[*2]The following amends this Court's decision dated May 2, 2012 as follows:

In this negligence action, the plaintiff, Tiffany Jairala, seeks to recover damages for personal injuries she sustained as a result of a motor vehicle accident that occurred on June 23, 2009, between the motor vehicle owned by Carmen Jairala and operated by Joffrey Jairala and the truck owned by Reliable Trucking Express, Inc., and operated by defendant Luis Alvarez. Plaintiff was a front seat passenger in the Jairala vehicle. The accident took place on the northbound lanes of the Van Wyck Expressway near the Jamaica Avenue exit, Queens County, New York. At the time of the accident, the Jairala vehicle rear-ended the truck owned by Reliable Trucking when its driver stopped on the Van Wyck Expressway, allegedly as a result of being cut-off in traffic by a third vehicle which was changing lanes.

The plaintiff commenced this action by filing a summons and complaint on March 19, 2010. Issue was joined by service of Jairala's verified answer dated October 8, 2010 and Alvarez/Reliable's verified answer dated November 4, 2010. Defendants Alvarez and Reliable now move for an order pursuant to CPLR 3212(b), granting summary judgment on the issue of liability and dismissing the plaintiff's complaint against them on the ground that they bear no liability for the happening of the accident as their vehicle was hit in the rear by the Jairala vehicle and as such, they contend that the sole proximate cause of the accident was the negligence of Jairala.

In support of the motion, the defendants submit an affirmation from counsel, Mark A. Hanlon, Esq., a copy of the pleadings, copies of the transcripts of the plaintiff's deposition testimony and each of the defendant's deposition testimony; a copy of the police accident report (MV-104) and photographs purporting to show the damage to each vehicle.

Tiffany Jairala, age 18, a college student at Utah Valley University, testified at her examination before trial, taken on August 22, 2011, that on June 23, 2009, she was a front seat passenger in the vehicle being operated by her brother Joffrey Jairala. Her mother Carmen Jairala, his girlfriend and his infant daughter were also passengers in the vehicle. Joffrey had picked Tiffany and Carmen up at JFK Airport and they were heading to their home in New Jersey. Tiffany testified that as they were proceeding on the Van Wyck Expressway, her vehicle suddenly struck the rear of an 18-wheel truck that was stopped in front of them. She heard the brakes screeching immediately before the accident and she heard her brother say, "hold on." Plaintiff [*3]stated that she was not wearing a seatbelt at the time of the impact and her face was thrown against the dashboard. She sustained a fractured nose which required reconstructive surgery.

Joffrey Jairala, age 27, also testified at an examination before trial on August 22, 2011. He stated that on the date of the accident he was driving a car owned by his mother. He was traveling on the Van Wyck Expressway in the middle of three lanes of moving traffic. He stated that initially traffic was moving well but then he observed red brake lights in front of him and traffic began to slow down. When asked how the accident occurred, he stated that the truck in front of him just came to a stop. He couldn't tell the truck was braking as there were no lights, but he saw smoke come out of the truck's tires because be believed the truck locked it brakes. He told his passengers to brace themselves because he knew his vehicle was not going to stop in time. He testified that just before the impact he was traveling at 40 miles per hour in the middle lane. He stated that he was keeping a distance of 3 or 4 car lengths behind the truck, which he described as a white 18-wheeler. He stated that when the brakes on the truck locked, smoke began to emanante from the truck's tires and his vehicle was engulfed in a cloud of smoke. When he saw the smoke he "slammed the brakes." He described the impact as hard. He stated that the truck driver, Mr. Alvarez approached him after the accident. Joffrey asked him what made him stop short and asked if his truck was full. The driver said he was sorry, that he did have a full load and that he was cutoff by another vehicle. Joffrey testified that 8 - 10 seconds prior to the accident he had seen a small white car go from the left lane into the middle lane. He stated that although Alvarez told him that the white car had cut him off, it did not look to him like the truck had been cutoff.

