Pitchure v. Kandefer Plumbing & Heating

273 A.D.2d 790, 710 N.Y.S.2d 259, 2000 N.Y. App. Div. LEXIS 6719

Opinions

Order reversed on the law without costs and motion denied. Memorandum: Plaintiff commenced this action to recover damages for personal injuries that she sustained when her stopped vehicle was struck from behind by a vehicle owned by defendant Kan-defer Plumbing & Heating and driven by defendant Brian C. Martin. Supreme Court erred in granting plaintiff’s motion for partial summary judgment on liability. It is well established that a rear-end collision with a stopped vehicle establishes a prima facie case of negligence on the part of the driver of the rear vehicle (see, Diller v City of N. Y. Police Dept., 269 AD2d 143; Baron v Murray, 268 AD2d 495; see also, Downs v Toth, 265 AD2d 925). The presumption of negligence imposes a duty of explanation with respect to the operation of the rear vehicle (see, Levine v Taylor, 268 AD2d 566, citing Pfaffenbach v White Plains Express Corp., 17 NY2d 132, 135, and Gambino v City of New York, 205 AD2d 583). In order to rebut the presumption, the driver of the rear vehicle must submit a non-negligent explanation for the collision (see, Diller v City of N. Y. Police Dept., supra; Hanak v Jani, 265 AD2d 453). Here, Martin submitted a non-negligent explanation for the collision (see, Hanak v Jani, supra), and it is for the jury to determine whether he breached his duty to keep a proper lookout and maintain a reasonably safe rate of speed and distance.

All concur except Kehoe, J., who dissents and votes to affirm, in the following Memorandum.