In the case at bar, Taylor admitted that he did not see Levine's car strike Cabasso's car.   Yet, he told the police that Cabasso's car had stopped short.   Such speculation is insufficient to defeat a motion for summary judgment (see, Itingen v. Weinstein, 260 A.D.2d 440, 688 N.Y.S.2d 582).

 In any event, assuming that Taylor raised an issue of fact as to whether Cabasso stopped short before the impact, his testimony, to the effect that the accident was caused by Cabasso's sudden stop, was insufficient to rebut the presumption that he was negligent (see, Leal v. Wolff, 224 A.D.2d 392, 638 N.Y.S.2d 110;  Silberman v. Surrey Cadillac Limousine Serv., 109 A.D.2d 833, 486 N.Y.S.2d 357).   Accordingly, the Supreme Court properly granted the motion of the third-party defendants to dismiss the third-party complaint (see, Starace v. Inner Circle Qonexions, 198 A.D.2d 493, 604 N.Y.S.2d 179).


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