Luis Alvarez, age 47, the driver of the Reliable Carrier Express truck testified that he had just unloaded air freight from his trailer at JFK and he was returning via the Van Wyck Expressway to the truck terminal in Carlstadt, New Jersey. He was driving in the middle lane at approximately 25-30 miles per hour and he observed two cars try to pass in front of him from the right lane. When the cars were in front of him in the middle lane they stopped in traffic and he had to stop his vehicle in order to avoid hitting them. Subsequently, he heard the Jairala vehicle hit the rear of the truck. He exited the truck and approached the car to see if the occupants were hurt. He then called 911. When the police arrived Alvarez told them that two cars passed in front of him and stopped, causing him to brake hard so as not to hit the cars in front of him. [*4]

Counsel for Alvarez contends that the evidence submitted demonstrates that the accident was caused solely by the negligence of Joffrey Jairala who drove directly into the rear of the Reliable tractor trailer which he contends was at a complete stop on the Van Wyck. Counsel contends that Jairala was negligent in the operation of his vehicle in striking the truck in the rear. Counsel contends that the accident was caused solely by the negligence of Jairala in that his vehicle was traveling too closely in violation of VTL § 1129 and that Jairala failed to bring his vehicle to a stop prior to rear-ending the Alvarez vehicle. Counsel states that although there are allegations that the truck driver stopped abruptly to avoid hitting the vehicles that changed lanes in front of him, Jairala was at fault for driving too closely to the truck and at an excessive rate of speed. Counsel, therefore, contends that Alvarez was not negligent and that Jairala was negligent as a matter law for striking the stopped truck in the rear without providing a non-negligent explanation.

In opposition, counsel for Tiffany Jairala, Bonita Zelman, Esq., contends that the evidence submitted by the movants is insufficient to demonstrate, prima facie, that the sole proximate cause of the accident was the negligence of Jairala in rear- ending the truck. Counsel contends that the deposition testimony raises questions of fact as to whether Alvarez was stopped in traffic when the truck was struck or whether Alvarez stopped short as a result of being cutoff. Further, counsel submits that the police report submitted by the movant indicates that Alvarez told the police officer at the scene that he was cut off and had to brake hard to avoid the collision with the cars in front of him. Counsel also submits that Jairala testified that the he did not observe working brake lights on the truck and he could not stop in time because he did not know the truck was braking. Thus, counsel submits there are questions of fact with respect to whether Alvarez was also negligent in stopping short on the highway and having non-working brake lights. Citing Gaeta v Carter, 6 AD3d 576 [2d Dept 2004] counsel contends that it has been held that when the lead driver also operates his vehicle in a negligent manner, the issue of comparative negligence is a question of fact for the jury.

Co-defendant Joffrey Jairala apparently settled with the plaintiff and did not submit an affirmation in opposition to the motion.

The proponent of a summary judgment motion must tender evidentiary proof in admissible form eliminating any material issues of fact from the case. If the proponent succeeds, the [*5]burden shifts to the party opposing the motion, who then must show the existence of material issues of fact by producing evidentiary proof in admissible form in support of his position (see Zuckerman v City of New York, 49 NY2d 557[1980]).

"When the driver of an automobile approaches another vehicle from the rear, he or she is bound to maintain a reasonably safe rate of speed and control over his or her vehicle, and to exercise reasonable care to avoid colliding with the other vehicle" (Macauley v ELRAC, Inc., 6 AD3d 584 [2d Dept. 2003]). It is well established law that a rear-end collision creates a prima facie case of negligence on the part of the driver of the rearmost vehicle, requiring the operator of that vehicle to proffer an adequate, non-negligent explanation for the accident (see Balducci v Velasquez, 92 AD3d 626 [2d Dept. 2012]; Klopchin v Masri, 45 AD3d 737 [2d Dept. 2007]; Hakakian v McCabe, 38 AD3d 493 [2d Dept. 2007]; Velazquez v Denton Limo, Inc., 7 AD3d 787 [2d Dept. 2004; Reed v New York City Transit Authority, 299 AD2d 330 [2d Dept. 2002]).

