The following papers numbered 1 to 12 were read on this motion by plaintiffs, YOO HA PARK and SUN JONG KIM, for an order pursuant to CPLR 3212(b) granting partial summary judgment in favor of plaintiffs on the issue of liability and setting the matter down for a trial on damages:

PapersNumbered

Notice of Motion-Affidavits-Exhibits...................1 - 7

Defendant's Affirmation in Opposition-Affidavits.......8 - 10

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

In this negligence action, the plaintiff, Yoo Ha Park, seeks to recover damages for personal injuries he allegedly sustained as a result of a multi-vehicle accident that occurred on October 12, 2011, on the Brooklyn Queens Expressway near the exit for the [*2]Grand Central Parkway. Plaintiff alleges that his vehicle was struck in the rear by the defendant's vehicle while he was stopped in traffic.

The plaintiff commenced this action by filing a summons and complaint on November 30, 2011. Issue was joined by service of defendant's verified answer with a counterclaim against Yoo Ha Park dated January 20, 2012. 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.

In support of the motion, the plaintiff submits an affirmation from counsel, David J. Lawrence, Esq; a copy of the pleadings; plaintiff's verified bill of particulars; a copy of the transcripts of the examination before trial of plaintiffs, Yoo Ha Park and Sun Jong Kim and defendant Zong Rong Zhu; and a copy of the motor vehicle accident report completed by plaintiff Yoo Ha Park.

At his examination before trial which took place on March 6, 2013, Yoo Ha Park, age 52, testified that on October 12, 2012, he was operating his Ford Minivan at approximately 7:50 a.m. when he was involved in a motor vehicle accident on the Brooklyn Queens Expressway near the exit for the Grand Central Parkway. He was driving his wife Sun Jong Kim, who was seated in the front passenger seat, to her job as a home health aid in Elmhurst. He states that he was traveling in the right lane of the BQE in heavy stop and go traffic. He had been stopped for approximately one minute behind a truck when his vehicle was struck from behind by the Lincoln Town Car operated by defendant Zhu. He testified that the impact to his vehicle caused his vehicle to strike the truck in front of his vehicle that was also stopped in traffic. The impact to the rear of his vehicle was heavy and the impact to the truck in front was light. As a result of the collision his neck and back impacted the seat and headrest. He called 911 and waited for an ambulance to arrive. He stated that the police did not come to the scene of the accident. Plaintiff Sun Jong Kim was taken from the scene in an ambulance and plaintiff Park left the scene in his vehicle.

Plaintiff Sun Jong Kim, age 50, testified that on the date of the accident she was sitting next to her husband in the passenger seat of his minivan on her way to work. She stated that her vehicle was stopped in the highway when she felt a very heavy impact to the rear of her vehicle. She also felt a second impact that was very light. When the ambulance arrived at the scene she complained to the medical personnel that she was feeling pain in [*3]her lower back, neck and right shoulder.

Defendant Zong Rong Zhu, a car service driver, testified that on the morning of the accident he had dropped off a client at LaGuardia Airport and was heading into Chinatown. He stated that he was operating his vehicle in heavy traffic in the left lane of the BQE. He stated that the front of his vehicle made contact with the rear of the plaintiff's vehicle. He testified that the impact was very light he stated that the plaintiffs' vehicle was stopped in traffic at the time of the collision. He stated that after the accident he attempted to leave the scene but the plaintiff did not allow him to leave. He stated that he waited for an hour and a half at the scene but the police never arrived.

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 his vehicle prior to rear-ending the plaintiffs' vehicle. Counsel asserts that the defendant admitted in his testimony that he hit the plaintiffs' vehicle in the rear when the plaintiffs' vehicle was stopped in traffic. Counsel contends, therefore, that the plaintiff is entitled to partial summary judgment as to liability because the defendant driver was solely responsible for causing the accident while the plaintiff, who was stopped in traffic, was free from culpable conduct.

In opposition to the motion, defendant's counsel, Matthew J. Jones, Esq., submits an affidavit from the defendant Zong Rong Zhu, dated September 13, 2013. In his affidavit, the defendant states that prior to the time of the contact between his vehicle and the vehicle operated by the plaintiff, he observed the vehicle operated by the plaintiff Yoo Ha Park make contact with the vehicle ahead of it and come to an immediate stop. He states that he never observed plaintiff's brake lights illuminated prior to the accident. He states that he applied his brakes but made light contact with the plaintiffs' vehicle. He states that but for the plaintiffs' accident with the vehicle ahead of it, he would not have made contact with the plaintiffs' vehicle. Defendant states that he believes questions of fact exist as to the cause of the accident, the lack of brake lights on the plaintiffs' vehicle, and the prior impact of the plaintiffs' vehicle with the non-party vehicle in front of it.

