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Struck in the Rear

The plaintiff driver was struck in the rear by the defendant motor vehicle driver in Rockland County, New York. BBNR made a motion asking the court to determine that the defendant was at fault as a matter of law. The judge granted our motion and the only issue left for a jury to decide was how much money to award. The case settled shortly after winning this decision.

WIESLAW ZOLTY v. CHESKEL DERSHOWITZ

Supreme Court, County of Rockland, Index No. 13303/10

This personal injury action arises from an incident in which the Plaintiff’s vehicle was struck in the rear end by Defendant’s automobile. At the time of the accident, Plaintiff alleges that he was stopped on Route 306 in the Town of Ramapo waiting to make a left tum onto Phyllis Terrace when he was suddenly and unexpectedly struck by the Defendant’s vehicle. Plaintiff has now moved for summary judgment on the issue of liability contending, in substance, that there are no issues of fact to be determined.

In opposition to the motion, Defendant’s counsel states, in substance, that Plaintiff’s motion is premature since no discovery has occurred. No affidavit from the Defendant has been offered. CPLR Rule 3212 provides that a summary judgment motion will be granted if, upon all the papers and proof submitted, the cause of action is established sufficiently to warrant the Court, as a matter of law, in directing judgment in favor of any party. The motion will be denied where any party shows facts sufficient to require a trial of any issue of fact. Len Duong v. City University, 150 AD2d 349, 2nd Dept., 1989. In determining this motion for summary judgment, the evidence must be viewed in the light most favorable to the responding party and least favorable to the movant. Glennon v. Mayo, 148 AD2d 580, 2nd Dept. 1989.

A rear-end collision with a stopped or stopping vehicle creates a prima facie case of liability with respect to the operator of the moving vehicle and imposes a duty on that operator to rebut the inference of negligence and to provide a non-negligent explanation for the collision. Niyazov v Bradford, 13 AD3d 501, 2nd Dept., 2004; Russ v Investech Sec., 6 AD3d 602 2nd Dept., 2004; Vecchio v. Hildebrand, 304AD2d 749, 2nd Dept.,2003; McGregor v. Manzo, 295 AD2d 487, 2nd Dept. 2002.

In support of his motion for summary judgment, Plaintiff has subm’Ited an affidavit and a police report confirming Plaintiffs version of the facts, i.e., that he was stopped at an intersection when his automobile was struck in the rear by Defendant’s vehicle.

Defendant has not offered any evidence in opposition to the motion to rebut the inference of negligence and to raise a triable issue of fact. Defendant’s contention that Plaintiff’s motion is “… premature…” and that discovery must still be conducted does not warrant denial of Plaintiffs motion since Defendant, as operator of his vehicle, has personal knowledge of the relevant facts of the accident. The lack of disclosure thus far in the case does not excuse Defendant from submitting an affidavit in opposition to the motion. Rainford v Sung S. Han 18 A.D.3d 638, 2nd Dept., 2005; Johnson v Phillips, 261 AD2d 269, 2nd Dept, 1999. Accordingly, Plaintiffs motion for summary judgment on the issue of liability is granted.

The parties are advised that a Preliminary Conference in this matter will be held on May 4, 2011 at 9:30am.

April 19, 2011

Hon. Alfred J. Weiner, J.S.C.

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