The plaintiff has moved for summary judgment on the issue of negligence and serious injury in this case involving a rear end collision. The plaintiff testified he was stopped at Wetzel Road in the Town of Clay when the vehicle owned by defendant CNY Star Construction and driven by defendant Shuba rear ended his vehicle. At his deposition, the plaintiff testified that he was stopped at a light at the intersection with Route 57 and was towards the end of the line of cars, in the right hand turn lane and was driving his truck, when his vehicle was hit by the dump truck driven by the defendant and his left shoulder hit the driver's side window. According to the plaintiff, he believed that the defendant's truck was not completely in the left lane that was to go straight through the intersection, at the time of the accident. The defendant testified that he was traveling down Wetzel Road toward the turn for his apartment, which is a turn off Wetzel just before the intersection with Route 57 when the collision occurred. As he drove on Wetzel Road, he noted plaintiff's truck was not completely in the right lane and that a portion of the vehicle remained in the middle lane, with plaintiff's vehicle being cocked sideways in the turn lane. [*2]

The law is well settled that a rear end collision with a stopped vehicle establishes a prima facie case of negligence on the part of the driver of the vehicle. See, Pitchure v. Kandefer Plumbing & Heating, 273 AD2d 790 (4th Dept. 2000). In order to rebut a prima facie showing of negligence, the driver of the rear vehicle must submit a non-negligent explanation for the collision. See, Ruzycki v. Baker, 301 AD2d 48 (4th Dept. 2002). The defendant has failed to offer a non-negligent explanation here and only testified that plaintiff's vehicle was not completely in its right turning lane at the time of collision. The defendant has only presented proof that the plaintiff's vehicle was stopped, which furnished the condition or occasion of the accident, but does not establish it was the proximate cause. See, Lechter v. Kelner, 40 AD3d 747 (2d Dept. 2007). Since the defendant has failed to offer a non-negligent explanation, plaintiff's motion for summary judgment on negligence is granted.

The plaintiff's motion for summary judgment on the issue of serious injury, however, is denied. The plaintiff alleges theories under Insurance Law §5102 that the injury to the plaintiff's back resulted in permanent consequential limitation of the use of a body function or system, significant limitation of use of a body function or system and that plaintiff had a medically determined injury or impairment of a nonpermanent nature which prevented him from performing substantially all of the material acts which constitute his usual and customary daily activities for not less than 90 days during the 180 days immediately following the occurrence of the injury or impairment. In support of his motion, the plaintiff offers the affidavit of Dr. Richard Distefano. There is nothing in the plaintiff's papers to support a summary judgment determination on the 90/180 category since no proof has been offered that the plaintiff's activities were sufficiently curtailed for at least 90 out of the first 180 days. See, Smith v. City of Syracuse, 2 AD3d 1340 (4th Dept. 2003). With respect to the remaining two categories, the Distefano affidavit is sufficient in providing a qualitative assessment which is supported by objective medical evidence of the plaintiff's condition and the physician's affidavit here is properly supported by the plaintiff's medical records. See,Howell v. Halloway, 17 AD3d 1117 (4th Dept. 2005). The burden therefore shifts to the defendant to raise an issue of fact with respect to these two categories. The defendant has done so through the affidavit of Dr. David Hootnick. Dr. Hootnick's affidavit notes that the plaintiff was involved in a motor vehicle accident in August of 1997, where he was diagnosed with acute low back pain. He further indicates that in September of 2002, three years before the subject accident, the plaintiff received treatment for lower back pain, where a neurosurgical evaluation was performed and the then treating physician noted that plaintiff had a history of 15 years of lower back pain after falling while in the service. In addition, according to Dr. Hootnick, a comparison of an MRI taken prior to the accident and the CT Scan taken after the accident showed no interim change in the severity of the degeneration. Dr Hootnick concluded that there was no causal relationship between plaintiff's alleged injury and the motor vehicle accident at issue and that no causal relationship existed between the accident and the surgery that was performed in February of 2006. Viewing the evidence in the light most favorable to the defendant as the non-moving party (see, Ward v. Edinburg Marina, 293 AD2d 887 (3d Dept. 2002)), it is clear that issues of fact exist as to whether the plaintiff sustained a serious injury.

NOW, therefore, for the foregoing reasons, it is

ORDERED, that the plaintiff's motion for summary judgment on the issue of negligence is granted, and it is further [*3]

ORDERED, that the plaintiff's motion for summary judgment on the issue of serious injury is denied.

ENTER

Dated: September 25, 2007

Syracuse, New York

DONALD A. GREENWOOD

Supreme Court Justice