The following papers numbered 1 to 12 were read on this motion by plaintiffs, MARVIN ABRAMS and ROSE MARIE ABRAMS, for an order pursuant to CPLR 3212(b) granting plaintiffs partial summary judgment on the issue of liability:

Papers Numbered

Notice of Motion-Affidavits-Exhibits.......................1 - 5

Defendant's Affirmation in Opposition-Affidavits...........6 - 10

Plaintiffs' Reply Affirmation.............................11 - 12 _________________________________________________________________

In this negligence action, the plaintiffs, Marvin Abrams and Rose Marie Abrams, seek to recover damages for personal injuries they each allegedly sustained as a result of a motor vehicle accident that occurred on March 16, 2009, between the plaintiff's vehicle and the vehicle owned by Ean Trust and operated by defendant M. F. Abbondandolo. The accident took place on Jericho Turnpike near the intersection of Hicks Lane in the Village of Old Westbury, County of Nassau, State of New York. The plaintiffs' vehicle was struck in the rear by the vehicle [*2]operated by M. F. Abbondandolo.

The plaintiff commenced this action by service of a summons and complaint on August 15, 2011. Issue was joined by service of defendant's verified answer dated November 2, 2011. Plaintiff now moves, prior to depositions, for an order pursuant to CPLR 3212(b), granting summary judgment on the issue of liability against defendants M. F. Abbondandolo and Ean Trust and setting this matter down for a trial on damages.

In support of the motion, the plaintiff submits an affirmation from counsel, Edward J. Nitkewicz; a copy of the pleadings; affidavits from plaintiffs, Marvin Abrams and Rose Marie Abrams; and a copy of the police accident report (MV-104).

In his affidavit dated February 22, 2012, plaintiff Marvin Abrams states as follows:

"On March 16, 2009, I was the operator of a motor vehicle stopped in the left turning lane of Jericho Turnpike at its intersection with Hicks Lane in the Village of Old Westbury, County of Nassau, and State of New York. At the aforementoned time and place, my vehicle was struck from the rear by a motor vehicle owned by defendant Ean Trust and operated by defendant M. F. Abbondandolo. My vehicle was stopped and the left turn signal to my vehicle was on and operating when the impact occurred. Prior to coming to a stop in the left turn lane, I changed lanes and properly moved my vehicle from the center lane to the left lane and again from the left lane to the left turning lane. I was not issued a summons for making an unsafe lane change and the Police Officer investigating the accident indicated to me that he did not witness the accident. Immediately after the accident, defendant Abbondandolo apologized to my wife and I. He indicated that he did not see our vehicle because he was placing a call on his cellular phone. He informed my wife and me that he was late for a court appearance of some sort relating to another civil action for damages stemming from a motor vehicle accident in which he struck a vehicle from the rear. He appeared to be his reported age of 22 years old."

Ms. Abrams, who was a front seat passenger in the plaintiffs' vehicle submitted an affirmation with similar factual allegations.

The police report states in the section entitled "accident description/Officer's notes: "MVNo.1 (defendants) W/B in left lane. MV#2 (plaintiffs) W/B in right lane was trying to get into left turn lane and made unsafe lane changes across center lane [*3]and into left lane. Front of MV #1 was in collission with rear of MV #2. Driver of MV #2 stated he had to get to left turn lane to get into Hicks Nursery."

The plaintiffs contend that the defendant driver was negligent in the operation of his vehicle in striking the plaintiffs' vehicle in the rear. Plaintiff's counsel contends that the accident was caused solely by the negligence of the defendant driver in that his vehicle was traveling too closely in violation of VTL § 1129(a) and that the driver failed to safely stop his vehicle prior to rear-ending the plaintiffs' vehicle. Counsel contends that the evidence indicates that the plaintiffs' vehicle was stopped in the left turn lane with his left turn signal on when it was struck from behind by the defendants' vehicle. Counsel contends, therefore, that the plaintiffs are entitled to partial summary judgment as to liability because the defendant driver was solely responsible for causing the accident while the plaintiff driver was free from culpable conduct.

In opposition to the motion, defendant's counsel, Tracy S. Reifer, Esq., submits an affidavit from the defendant dated July 9, 2012, which states in pertinent part:

"At the time of the motor vehicle accident I was operating a 2008 Kia that I had previously rented from Enterprise Rent-A-Car and was owned by EAN TRUST. The accident occurred on Jericho Turnpike in front of a nursery known as Hicks, County of Nassau, State of New York. Prior to the motor vehicle accident I was traveling westbound on Jericho Turnpike traveling in the left lane of travel. I had been in the left lane of travel for approximately 10 minutes. I was traveling at a speed of approximately 55 miles per hour. The posted speed limit in that area is 55 miles per hour. As I was traveling in the left lane of travel I saw a vehicle that I subsequently learned was operated by Marvin Abrams traveling in the right lane of travel, and saw as it suddenly moved from the right lane through the middle lane and into the lane in which I was traveling. Upon entering my lane, the vehicle rapidly decreased in speed as it appeared that the operator was trying to turn into the Hicks Nursery. Upon seeing the vehicle rapidly slow down, I slammed on the brakes of my car, but was unable to stop before striking Mr. Abrams' vehicle. Due to the manner in which Mr. Abrams entered my lane of travel and suddenly decreased his speed, I was unable to avoid the impact."

