Hit in the Rear
The plaintiff motorist was driving slowly in traffic when she was struck in the rear by the defendant’s vehicle in the Bronx, New York. The defendant argued that the plaintiff stopped short which was rejected by the Court. The court granted plaintiff summary judgment, finding that the defendant was responsible for the accident as a matter of law. The case settled shortly after this decision.
DAWN V. FOSTER v. ANDREW J. DONALDSON
Supreme Court, County of Bronx, Index No. 302705/2011
Plaintiff’s motion for partial summary judgment on the issue of liability is granted upon a review of the moving papers and opposition submitted there to.
This action arises from a motor vehicle in which the plaintiff alleges that her vehicle was moving slowly, due to traffic, when it was hit in the rear by the defendant’s vehicle.
“It is well settled that a rear end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the driver of the rear vehicle, and imposes a duty on the part of the operator of the moving vehicle to come forward with an adequate non-negligent explanation for the accident”( Cabrera v. Rodriguez, 72 AD3d 553, 553 [1st Dept 201O).
In support, movants annexed copies of the parties deposition transcripts.
Defendant’s opposition that plaintiff stopped short does not raise an issue of fact. While such an allegation may raise an issue of fact in the Second Department (see Gaeta v. Carter, 6 AD3d 576, 577 [2d Dept 2004), it is not sufficient to raise an issue of fact in the First Department (see Cabrerra, at 553).
Accordingly, the plaintiffs’ motion for partial summary judgment on the issue of liability is granted.
This constitutes the decision and order of the Court.
Dated: January 25, 2012
Hon. Norma Ruiz, J.S.C