        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1315
CA 12-00965
PRESENT: SMITH, J.P., PERADOTTO, CARNI, SCONIERS, AND WHALEN, JJ.


MARK W. BOROWSKI, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

JEREMY J. PTAK, DEFENDANT-APPELLANT,
AND KELLY L. MCCULLOCH, DEFENDANT.


LAW OFFICE OF DANIEL R. ARCHILLA, BUFFALO (LAUREN M. YANNUZZI OF
COUNSEL), FOR DEFENDANT-APPELLANT.

STAMM LAW FIRM, WILLIAMSVILLE (BRIAN G. STAMM OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (Donna M.
Siwek, J.), entered March 15, 2012. The order, inter alia, denied the
motion of defendant Jeremy J. Ptak for summary judgment.

     It is hereby ORDERED that the order so appealed from is affirmed
without costs.

     Memorandum: Plaintiff commenced this action seeking damages for
personal injuries he sustained when the vehicle he was operating rear-
ended a vehicle operated by Jeremy J. Ptak (defendant), which in turn
rear-ended a vehicle operated by defendant Kelly L. McCulloch, which
had stopped in traffic. Defendant moved for summary judgment
dismissing the complaint against him, and in the alternative he sought
a bifurcated trial on liability and damages. Supreme Court denied
defendant’s motion insofar as it sought summary judgment dismissing
the complaint, but granted defendant the alternative relief requested.
We affirm.

    “A rear-end collision with a stopped or stopping vehicle creates a
prima facie case of negligence with respect to the operator of the
moving vehicle, and imposes a duty on the operator of the moving
vehicle to come forward with an adequate, [nonnegligent] explanation
for the accident” (Camarillo v Sandoval, 90 AD3d 593, 593 [internal
quotation marks omitted]; see Roll v Gavitt, 77 AD3d 1412, 1413;
Johnson v Yarussi Constr., Inc., 74 AD3d 1772, 1772-1773).

     Although defendant met his initial burden of establishing a prima
facie case of negligence on the part of plaintiff inasmuch as it is
undisputed that plaintiff’s vehicle rear-ended defendant’s stopped
vehicle, we conclude that plaintiff submitted evidence of an adequate
nonnegligent explanation for the collision (see Camarillo, 90 AD3d at
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                                                         CA 12-00965

593). While other cases have held that a party’s testimony that he or
she did not “see” the other vehicle’s brake lights illuminated before
rear-ending that vehicle does not alone establish the requisite
nonnegligent explanation for the collision (see Waters v City of New
York, 278 AD2d 408, 409; Barile v Lazzarini, 222 AD2d 635, 636-637),
those cases are distinguishable from this case. Here, plaintiff
testified at his deposition that he was unable to discern whether
defendant’s vehicle was stopped because defendant’s brake lights were
not activated. Plaintiff, however, also submitted the deposition
testimony of McCulloch and defendant in which they both described
traffic conditions on the date of the accident as “congested” and
“stop and go.” Additionally, plaintiff submitted evidence that
defendant stopped suddenly. Indeed, plaintiff testified at his
deposition that defendant apologized to plaintiff for the accident,
explaining that McCulloch had stopped suddenly and that defendant
“couldn’t help it.” That evidence, when viewed in the light most
favorable to the nonmoving party (see Nichols v Xerox Corp., 72 AD3d
1501, 1502), establishes a sufficient nonnegligent explanation for the
collision.

     The dissent characterizes defendant’s apology for the accident as
being exculpatory, rather than an admission of fault. Our differing
interpretations of that statement support our conclusion that issues
of fact exist that preclude summary judgment. Further, the dissent
emphasizes that, although plaintiff contends that the alleged sudden
stop of defendant’s vehicle provides a nonnegligent explanation for
the fact that his vehicle rear-ended defendant’s vehicle, plaintiff
attempts to establish defendant’s negligence by submitting defendant’s
alleged statement regarding the same nonnegligent explanation, i.e.,
McCulloch’s sudden stop caused defendant to stop suddenly. The
dissent’s assertion, however, is of no moment inasmuch as defendant,
not plaintiff, moved for summary judgment and defendant cannot meet
its burden by relying on “claimed deficienc[ies] in plaintiff[’s]
proof” (Strzelczyk v Palumbo, 101 AD3d 1769, 1770).

