Aetna Casualty & Surety Company, Intervenor, v. DEL FUOCO

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

Paula KASTANIS, et al., Respondents, Aetna Casualty & Surety Company, Intervenor, v. Michael DEL FUOCO, et al., Appellants.

Decided: July 28, 1997

Before RITTER, J.P., and SULLIVAN, SANTUCCI and McGINITY, JJ. Kornfeld, Rew, Newman & Ellsworth, Suffern (Robert J. Ellsworth, of counsel), for appellants. Silbowitz, Garafolo, Silbowitz & Schatz, New York City (Irwin M. Silbowitz and Brian J. Isaac, of counsel), for respondents.

In an action to recover damages for personal injuries, etc., the defendants appeal from an order of the Supreme Court, Dutchess County (Beisner, J.), entered June 21, 1996, which granted the motion of the plaintiffs Paula Kastanis and Athanasios Kastanis motion for partial summary judgment on the issue of liability.

ORDERED that the order is affirmed, with costs.

The Supreme Court correctly determined that the rear-end vehicular collision which occurred in this case created an inference of negligence and a prima facie case of liability against the operator of the tractor-trailer which struck the vehicle of the plaintiffs Paula Kastanis and Athanasios Kastanis, imposing a duty of explanation upon the operator of the tractor-trailer (see, Barile v. Lazzarini, 222 A.D.2d 635, 635 N.Y.S.2d 694;  Pincus v. Cohen, 198 A.D.2d 405, 604 N.Y.S.2d 139).   Inasmuch as the operator of the offending vehicle failed to come forward with an adequate, nonnegligent explanation (see, e.g., Gambino v. City of New York, 205 A.D.2d 583, 613 N.Y.S.2d 417), partial summary judgment was properly granted in favor of the plaintiffs Paula Kastanis and Athanasios Kastanis (see, Leal v. Wolff, 224 A.D.2d 392, 638 N.Y.S.2d 110;  Barile v. Lazzarini, supra).

MEMORANDUM BY THE COURT.

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