Balgobin v. McKenzie

213 A.D.3d 893

182 N.Y.S.3d 669 (Mem)

Khemraj BALGOBIN, appellant,

v.Altano MCKENZIE, et al., respondents.

2020–09003

Index No. 721098/19

Supreme Court, Appellate Division, Second Department, New York.

Submitted—January 12, 2023

February 22, 2023

Wingate, Russotti, Shapiro & Halperin, LLP, New York, NY (David M. Schwarz and Jay Wechsler of counsel), for appellant.

BETSY BARROS, J.P., LARA J. GENOVESI, WILLIAM G. FORD, HELEN VOUTSINAS, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Leonard Livote, J.), entered October 2, 2020. The order, insofar as appealed from, denied that branch of the plaintiff's motion which was for summary judgment on the issue of liability.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the plaintiff's motion which was for summary judgment on the issue of liability is granted.

On May 10, 2019, a vehicle operated by the plaintiff was struck in the rear by a vehicle operated by the defendant Altano McKenzie and owned by the defendant Ecolab, Inc. The plaintiff allegedly sustained personal injuries as a result of the accident and commenced this action against the defendants. After joinder of issue, but prior to the completion of discovery, the plaintiff moved, inter alia, for summary judgment on the issue of liability. The Supreme Court, among other things, denied that branch of the motion. 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 A.D.3d 672, 672, 913 N.Y.S.2d 659 ; see Vehicle and Traffic Law § 1129[a] ; Newfeld v. Midwood Ambulance & Oxygen Serv., Inc., 204 A.D.3d 813, 814, 164 N.Y.S.3d 497 ). "Accordingly, a rear-end collision establishes a prima facie case of negligence on the part of the operator of the rear vehicle, thereby requiring that operator to rebut the inference of negligence by providing a non-negligent explanation for the collision" ( Scheker v. Brown, 85 A.D.3d 1007, 1007, 925 N.Y.S.2d 528 ; see Mahmud v. Feng Ouyang, 208 A.D.3d 861, 174 N.Y.S.3d 721 ). "A plaintiff is no longer required to show freedom from comparative fault to establish her or his prima facie entitlement to judgment as a matter of law on the issue of liability" ( Xin Fang Xia v. Saft, 177 A.D.3d 823, 825, 113 N.Y.S.3d 249 ; see Rodriguez v. City of New York, 31 N.Y.3d 312, 323, 76 N.Y.S.3d 898, 101 N.E.3d 366 ; Perez v. Persad, 183 A.D.3d 771, 771–772, 123 N.Y.S.3d 683 ).

Here, the plaintiff established his prima facie entitlement to judgment as a matter of law through the submission of his affidavit, in which he averred that his vehicle was struck in the rear by the defendants’ vehicle (see ...