Supreme Court of the State of New York, Appellate Division, Second Judicial Department

Decided on July 22, 2026

2024-08961, 2024-13318, (Index No. 536856/22)

Francesca E. Connolly, J.P.

Linda Christopher

Barry E. Warhit

Elena Goldberg Velazquez, JJ.

[*1]

DECISION & ORDER

In an action to recover damages for personal injuries, (1) the defendants appeal from an order of the Supreme Court, Kings County (Richard J. Montelione, J.), dated May 17, 2024, and (2) the defendants appeal, and the plaintiff cross-appeals, from an order of the same court dated November 1, 2024. The order dated May 17, 2024, insofar as appealed from, granted those branches of the plaintiff's motion which were for summary judgment on the issue of liability and dismissing the defendants' affirmative defense alleging comparative negligence. The order dated November 1, 2024, insofar as appealed from, upon reargument, adhered to the determination in the order dated May 17, 2024, granting that branch of the plaintiff's prior motion which was for summary judgment on the issue of liability. The order dated November 1, 2024, insofar as cross-appealed from, upon reargument, in effect, vacated so much of the order dated May 17, 2024, as granted that branch of the plaintiff's prior motion which was for summary judgment dismissing the defendants' affirmative defense alleging comparative negligence and thereupon denied that branch of the plaintiff's prior motion.

ORDERED that the appeal from the order dated May 17, 2024, is dismissed, as the portion of the order appealed from was superseded by the order dated November 1, 2024, made upon reargument; and it is further,

ORDERED that the order dated November 1, 2024, is reversed insofar as appealed from, on the law, upon reargument, so much of the order dated May 17, 2024, as granted that branch of the plaintiff's prior motion which was for summary judgment on the issue of liability is vacated, and thereupon, that branch of the plaintiff's prior motion is denied; and it is further,

ORDERED that the order dated November 1, 2024, is affirmed insofar as cross-appealed from; and it is further,

ORDERED that one bill of costs is awarded to the defendants.

The plaintiff commenced this action to recover damages for personal injuries he [*2]allegedly sustained when his vehicle collided with a vehicle operated by the defendant Paul W. Willie and owned by the defendant For U Trucking, LLC. The plaintiff moved, inter alia, for summary judgment on the issue of liability and dismissing the defendants' affirmative defense alleging comparative negligence. In an order dated May 17, 2024, the Supreme Court, among other things, granted those branches of the plaintiff's motion. The defendants moved, inter alia, for leave to reargue their opposition to those branches of the plaintiff's prior motion which were for summary judgment on the issue of liability and dismissing the defendants' affirmative defense alleging comparative negligence. In an order dated November 1, 2024, the court, among other things, upon reargument, adhered to its prior determination granting that branch of the plaintiff's prior motion which was for summary judgement on the issue of liability. However, upon reargument, the court, in effect, vacated so much of the order dated May 17, 2024, as granted that branch of the plaintiff's prior motion which was for summary judgment dismissing the defendants' affirmative defense alleging comparative negligence and thereupon denied that branch of the plaintiff's prior motion. The defendants appeal from both orders. The plaintiff cross-appeals from the order dated November 1, 2024.

"A driver of a vehicle approaching another vehicle from the rear is required to maintain a reasonably safe distance and rate of speed under the prevailing conditions to avoid colliding with the other vehicle" (Laureano v EAN Holdings, LLC, 225 AD3d 754, 755 [internal quotation marks omitted]; see Vehicle and Traffic Law § 1129[a]). Thus, "[a] rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the operator of the rear vehicle, thereby requiring that operator to rebut the inference of negligence by providing a nonnegligent explanation for the collision" (Thompson v New York City Tr. Auth., 208 AD3d 815, 817).

Here, the plaintiff established his prima facie entitlement to judgment as a matter of law on the issue of liability by submitting his affidavit, which demonstrated that his vehicle was stopped for a traffic condition ahead when it was struck in the rear by the defendants' vehicle (see Correa v Cannon, 240 AD3d 663, 664; Orlando v Gonzalez, 222 AD3d 989, 990; Tenezca v State of New York, 220 AD3d 959, 961; Guralenko v New York City Tr. Auth., 220 AD3d 847, 848). The plaintiff also established his prima facie entitlement to judgment as a matter of law dismissing the defendants' affirmative defense alleging comparative negligence by demonstrating that he was not at fault in the happening of the accident (see Orlando v Gonzalez, 222 AD3d at 990; Tenezca v State of New York, 220 AD3d at 961; Guralenko v New York City Tr. Auth., 220 AD3d at 848).

However, in opposition, the defendants raised a triable issue of fact as to whether Willie had a nonnegligent reason for striking the plaintiff's vehicle, which Willie averred was attempting to merge into Willie's lane of traffic at the time of the accident (see Fumo v Ortiz, 241 AD3d 877, 878; Ordonez v ADM Agravit, Inc., 205 AD3d 1042, 1043; Savall v New York City Tr. Auth., 173 AD3d 566, 567). The defendants submitted, inter alia, Willie's affidavit and an expert report, which raised triable issues of fact as to whether Willie was able to see the plaintiff's vehicle move into Willie's lane of traffic. Contrary to the plaintiff's contention, the expert report sufficiently corroborated Willie's assertion that the field of view of the dashboard camera in his vehicle was different from the field of view of a person sitting in the driver's seat of his vehicle (see Ordonez v ADM Agravit, Inc., 205 AD3d at 1043; see also Rezza v Chen, 237 AD3d 764, 765; Carpenter v Albee, 192 AD2d 1004, 1005). Further, the defendants raised triable issues of fact as to whether the plaintiff was comparatively at fault in the happening of the accident (see Fumo v Ortiz, 241 AD3d at 878).

Accordingly, upon reargument, the Supreme Court should have denied that branch of the plaintiff's prior motion which was for summary judgment on the issue of liability, but the court properly denied that branch of the plaintiff's prior motion which was for summary judgment dismissing the defendants' affirmative defense alleging comparative negligence.

CONNOLLY, J.P., CHRISTOPHER, WARHIT and GOLDBERG VELAZQUEZ, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court