Appeal from an order of the Civil Court of the City of New York, Queens County (Carmen R. Velasquez, J.; op 34 Misc 3d 1229[A], 2012 NY Slip Op 50292[U]), entered February 27, 2012. The order, insofar as appealed from as limited by the brief, denied the branch of plaintiff's cross motion seeking summary judgment on the issue of liability on its second cause of action.

ORDERED that the order, insofar as appealed from, is affirmed, without costs.

In this subrogation action, plaintiff alleges that an accident occurred in 2009 involving a vehicle owned and operated by plaintiff's subrogor, Milagros Lopez, and defendants' vehicle, and that the accident was caused by defendants' negligence. Plaintiff asserts, as a second cause of action, that Ms. Lopez sustained a "serious injury" as a result of the 2009 accident, for which she was compensated by plaintiff. Plaintiff seeks to recover uninsured motorist benefits in the sum of $17,500 which it paid to Ms. Lopez. After issue was joined, Ms. Lopez was deposed. She testified, among other things, that her vehicle had been stopped at a stop sign on the entrance ramp leading to Route I-95, when her vehicle had been rear-ended by defendants' vehicle. [*2]

Defendants moved to strike the action from the trial calendar in order to have Ms. Lopez undergo a physical examination. Plaintiff cross-moved for summary judgment on the issue of liability on its second cause of action on the ground that Ms. Lopez's deposition testimony, to the effect that her vehicle had been hit in the rear when she had been stopped at a stop sign, established a prima facie case of defendants' negligence. Plaintiff also sought to preclude a physical examination of Ms. Lopez. In an affidavit in opposition, defendant Garcia, the driver of the vehicle which had struck Ms. Lopez's vehicle, stated, among other things, that Ms. Lopez's vehicle had inexplicably stopped suddenly after Ms. Lopez had proceeded through the stop sign, which is when his vehicle had struck hers. As relevant to this appeal, the Civil Court, by order entered February 27, 2012 (34 Misc 3d 1229[A], 2012 NY Slip Op 50292[U]), denied the branch of plaintiff's cross motion seeking summary judgment on its second cause of action on the grounds that this branch of the cross motion was untimely and that, in any event, a triable issue of fact had been raised. Plaintiff appeals, as limited by its brief, from the stated portion of the order.

With regard to the merits of the branch of plaintiff's cross motion seeking summary judgment on the second cause of action, we note that a rear-end collision with a stopped or stopping vehicle creates a prima facie case of negligence with respect to the operator of the moving vehicle and imposes a duty on that operator to rebut the inference of negligence by providing a nonnegligent explanation for the collision (see Tutrani v County of Suffolk, 10 NY3d 906, 908 [2008]; Parra v Hughes, 79 AD3d 1113, 1114 [2010]; DeLouise v S.K.I. Wholesale Beer Corp., 75 AD3d 489, 490 [2010]; Volpe v Limoncelli, 74 AD3d 795 [2010]; Staton v Ilic, 69 AD3d 606 [2010]). Plaintiff established its prima facie entitlement to judgment as a matter of law on the issue of liability with respect to its second cause of action by submitting Ms. Lopez's deposition testimony wherein she stated that defendants' vehicle had struck her vehicle in the rear when she had been stopped for a stop sign. Defendant Garcia, however, averred in his affidavit that Ms. Lopez's vehicle had inexplicably stopped suddenly after proceeding through the stop sign, which is when his vehicle had struck hers, thereby raising a triable issue of fact as to whether Ms. Lopez negligently caused or contributed to the accident (see e.g. Kertesz v Jason Transp. Corp., 102 AD3d 658 [2013]; Pollard v Independent Beauty & Barber Supply Co., 94 AD3d 845 [2012]; Delayhaye v Caledonia Limo & Car Serv., Inc., 49 AD3d 588 [2008]; Richards v Manley Driving School, Inc., 27 AD3d 443 [2006]). Thus, the Civil Court properly denied, on the merits, the branch of plaintiff's cross motion seeking summary judgment on the second cause of action. In view of the foregoing, we need not reach the Civil Court's alternate ground for denying that branch of the cross motion.

Accordingly, the order, insofar as appealed from, is affirmed.

Pesce, P.J., Weston and Rios, JJ., concur.
Decision Date: July 01, 2013