The following numbered papers were used on this (these) motion(s): NYSCEF Document Numbers 20-40. ORDER Upon the foregoing papers, the Court having elected to determine the within motion(s) on submission pursuant to 22 NYCRR 202.8-f and IAS Part 2 Rules, Part I (Motions & Special Proceedings), Subpart C (Appearances), Section 6 (Personal Appearances) (“All motions presumptively are to be argued in person unless the Court informs the parties at least two days in advance that it has made a sua sponte determination that a motion will be determined on submission.),” and due deliberation having been had thereon, It is hereby ORDERED as follows: This is a motion by Defendants Jose Rodriguez and Deyanora Rodriguez, both owners, Deyanora being the driver, of a car struck in the rear by Plaintiff, while operating his motor bike on September 21, 2018. The motion seeks summary judgment dismissing Plaintiff’s complaint on the ground that Plaintiff’s struck Defendants’ vehicle in the rear. There is no question but that Plaintiff struck Defendants’ vehicle in the rear. “‘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 [2010]; see Vehicle and Traffic Law §1129 [a]; see generally Pawlukiewicz v. Boisson, 275 AD2d 446, 447 [2000]; Maxwell v. Lobenberg, 227 AD2d 598, 598-599 [1996]). 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 nonnegligent explanation for the collision (see Tutrani v. County of Suffolk, 10 NY3d 906, 908 [2008]; Klopchin v. Masri, 45 AD3d 737 [2007]; Starace v. Inner Circle Qonexions, 198 AD2d 493 [1993]; Edney v. Metropolitan Suburban Bus Auth., 178 AD2d 398, 399 [1991]). A nonnegligent explanation may include evidence of a mechanical failure, a sudden stop of the vehicle ahead, an unavoidable skidding on wet pavement, or any other reasonable cause (see DeLouise v. S.K.I. Wholesale Beer Corp., 75 AD3d 489, 490 [2010]).” (Ortiz v. Hub Truck Rental Corp., 82 AD3d 725 [2d Dept 2011].) “‘A nonnegligent explanation may include that a vehicle made a sudden lane change in front of a defendant’s vehicle, forcing the defendant to stop suddenly’ (Cruz v. Valentine Packaging Corp., 167 AD3d 707, 708 [2018]; see Ortiz v. Hub Truck Rental Corp., 82 AD3d 725, 726 [2011]; Reitz v. Seagate Trucking, Inc., 71 AD3d 975, 976 [2010])” (Flood v. Fillas, 190 AD3d 828 [2d Dept 2021]). Here, Defendant Deyanora Rodriguez testified at her examination before trial that she was travelling on Atlantic Avenue when she turned right into a Dunkin Donuts parking lot. Her vehicle was struck in the rear by Plaintiff. This establishes a prima facie case of negligence on the part of Plaintiff. Plaintiff then points to testimony of Defendant Deyanora Rodriguez that she saw Plaintiff on his bike in front of her by about two car lengths, that she then got ahead of him two or three seconds, that she did not honk at him, that she started turning, and that she was impacted in the rear bumper. Plaintiff argues, therefore, that since Defendant Deyanora Rodriguez cut in front of him there is a material issue of fact and that she violated Vehicle and Traffic Law §1122 (a) by unsafely overtaking a bicycle, and §1136 (a) by turning into a private driveway unsafely. This Court finds that since there is record evidence that Defendant Deyanora Rodriguez swerved around and in front of Plaintiff, a material issue of facts exists as to who is liable for the collision by Plaintiff into Defendants’ vehicle. Indeed she might have violated the Vehicle and Traffic Law provisions cited by Plaintiff. Not every rear-end collision is the exclusive fault of the rearmost driver (see Houslin v. New York City Transit Authority, 212 AD3d 790 [2d Dept 2023]; Joseph-Felix v. Hersh, 208 AD3d 571 [2d Dept 2022]). “It is well established that negligence cases do not generally lend themselves to resolution by summary judgment, since that remedy is appropriate only where the negligence or lack of negligence of the defendant is established as a matter of law” (Chahales v. Garber, 195 AD2d 585, 586 [2d Dept 1993]). Here, due to the material issues in dispute, a jury will have to hear the evidence and determine whether either or both of the parties are liable; if both, what percentage of fault each one bears. Accordingly, Defendants’ motion seeking summary judgment dismissing the complaint is DENIED. CPLR 5513 (a) provides: “Time to take appeal as of right. An appeal as of right must be taken within thirty days after service by a party upon the appellant of a copy of the judgment or order appealed from and written notice of its entry, except that when the appellant has served a copy of the judgment or order and written notice of its entry, the appeal must be taken within thirty days thereof.” Dated: June 21, 2024