Defendant also annexes a copy of a personal injury questionnaire that plaintiffs submitted to a treating physician [*4]in which it states that their vehicle was moving at 5 miles per hour when it was hit in the rear. Defendants' counsel claims that this statement contradicts the plaintiffs' statement that they were stopped at the time their vehicle was hit in the rear. Counsel also claims the police report also contradicts their affidavit in which the defendant driver stated that he safely changed lanes prior to the accident. Moreover, defendant's counsel contends that the defendant's affidavit in which he states that plaintiffs' vehicle suddenly veered from the middle lane into his lane and abruptly slowed down in front of his vehicle causing him to collide with plaintiff's vehicle presents a sufficient non-negligent explanation as to how and why the rear-end collision occurred and raises a question of fact as to the comparative negligence of the plaintiff which cannot be resolved as a matter of law.

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 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 automobile 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 with a stopped or stopping vehicle 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 Klopchin v Masri, 45 AD3d 737 [2d Dept. 2007]; Hakakian v McCabe, 38 AD3d 493 2d Dept. 2007]; Reed v. New York City Transit Authority, 299 AD2 330 [2d Dept. 2002]; Velazquez v Denton Limo, Inc., 7 AD3d787 [2d Dept. 2004].

Here, plaintiffs stated that their vehicle was stopped in a left turn lane on Jericho Turnpike when it was struck from behind by defendants' motor vehicle. Thus, the plaintiffs satisfied their prima facie burden of establishing entitlement to judgment as a matter of law on the issue of liability by demonstrating that their vehicle was stopped in a left turn lane with its left turn signal on when it was struck in the rear by the vehicle operated by defendant Abbondandolo (see Volpe v Limoncelli,74 AD3d 795 [2d Dept. 2010]; Vavoulis v Adler, 43 ad3d 1154;[2d [*5]Dept. 2007]; Levine v Taylor, 268 AD2d 566 [2000]).

Having made the requisite prima facie showing of entitlement to summary judgment, the burden then shifted to defendants to raise a triable issue of fact as to whether plaintiff was also negligent, and if so, whether his negligence contributed to the happening of the accident (see Goemans v County of Suffolk,57 AD3d 478 [2d Dept. 2007]).

Viewing this evidence in the light most favorable to the non-moving party and affording the defendants the benefit of every favorable inference that can be drawn from the evidence, this court finds that the defendant's affidavit as well as the police accident report stating that the plaintiff suddenly changed lanes in front of him, cutting him off and causing him to hit plaintiffs' vehicle in the rear was sufficient to raise a triable issue of fact as to the proximate cause of the subject accident and was sufficient to provide a non-negligent explanation for the rear-end collision (see Scheker v Brown, 85 AD3d 1007[2d Dept. 2011] [the defendant raised a triable issue of fact as to whether she had a non-negligent explanation for the collision stating that the plaintiff driver suddenly changed lanes, directly in front of her vehicle, without signaling, and then slowed down]; Ortiz v Hub Truck Rental Corp., 82 AD3d 725 [2d Dept. 2011][evidence that a plaintiff's vehicle made a sudden lane change directly in front of a defendant's vehicle, forcing that defendant to stop suddenly, is sufficient to rebut the inference of negligence]; Reitz v. Seagate Trucking, Inc., 71 AD3d 975 [2d Dept. 2010][the defendants rebutted the inference of negligence by adducing evidence that the plaintiffs' vehicle suddenly changed lanes directly in front of their vehicle, forcing the defendant to stop suddenly]; Oguzturk v. General Elec. Co., 65 AD3d 1110 [2d Dept. 2009][defendant's explanation, that the accident occurred after the plaintiff's vehicle suddenly, and without signaling, moved from the center lane into the left lane directly in front of defendant's path and then slowed down, raised a triable issue of fact sufficient to defeat the plaintiffs' motion]; also see Connors v Flaherty, 32 AD3d 891 [2d Dept. 2006]; Briceno v Milbry, 16 AD3d 448 [2d Dept. 2005]).

Therefore, this Court finds that the evidence in the record demonstrates that there are triable issues of fact as to whether plaintiff may have borne comparative fault for the causation of the accident (see Allen v Echols, 88 AD3d at 927 [2d Dept. 2011]; Gause v Martinez, 91 AD3d 595[2d Dept. 2011][the issue of [*6]comparative fault is generally a question for the trier of fact]).

Accordingly, for the reasons set forth above, it is hereby

ORDERED, that the plaintiffs' motion for partial summary judgment on the issue of liability is denied.

Dated: July 20, 2012

Long Island City, NY

_______________________

ROBERT J. MCDONALDJ.S.C.