Lynch v. Fleming

Dec 30, 1985
Versions:115 A.D.2d 712
496 N.Y.S.2d 447
1985 N.Y. App. Div. LEXIS 55154

In an action to recover damages for personal injuries, etc., plaintiffs appeal from a judgment of the Supreme Court, Kings County (Morton, J.), entered January 30, 1985, dismissing plaintiffs’ complaint upon defendants’ motion at the close of plaintiffs’ case.

Judgment reversed, on the law, and a new trial granted, with costs to abide the event.

Plaintiff Linda Lynch was a passenger, with her infant son, in an automobile driven by her husband on the Cross Island Parkway near Bell Boulevard in Queens County. Upon noticing a stopped car ahead in their lane, her husband removed his foot from the accelerator and gradually began to slow down. Before they could move to another lane, their car was struck in the rear and propelled forward into the stopped vehicle. At the scene of the accident, the driver of the car which struck them identified himself to Mrs. Lynch as defendant Michael Fleming.

In addition to this proof, the plaintiffs offered in evidence the MV 104 report made by defendant Michael Fleming. Although the trial court ruled it inadmissable, we find it to be properly certified and receivable to show contact between the Lynch and Fleming vehicles (see, Carter v Castle Elec. Contr. Co., 26 AD2d 83). Given the flexibility as to what constitutes negligence in situations involving moving vehicles, a prima facie case was established (see, Pfaffenbach v White Plains Express Corp., 17 NY2d 132). Lazer, J. P., Thompson, O’Con-nor, Rubin and Kunzeman, JJ., concur.