Marsella v. Sound Distributing Corp.

Appellate Division of the Supreme Court of New York

Marsella v. Sound Distributing Corp.

248 A.D.2d 683, 670 N.Y.S.2d 559, 1998 N.Y. App. Div. LEXIS 3447

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMarch 30, 1998

StatusPublished

Cited by11 cases

This text of 248 A.D.2d 683 (Marsella v. Sound Distributing Corp.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Marsella v. Sound Distributing Corp., 248 A.D.2d 683, 670 N.Y.S.2d 559, 1998 N.Y. App. Div. LEXIS 3447 (N.Y. Ct. App. 1998).

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Opinion

—In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Westchester County (Donovan, J.), entered May 20, 1997, which denied its motion for summary judgment dismissing the complaint.

Ordered that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.

A rear-end collision with a stopped automobile establishes a prima facie case of negligence on the part of the operator of the moving vehicle and imposes a duty on the operator of the moving vehicle to explain how the accident occurred (see, Johnston v El-Deiry, 230 AD2d 715). The operator of the moving vehicle is required to rebut the inference of negligence created by the unexplained rear-end collision (see, Pfaffenbach v White Plains [684]*684Express Corp., 17 NY2d 132, 135) since he or she is in the best position to explain whether the collision was due to a mechanical failure, a sudden stop of the vehicle ahead, an unavoidable skidding on wet pavement, or some other reasonable cause (see, Leal v Wolff, 224 AD2d 392; Barile v Lazzarini, 222 AD2d 635).

In this case, the plaintiffs vehicle struck a parked truck owned by the defendant. The explanation proffered by the plaintiff, that the sun was shining into her eyes, was insufficient to raise a triable issue of fact as to the negligence of the defendant’s employee in parking the truck at the location where the accident occurred. Assuming, arguendo, that the defendant’s truck was illegally parked at the time of the accident, the proximate cause of the accident was the plaintiffs failure to control her vehicle and to see that which, under the facts and circumstances, she should have seen by the proper use of her senses (see, McCarthy v Miller, 139 AD2d 500).

O’Brien, J. P., Pizzuto, Friedmann and McGinity, JJ., concur.

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—In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Westchester County (Donovan, J.), entered May 20, 1997, which denied its motion for summary judgment dismissing the complaint.

Ordered that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.

A rear-end collision with a stopped automobile establishes a prima facie case of negligence on the part of the operator of the moving vehicle and imposes a duty on the operator of the moving vehicle to explain how the accident occurred (see, Johnston v El-Deiry, 230 AD2d 715). The operator of the moving vehicle is required to rebut the inference of negligence created by the unexplained rear-end collision (see, Pfaffenbach v White Plains [684]*684Express Corp., 17 NY2d 132, 135) since he or she is in the best position to explain whether the collision was due to a mechanical failure, a sudden stop of the vehicle ahead, an unavoidable skidding on wet pavement, or some other reasonable cause (see, Leal v Wolff, 224 AD2d 392; Barile v Lazzarini, 222 AD2d 635).

In this case, the plaintiffs vehicle struck a parked truck owned by the defendant. The explanation proffered by the plaintiff, that the sun was shining into her eyes, was insufficient to raise a triable issue of fact as to the negligence of the defendant’s employee in parking the truck at the location where the accident occurred. Assuming, arguendo, that the defendant’s truck was illegally parked at the time of the accident, the proximate cause of the accident was the plaintiffs failure to control her vehicle and to see that which, under the facts and circumstances, she should have seen by the proper use of her senses (see, McCarthy v Miller, 139 AD2d 500).

O’Brien, J. P., Pizzuto, Friedmann and McGinity, JJ., concur.

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Bluebook (online)

248 A.D.2d 683, 670 N.Y.S.2d 559, 1998 N.Y. App. Div. LEXIS 3447, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marsella-v-sound-distributing-corp-nyappdiv-1998.

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