Diamond v. CominsDiamond v. Comins
Published by New York State Law Reporting Bureau pursuant to
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Law Office of Ryan S. Goldstein, PLLC, Bronx, NY, for appellant.
Burke, Conway & Steifeld (Mauro Lilling Naparty LLP, Woodbury, NY [Seth M. Weinberg and Anthony F. DeStefano], of counsel), for respondents.
DECISION & ORDER
In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Westchester County (Charles D. Wood, J.), dated November 4, 2019. The order, insofar as appealed from, denied those branches of the plaintiff‘s motion which were for summary judgment on the issue of liability insofar as asserted against the defendants Justin K. Comins and Northline Utilities, LLC, and dismissing their first affirmative defense, alleging comparative negligence.
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and those branches of the plaintiff‘s motion which were for summary judgment on the issue of liability insofar as asserted against the defendants Justin K. Comins and Northline Utilities, LLC, and dismissing their first affirmative defense, alleging comparative negligence, are granted.
On June 30, 2017, at about 11:20 a.m., the plaintiff‘s vehicle was struck in the rear by a vehicle operated by the defendant Justin K. Comins, in Westchester County. Comins’ vehicle was leased by his employer, the defendant Northline Utilities, LLC (hereinafter Northline Utilities), from the defendant Global Rental Company, Inc. The plaintiff subsequently commenced this action against the defendants. The Supreme Court, inter alia, denied, as premature, those branches of the plaintiff‘s motion which were for summary judgment on the issue of liability insofar as asserted against Comins and Northline Utilities and dismissing their first affirmative defense, alleging comparative negligence. The plaintiff appeals.
“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” (Nsiah-Ababio v Hunter, 78 AD3d 672, 672; see Arslan v Costello, 164 AD3d 1408, 1409). A rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the
Here, in support of her motion, the plaintiff submitted, among other things, her own affidavit, the affidavit of a nonparty witness, and a certified police accident report, which demonstrated, prima facie, that Comins negligently struck the plaintiff‘s stopped vehicle in the rear and that his negligence was a proximate cause of the accident (see Morgan v Flippen, 173 AD3d 735, 736; Odetalla v Rodriguez, 165 AD3d 826, 827; Arslan v Costello, 164 AD3d at 1409). The plaintiff also demonstrated, prima facie, that she was not comparatively at fault in the happening of the accident (see Lopez v Dobbins, 164 AD3d 776, 777).
In opposition to the motion, the defendants submitted Comins’ affidavit. Contrary to the plaintiff‘s contention, Comins’ affidavit did not contradict his prior statement to the police (see generally Valentin v Parisio, 119 AD3d 854, 855; Jahangir v Logan Bus Co., Inc., 89 AD3d 1064; Kievman v Philip, 84 AD3d 1031, 1033). Nevertheless, it was insufficient to raise a triable issue of fact.
The plaintiff‘s motion was not premature (see
Accordingly, the Supreme Court should have granted those branches of the plaintiff‘s motion which were for summary judgment on the issue of liability insofar as asserted against Comins and Northline Utilities and dismissing their first affirmative defense, alleging comparative negligence.
CHAMBERS, J.P., AUSTIN, MILLER and WOOTEN, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court