Defendant's counsel argues that although the defendant did not mention the prior impact with the third vehicle at his deposition, he was not asked about the involvement of the third [*4]vehicle and did not have an opportunity to discuss his version of the order of the impacts. Counsel states that given the opportunity at his examination before trial, defendant would have testified, as set forth in his affidavit, that plaintiffs' vehicle first struck the vehicle ahead of it causing plaintiff's vehicle to stop, and this was a proximate cause of the second impact involving the defendant's vehicle. In addition, counsel states that defendant did testify that he did not see the plaintiff's brake lights function immediately prior to the impact. Thus, defendant argues that as there are differing versions of how the accident occurred, there are questions fact raised as to the credibility of the plaintiff's testimony.

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 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 Xian Hong Pan v Buglione, 101 AD3d 706 [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]).

Here, both plaintiffs testified that their vehicle was lawfully stopped in heavy stop and go traffic when it was suddenly struck from behind by defendant's vehicle. Thus, the plaintiffs satisfied their 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]; Volpe v Limoncelli,74 AD3d 795 [2d Dept. 2010]; Vavoulis v Adler, 43 AD3d 1154 [2d 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 defendant to raise a triable issue of fact as to whether the plaintiff was [*5]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 failed to provide evidence as to a non-negligent explanation for the accident sufficient to raise a triable question of fact (see Bernier v Torres, 79 AD3d 776 [2d Dept. 2010]; 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]).

The courts have held that vehicle stops which are foreseeable under the prevailing traffic conditions, even if sudden and frequent, must be anticipated by the driver who follows, since he or she is under a duty to maintain a safe distance between his or her car and the car ahead" (Robayo v Aghaabdul, 2013 NY Slip Op 5889[ 2d Dept. 2013] quoting Shamah v Richmond County Ambulance Serv., 279 AD2d 564[2d Dept. 2001]). The defendant's assertion that the plaintiffs' vehicle stopped abruptly after striking the car in front of it, a version of the accident not testified to by the defendant at his deposition only raises a feigned issue of fact (see McCoy v Zaman, 67 AD3d 653 [2d Dept. 2009]). However, even if defendants' version was credited, it would still not excuse the defendant's actions in striking the plaintiff's car in the rear given the traffic conditions at the time. Here, both drivers testified to the jammed, stop and go traffic on the road. Under the circumstances, the defendant should have anticipated that the plaintiff might have to make a sudden stop (see Robayo v. Aghaabdul, supra; Sayyed v Murray, 109 AD3d 464 [2d Dept 2013]; Xian Hong Pan v Buglione, 101 AD3d 706 [2d Dept. 2012]; Taing v. Drewery, 100 AD3d 740 [2d Dept. 2012]; Staton v Ilic, 69 AD3d 606 [2d Dept. 2010]). Moreover, even if the plaintiff struck the vehicle in front of it prior to the defendant striking the plaintiffs' vehicle, the defendant failed to raise a triable issue of fact as to whether the plaintiff contributed to the collision between the plaintiffs' vehicle and the defendant's vehicle (see Martorell v Marcus, 106 AD3d 883 [2d Dept. 2013]). The defendant admitted at his deposition that he observed that the plaintiffs' vehicle was completely stopped when he first saw it (see defendant's deposition at page 29; Sayyed v Murray, 109 AD3d 464 [2d Dept 2013]). Thus, under the circumstances, the allegation that the plaintiff was negligent in abruptly stopping after striking the vehicle ahead was insufficient to rebut the inference of negligence on the defendant's part or to raise a triable issue of fact as to whether there was a nonnegligent explanation for the collision. [*6]

In addition, defendant's explanation that he did not observe brake lights on the plaintiffs' vehicle is insufficient to rebut the presumption of negligence created by the rear-end collision or to raise a triable issue of fact to defeat summary judgment (see Macauley v ELRAC, Inc., 6 AD3d 584[2d Dept. 2004][defendant's testimony that she did not recall seeing brake lights or tail lights illuminated on the plaintiff's vehicle before the collision did not adequately rebut the inference of negligence]; Gross v Marc, 2 AD3d 681 [2d Dept. 2003][the defendant failed to provide evidence sufficient to raise a triable question of fact as to whether the alleged malfunctioning brake lights on the plaintiff's vehicle proximately caused the accident]; Waters v City of New York, 278 AD2d[2d Dept. 2000][defendant's statement that he did not observe any illuminated brake lights indicating that the truck was stopped is insufficient to establish a genuine issue of material fact precluding summary judgment]; also see Santarpia v First Fid. Leasing Group, Inc., 275 AD2d 315 [2d Dept. 2000]; Lopez v Minot, 258 AD2d 564[2d Dept. 1999]).

Accordingly, for the reasons stated above, it is hereby

ORDERED, that the plaintiffs' motion is granted, and the plaintiffs, YOO HA PARK and SUN JONG KIM, shall have partial summary judgment on the issue of liability against the defendant, ZONG RONG ZHU, and the Clerk of Court is authorized to enter judgment accordingly; and it is further,

ORDERED, that upon completion of discovery, filing a note of issue, and compliance with all the rules of the Court, this action shall be placed on the trial calendar of the Court for a trial on damages.

Dated: October 4, 2013

Long Island City, NY

_______________________

ROBERT J. MCDONALDJ.S.C.