This court finds that Alvarez, who testified at his deposition that he struck co-defendant's stopped truck, failed to provide evidence as to a non-negligent explanation for the accident sufficient to raise a triable question of fact (see Lampkin v Chan, 68 AD3d 727 [2d Dept. 2009]; Cavitch v Mateo, 58 AD3d 592 [2d Dept. 2009]; Garner v Chevalier Transp. Corp, 58 AD3d 802 [2d Dept. 2009]; Kimyagarov v Nixon Taxi Corp, 45 AD3d 736 [2d Dept. 2007]).

Here, there is no dispute that the Jairala vehicle struck the truck in the rear after the truck stopped on the Van Wyck Expressway. As the movant, therefore, made the requisite prima facie showing of entitlement to summary judgment, the burden then shifted to Jairala to raise a triable issue of fact as to whether the Alvarez vehicle was also negligent, and if so, whether that negligence contributed to the happening of the accident (see Goemans v County of Suffolk,57 AD3d 478 [2d Dept. 2007]).

This court finds that the papers submitted failed to raise a triable issue of fact as to whether any alleged negligence on the part of Alvarez was a proximate cause of the accident. Alvarez stopped his truck in response to the two cars changing lanes in front of him and due to stop and go traffic. Jairala himself testified that he was aware traffic ahead was slowing down and he was aware that certain vehicles changed lanes in front of the truck. The courts have held that a claim that the driver of the lead vehicle made an abrupt stop in traffic is insufficient to rebut the presumption of negligence (see Emil Norsic & Son, [*6]Inc. v. L.P. Transp., Inc., 30 AD3d 368[2d Dept. 2006]). Further, where, as in ths case, the lead driver is forced to brake and stop suddenly without striking the vehicle in front due to that vehicle coming to a sudden stop, there is no basis for imposing liability on that driver (see Carhuayano v. J & R Hacking, 28 AD3d 413 [2d Dept. 2006]; Ayach v Ghazal, 25 AD3d 742 [2d Dept. 2006][claim that the lead vehicle was cutoff by a third party does not provide a nonnegligent explanation]). Thus, the fact that Alvarez stopped the truck abruptly in order to avoid colliding with the car in front of it that had stopped in traffic, provides a sufficient non-negligent explanation for his actions. Alvarez was able to bring his vehicle to a safe stop albeit suddenly, because the vehicle ahead changed lanes in front of him and then stopped due to traffic congestion. As Jairala acknowledged that traffic was slowing, he cannot claim that the truck's stop was unanticipated (see Harrington v Kern, 52 AD3d 473 [2d Dept. 2008]; Hakakian v McCabe, 38 AD3d 493[2d Dept. 2007]; Malone v Morillo, 6 AD3d 324, [1st Dept. 2004]). Lastly, the contention that Jairala did not see the truck's brake lights prior to the accident is insufficient to raise a triable issue of fact or to rebut the inference of negligence (see Balducci v Velasquez, 92 AD3d 626 [2d Dept. 2012]; Cortes v. Whelan, 83 AD3d 763 [2d Dept. 2011]; Macauley v. ELRAC, Inc., 6 AD3d 584 [2d Dept. 2004]).

Accordingly, as the evidence in the record demonstrates that defendant Jairala failed to provide a non-negligent explanation for the rear-end collision, and as no triable issues of fact have been put forth as to whether Alvarez may have borne comparative fault for the causation of the accident, and based on the foregoing, it is hereby

ORDERED, that defendants RELIABLE TRUCKING EXPRESS, INC., and LUIS ALVAREZ are entitled to judgment as a matter of law on the issue of liability. Defendants' motion for summary judgment dismissing the plaintiff's complaint against them is granted; and, it is further

ORDERED, that the remainder of the action shall continue.

Dated: May 14, 2012

Long Island City, NY

______________________________ [*7]

ROBERT J. MCDONALD

J.S.C.