Opinion
Submitted November 17, 1999
January 18, 2000
In an action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Nassau County (Dunne, J.), dated January 28, 1999, which, upon an order of the same court dated January 7, 1999, denying her motion to set aside the verdict pursuant to CPLR 4404(a) and for judgment as a matter of law, is in favor of the defendant and against her dismissing the complaint.
Hershman Leicher, P.C., New York, N.Y. (Michael L. Steindam of counsel), for appellant.
Lewis, Johs, Avallone, Bruno Kaufman (John M. Denby, East Setauket, N.Y., of counsel), for respondent.
WILLIAM C. THOMPSON, J.P., SONDRA MILLER, GABRIEL M. KRAUSMAN, ANITA R. FLORIO and ROBERT W. SCHMIDT, JJ.
DECISION ORDER
ORDERED that the judgment is reversed, on the law, with costs, the motion is granted, the order dated January 7, 1997 is vacated, and the matter is remitted to the Supreme Court, Nassau County, for a trial on the issue of damages.
A rear-end collision with a stopped automobile establishes a prima facie case of negligence on the part of the operator of the moving vehicle and imposes a duty on him or her to explain how the accident occurred (see, Tricoli v. Malik, 268 A.D.2d 469 [decided herewith]; Gambino v. City of New York, 205 A.D.2d 583 ). The operator of the moving vehicle is required to rebut the inference of negligence created by an unexplained rear-end collision (see, Pfaffenbach v. White Plains Express Corp., 17 N.Y.2d 132, 135 ; Tricoli v. Malik, supra), because he or she is in the best position to explain the cause of the collision (see, Carter v. Castle Elec. Contr. Co., 26 A.D.2d 83, 85 ). If the operator of the moving vehicle cannot come forward with any evidence to rebut the inference of negligence, the plaintiff may properly be awarded judgment as a matter of law (see, Starace v. Inner Circle Qonexions, 198 A.D.2d 493 ).
Under the circumstances of this case, the plaintiff established a prima facie case of negligence. Since the defendant was under a duty to maintain a safe distance between his car and the plaintiff's car (see, Vehicle and Traffic Law § 1129 Veh. Traf.[a]), his failure to do so, in the absence of a non-negligent explanation, constituted negligence as a matter of law. The defendant's own testimony, that he did not see the plaintiff's car until it had already stopped, cannot support his contention on appeal that the plaintiff stopped suddenly. In any event, even if the plaintiff did stop suddenly, this fact, standing alone, is insufficient to preclude judgment as a matter of law in favor of the plaintiff (see, Leal v. Wolff, 224 A.D.2d 392 ; Silberman v. Surrey Cadillac Limousine Serv., 109 A.D.2d 833 ).
THOMPSON, J.P., S. MILLER, KRAUSMAN, FLORIO, and SCHMIDT, JJ., concur.