The following papers numbered 1 to 12 were read on this motion by plaintiffs, ELLEN GOOLNICK, ARNOLD MATES and KHADIJA KHAN, for an order pursuant to CPLR 3212(b) granting plaintiffs partial summary judgment on the issue of liability and setting this matter down for a trial on damages:

PapersNumbered

Notice of Motion-Affidavits-Exhibits...................1 - 6

Defendant's Affirmation in Opposition..................7 - 9

Reply Affirmation......................................10 - 12

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In this negligence action, the plaintiffs, ELLEN GOOLNICK, ARNOLD MATES and KHADIJA KHAN, seek to recover damages for personal injuries they each allegedly sustained as a result of a motor vehicle accident that occurred on February 9, 2012 between [*2]the vehicle operated by plaintiff, ELLEN GOOLNICK, and the vehicle owned by defendant, JOSEPH CRACCO, and operated by defendant, MARGUERITE CRACCO. At the time of the accident, plaintiff, Ellen Goolnick, was operating her vehicle on Merrick Road at the intersection with North Kensington in Rockville Centre, Nassau County, New York. Plaintiffs Arnold Mates and Khadija Khan were passengers in Ms. Goolnick's vehicle. Ms. Goolnick's vehicle was stopped at a red traffic signal on Merrick Road and North Kensington, when her vehicle was hit in the rear by the vehicle being operated by defendant Marguerite Cracco. The plaintiffs were allegedly injured as a result of the impact.

The plaintiff commenced this action by filing a summons and complaint on February 29, 2012. Issue was joined by service of defendants' verified answer dated March 28, 2012. A note of issue was filed on May 10, 2013. By decision and order dated August 26, 2013, this court granted a special preference on the ground that plaintiff Arnold Mates is over the age of 70. The matter is presently calendared in the Trial Scheduling Part for December 11, 2013. Plaintiffs now move for an order pursuant to CPLR 3212(b), granting partial summary judgment on the issue of liability and setting this matter down for a trial on damages only.

In support of the motion, the plaintiff submits an affirmation from counsel, David Zemsky, Esq., a copy of the pleadings, copies of the transcripts of the examination before trial of plaintiff, Ellen Goolnick and defendant, Marguerite Cracco and an uncertified copy of the police accident report (MV-104).

In her examination before trial taken on December 17, 2012, plaintiff Ellen Mates Goolnick s/h/a Ellen Goolnick, age 55, a teacher's assistant in the Freeport Union School District, testified that on February 9, 2012 at approximately 2:00 p.m she was operating her 2010 Honda Civic, coming from her home in North Bellmore and taking her father to an eye doctor appointment in Lynbrook. Her father, Arnold Mates, age 81 at the time of the accident, was in the front passenger seat and Ms. Khan, her father's home health aide, was in the rear passenger seat. As she was proceeding westbound on Merrick Road she came to a gradual stop at a red traffic signal at the intersection of North Kensington in Rockville Centre. While waiting at the light she felt a very hard impact to the rear of her vehicle. After the collision she exited her vehicle and observed that the rear of her vehicle was badly damaged. She asked the defendant at the scene what happened and the defendant responded that she was sorry and that she had gotten distracted. The three plaintiffs [*3]were all removed from the scene by ambulance and were transported to the emergency room at South Nassau Hospital.

Defendant Marguerite Cracco, an employee of Aboff Design Studio, testified at her examination before trial taken on December 19, 2012, that she was involved in a motor vehicle accident on February 9, 2012. At the time she was operating an Acura MDX. She had dropped her daughter off at nursery school in Massapequa and was proceeding to her doctor's office in Rockville Centre. She was traveling in the left lane of Merrick Road when the front of her vehicle made contact with the rear of the plaintiffs' vehicle. When she observed that the plaintiffs' vehicle was stopped in front of her she attempted to stop behind the plaintiff's vehicle but as she stated, "I was not able to brake, my foot slipped off the brake so that I couldn't stop." She was traveling at a speed of 30 miles per hour prior to the accident and stated that she struck the vehicle with a medium to heavy impact causing her air bags to deploy. When she exited her vehicle she observed substantial damage to the front of her vehicle and the rear of plaintiff's vehicle. She stated that she believed that plaintiff had stopped behind another vehicle that was stopped waiting to make a left turn.

Plaintiffs' counsel contends that the accident was caused solely by the negligence of the defendant in that defendant's vehicle was traveling too closely in violation of VTL § 1129 and the defendant driver failed to safely stop her vehicle prior to rear-ending the plaintiffs' vehicle. Counsel asserts that the defendant's version of how the accident occurred constitutes an admission of negligence in that she observed the plaintiffs' vehicle stopped in the roadway, attempted to brake, but struck the plaintiffs' vehicle at a rate of 30 miles per hour when her foot slipped off the brake. 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 and plaintiff passengers were free from culpable conduct.

In opposition to the motion, defendants' counsel, John J. Ficara, Esq., states that the question of whether the defendant's conduct amounts to negligence is a question of fact for the trier of fact.

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 [*4]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 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 Kertesz v Jason Transp. Corp., 102 AD3d 658 [2d Dept. 2013]; Ramos v TC Paratransit, 96 AD3d 924 [2d Dept. 2012]; Pollard v Independent Beauty & Barber Supply Co., 94 AD3d 845 [2d Dept. 2012]; Klopchin v Masri, 45 AD3d 737 [2d Dept. 2007]).

Here, plaintiff testified that her vehicle was at a complete stop at a red traffic signal when it was suddenly struck from behind by defendants' vehicle. Thus, the plaintiff satisfied her prima facie burden of establishing entitlement to judgment as a matter of law on the issue of liability (see Robayo v Aghaabdul, 2013 NY Slip Op 5889 [2d Dept. 2013]; Sayyed v Murray, 109 AD3d 464 [2d Dept. 2013]; Prosen v Mabella, 107 AD3d 870 [2d Dept. 2013]; Xian Hong Pan v Buglione, 101 AD3d 706 [2d Dept. 2012]).

Having made the requisite prima facie showing of entitlement to summary judgment, the burden then shifted to defendant to raise a triable issue of fact as to whether plaintiff 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 defendant, who testified that she observed the plaintiff's vehicle stopped in front of her but struck plaintiffs' vehicle when her foot slipped off the brake pedal while attempting to stop, failed to provide evidence as to a non-negligent explanation for the accident sufficient to raise a triable question of fact (see Grimm v Bailey, 105 AD3d 703 [2d Dept. 2013]; 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]).

As the evidence in the record demonstrates that the defendant failed to provide a non-negligent explanation for the collision and as no triable issues of fact have been put forth as to whether plaintiff driver or her passengers may have borne comparative fault for the causation of the accident, and based on [*5]the foregoing, it is hereby

ORDERED, that the plaintiff's motion is granted, and the plaintiffs ELLEN GOOLNICK, ARNOLD MATES and KHADIJA KHAN, shall have partial summary judgment on the issue of liability against the defendants MARGUERITE CRACCO and JOSEPH CRACCO and the Clerk of Court is authorized to enter judgment accordingly; and it is further,

ORDERED, that this case remains on the trial calendar of the Trial Scheduling Part on December 11, 2013 for a trial on damages.

Dated: October 4, 2013

Long Island City, NY

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ROBERT J. MCDONALDJ.S.C.