Smiedalav.Hale

Appellate Division of the Supreme Court of New York, Fourth DepartmentNov 14, 2008
56 A.D.3d 1200 (N.Y. App. Div. 2008)
56 A.D.3d 1200867 N.Y.S.2d 3062008 N.Y. Slip Op. 8865

No. CA 08-00808.

November 14, 2008.

Appeal from an order of the Supreme Court, Niagara County (Frank Caruso, J.), entered July 25, 2007 in a personal injury action. The order denied the motion of defendant and third-party defendant for summary judgment.

LAW OFFICE OF EPSTEIN HARTFORD, WILLIAMSVILLE (JENNIFER V. SCHIFFMACHER OF COUNSEL), FOR DEFENDANT-APPELLANT AND THIRD-PARTY DEFENDANT-APPELLANT.

BOUVIER PARTNERSHIP, LLP, BUFFALO (NORMAN E.S. GREENE OF COUNSEL), FOR DEFENDANT-RESPONDENT AND THIRD-PARTY PLAINTIFF-RESPONDENT.

Before: Hurlbutt, J.P., Centra, Pine and Gorski, JJ.


It is hereby ordered that the order so appealed from is unanimously affirmed without costs.

Memorandum: Plaintiff commenced this action seeking damages for injuries he sustained when the stopped vehicle in which he was a passenger was rear-ended by a vehicle owned and driven by defendant and third-party plaintiff, Michael J. Hale. Supreme Court properly denied that part of the motion of defendant and third-party defendant, David A. Andrzejewski, the driver of the vehicle in which plaintiff was a passenger, for partial summary judgment determining that the negligence of Hale was the sole proximate cause of the accident. It is well established that, "[a]s a matter of law, a rear-end collision with a stopped [vehicle] establishes a prima facie case of negligence on the part of the driver of the rear vehicle" ( Diller v City of N.Y. Police Dept, 269 AD2d 143, 144; see Baron v Murray, 268 AD2d 495; see also Downs v Toth, 265 AD2d 925). In opposition to the motion, however, Hale submitted evidence that Andrzejewski stopped short and rear-ended the vehicle in front of him prior to being rear-ended by Hale. Thus, Hale raised a triable issue of fact whether Andrzejewski was also negligent ( see generally Zuckerman v City of New York, 49 NY2d 557, 562).