DICKIE v. PEI XIANG SHI

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

Marie DICKIE, Appellant, v. PEI XIANG SHI, et al., Respondents.

Decided: April 28, 2003

DAVID S. RITTER, J.P., SANDRA J. FEUERSTEIN, LEO F. McGINITY, SANDRA L. TOWNES and BARRY A. COZIER, JJ. Elovich & Adell, Long Beach, N.Y. (A. Trudy Adell, Mitchell Sommer, and Jason Greenberg of counsel), for appellant. Cheven, Keely & Hatzis (Jaffe & Nohavicka, New York, N.Y. [Richard W. Shin] of counsel), for respondents.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Nassau County (Jonas, J.), dated May 8, 2002, which denied her motion for summary judgment on the issue of liability, and granted the defendants' cross motion for summary judgment dismissing the complaint on the ground that she did not sustain a serious injury within the meaning of Insurance Law § 5102(d).

ORDERED that the order is reversed, on the law, with costs, the motion is granted, the cross motion is denied, the complaint is reinstated, and the matter is remitted to the Supreme Court, Nassau County, for a trial on the issue of damages.

 While the defendants established their prima facie entitlement to summary judgment by submitting evidence indicating that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) (see Kallicharan v. Sooknanan, 282 A.D.2d 573, 723 N.Y.S.2d 376;  Santoro v. Daniel, 276 A.D.2d 478, 713 N.Y.S.2d 699), the plaintiff met her burden of demonstrating an issue of fact as to whether she sustained a serious injury (see Toure v. Avis Rent A Car Sys., 98 N.Y.2d 345, 746 N.Y.S.2d 865, 774 N.E.2d 1197).

 In addition, we find that the plaintiff was entitled to summary judgment on the issue of liability.   A rear-end collision with a stopped vehicle establishes a prima facie case of negligence on the part of the operator of the offending vehicle and imposes a duty of explanation on that operator (see Sekuler v. Limnos Taxi, 264 A.D.2d 389, 694 N.Y.S.2d 100;  Bando-Twomey v. Richheimer, 229 A.D.2d 554, 646 N.Y.S.2d 155).   Here, the plaintiff established a prima facie case of negligence by submitting her own affidavit that her vehicle was struck from behind by the defendants' vehicle when her vehicle came to a stop at an intersection.   The defendants' explanation that the plaintiff's vehicle came to an abrupt or sudden stop in traffic is insufficient to rebut the inference of negligence (see e.g. Sekuler v. Limnos Taxi, supra;  Bando-Twomey v. Richheimer, supra;  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).

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