The following papers numbered 1 to 10 were read on this motion by plaintiffs, KATHERINE FLOREZ and JOHN FLOREZ-CALVO, for an order pursuant to CPLR 3212, granting plaintiffs partial summary judgment on the issue of liability and setting the matter down for a trial on damages:

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This is a personal injury action in which plaintiff, KATHERINE FLOREZ, seeks to recover damages for injuries she sustained as a result of a motor vehicle accident that occurred [*2]on October 9, 2014, on eastbound Horace Harding Expressway near the intersection with 150th Street, Queens County, New York. At the time of the accident, the plaintiff's vehicle was allegedly stopped in traffic when it was hit in the rear by the vehicle owned by defendant, Sandra Bechan-Diaz, and operated by defendant, Carlos Diaz. Plaintiff alleges that as a result of the impact she sustained serious physical injuries.

The plaintiff commenced this action by filing a summons and complaint on October 13, 2014. Issue was joined by service of defendant's verified answer dated November 21, 2014. Plaintiff now moves, prior to depositions, for an order pursuant to CPLR 3212(b), granting partial summary judgment on the issue of liability and setting the matter down for a trial on serious injury and damages only.

In support of the motion, the plaintiff submits an affidavit from counsel, Stuart T. Spitzer, Esq; a copy of the pleadings; a copy of plaintiff's verified bill of particulars; a copy of the police accident report(MV-104AN); and an affidavit of facts from the plaintiff, Katherine Florez.

In her affidavit, dated February 7, 2015, the plaintiff states that on September 10, 2014 she was operating a 2008 Nissan and was proceeding eastbound on the Horace Harding Expressway. She states she was proceeding at a safe and cautious speed due to heavy traffic conditions. She states that after her vehicle had been at a full stop for approximately one minute, it was suddenly, and without warning, struck in the rear by a 1997 Honda operated by defendant Carlos L. Diaz. She states that defendant Diaz admitted to her that he hit her hard and hit the accelerator instead of the brakes.

The defendant, Carlos L. Diaz, states in his affidavit dated March 19, 2015, that at the time of the accident traffic was heavy on the Horace Harding Expressway and best described as bumper to bumper traffic. He states that when he made contact with the plaintiff's vehicle it was moving at the time of the impact and was not stopped. He also denies that he told the plaintiff that he hit the accelerator instead of the brakes.

The police report which is based upon the statements of the drivers states:

"At t/p/o vehicle No.1 (plaintiff), states she was driving eastbound on Horace Harding following the flow of traffic when Vehicle #2 (defendant) rear-ended vehicle #1. Vehicle #2 (defendant), states he was also driving behind vehicle #1 [*3]following the flow of traffic when he rear-ended vehicle #1 unexpectedly."

The plaintiff contends that defendant was negligent in the operation of his vehicle in striking plaintiff's vehicle in the rear. Plaintiff's counsel contends that the accident was caused solely by the negligence of the defendant in that his vehicle was traveling too closely in violation of VTL § 1129 and that he failed to brake his vehicle in a timely and proper manner. Counsel contends that defendant's statement that he struck the plaintiff's vehicle unexpectedly is insufficient to provide a non-negligent explanation for the collision and is in sufficient to raise a triable issue of fact (citing Rodriguez v Farrell, 115 AD3d 929 [2d Dept. 2014]; David v New York City Bd. Of Educ. 19 AD3d 639 [2d Dept. 2005]). 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 was free from culpable conduct.

In opposition to the motion, defendant's counsel, Dimple Kumar, Esq., states that there is a question of fact because the plaintiff stated that she was stopped when her vehicle was struck in the rear whereas the defendant states that the plaintiff's vehicle was moving when he struck the vehicle.

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 Parra v Hughes, 79 AD3d 1113 [2d Dept. 2010][the defendant's claim that the vehicle immediately in front of him made a sudden stop, standing alone, was insufficient, under the circumstances of this case, to rebut the presumption of negligence]; DeLouise v S.K.I. Wholesale Beer Corp., 75 AD3d 489 [2d Dept. 2010]; Volpe v Limoncelli, 74 [*4]AD3d 795 [2d Dept. 2010]; 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, plaintiff states that she was stopped in traffic on the Horace Harding Expressway and was struck from behind by defendant's motor vehicle. Thus, the plaintiff satisfied her prima facie burden of establishing her entitlement to judgment as a matter of law on the issue of liability by demonstrating that her vehicle was stopped when it was struck in the rear by the vehicle operated by defendant (see Ramos v TC Paratransit, 96 AD3d 924 [2d Dept. 2012]; Napolitano v Galletta, 85 AD3d 881 [2d Dept. 2011]; Kastritsios v Marcello, 84 AD3d 1174 [2d Dept. 2011]).

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 his 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 submit evidence as to any negligence on the part of plaintiff or to provide 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]; Gomez v Sammy's Transp., Inc., 19 AD3d 544 [2d Dept. 2005]). If the operator of the moving vehicle cannot come forward with evidence to rebut the inference of negligence, the occupants and owner of the stationary vehicle are entitled to summary judgment on the issue of liability (see Kimyagarov v. Nixon Taxi Corp., 45 AD3d 736 [2d Dept. 2007]). The evidence demonstrated that the plaintiff, who was in a stopped vehicle, operated her vehicle in a nonnegligent manner and no evidence was presented to show that she contributed to the happening of the injury-producing event (see Aikens-Hobson v Bruno, 97 AD3d 709 [2d Dept. 2012]; Daramboukas v Samlidis, 84 AD3d 719 [2d Dept. 2011]; Franco v Breceus, 70 AD3d 767 [2d Dept. 2010]; Shirman v Lawal, 69 AD3d 838 [2d Dept. 2010]).

Further, although defendant contends that the plaintiff's vehicle was moving at the time of the impact, he admits that the traffic was stop and go or bumper to bumper at the time. Therefore, regardless of whether the plaintiff's vehicle was stopped or slowing down at the time of the impact, the defendant failed to offer a non-negligent explanation for striking her vehicle in the rear in heavy traffic conditions (see Xian Hong Pan v Buglione, 101 AD3d 706 [2d Dept. 2012]). Moreover, vehicle [*5]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 (see Le Grand v Silberstein, 123 AD3d 773 [2d Dept. 2014]; Gutierrez v Trillium USA, LLC, 111 AD3d 669 [2d Dept. 2013]; Shamah v Richmond County Ambulance Serv., 279 AD2d 564 [2d Dept. 2001]).

Accordingly, this court finds that in opposition to plaintiff's motion, defendant failed to submit evidence sufficient to raise a triable issue of fact (see Arias v Rosario, 52 AD3d 551 [2d Dept. 2008]; Smith v Seskin, 49 AD3d 628 [2d Dept.2008]; Campbell v City of Yonkers, 37 AD3d 750 [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 may have borne comparative fault for the causation of the accident, and based on the foregoing, it is hereby,

ORDERED, that the plaintiff's motion for partial summary judgment on the issue of liability is granted, and it is further,

ORDERED, that upon completion of discovery on the issue of damages, 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 serious injury and damages.

Long Island City, N.Y

_________________ROBERT J. MCDONALDJ.S.C.