     All concur except SMITH, J.P., and CARNI, J., who dissent and vote
to reverse the order in accordance with the following Memorandum:
This appeal presents the somewhat novel circumstance of a plaintiff
seeking to recover damages for injuries he sustained after his vehicle
rear-ended another vehicle, which was driven by Jeremy J. Ptak
(defendant). Inasmuch as we conclude that plaintiff has not rebutted
the presumption of his own negligence created by the fact that his
vehicle rear-ended defendant’s vehicle, we respectfully disagree with
our colleagues and dissent. We would therefore reverse the order and
grant defendant’s motion for summary judgment dismissing the complaint
and all cross claims against him.

     It is not disputed that defendant’s vehicle came to a complete
stop before being rear-ended by plaintiff’s vehicle. Further,
defendant submitted the deposition testimony of defendant Kelly L.
McCulloch, in which she testified that defendant’s vehicle was at a
complete stop for “[a]bout half a minute to a minute” before it was
struck by plaintiff’s vehicle. Plaintiff offered no testimony or
competent evidence as to how long defendant’s vehicle had been stopped
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                                                         CA 12-00965

before his vehicle rear-ended defendant’s vehicle. Instead, plaintiff
testified at his deposition that he did not see defendant’s vehicle
until “a few seconds” before the impact. Remarkably, plaintiff
testified that he had “no idea” if defendant’s vehicle had been
traveling in front of his vehicle in the same lane before the
accident. Plaintiff also testified that the accident occurred during
“rush hour traffic” conditions, and both McCulloch and defendant
described the traffic conditions in their deposition testimony as
“congested” and “stop and go.”

     We conclude that plaintiff failed to submit the requisite
nonnegligent explanation for the collision and thus, as noted above,
plaintiff failed to rebut the presumption of his negligence created by
the fact that his vehicle rear-ended defendant’s vehicle (see Greene v
Sivret, 43 AD3d 1328, 1328). Even assuming, arguendo, that plaintiff
is correct that defendant’s brake lights were not working at the time
of the accident, we conclude that under the circumstances presented
here the alleged malfunctioning brake lights “would not adequately
rebut the inference of [plaintiff’s] negligence” (Farrington v New
York City Tr. Auth., 33 AD3d 332, 332; see Greene, 43 AD3d at 1329).
Moreover, plaintiff’s deposition testimony that he did not “see” any
illuminated brake lights on defendant’s vehicle before the collision
is not the equivalent of a factual assertion that defendant’s brake
lights were malfunctioning. The fact that plaintiff did not observe
any illuminated brake lights on defendant’s vehicle is also
insufficient to establish a triable issue of fact precluding summary
judgment in defendant’s favor (see Waters v City of New York, 278 AD2d
408, 409; Barile v Lazzarini, 222 AD2d 635, 636-637).

     Finally, we respectfully disagree with the implicit conclusion of
our colleagues that plaintiff, through what the majority characterizes
as an “apology,” submitted competent evidence of an admission of fault
by defendant. Plaintiff testified at his deposition that, at the
scene of the accident, defendant stated “I’m sorry. [McCulloch]
stopped all of a sudden. I couldn’t help it.” We do not interpret
those statements as an admission of fault by defendant for causing
plaintiff’s vehicle to rear-end defendant’s vehicle. Inasmuch as it
is undisputed that defendant safely stopped his vehicle without rear-
ending McCulloch’s vehicle and that defendant’s vehicle remained at a
complete stop for a half of a minute to a minute before being rear-
ended by plaintiff’s vehicle, we conclude that defendant’s statements
fail to raise a triable issue of fact as to defendant’s alleged
negligence. In our view, and when taken in context, defendant’s
statements are more fairly characterized as exculpatory in that they
assign blame to McCulloch rather than express an admission of fault on
the part of defendant. Moreover, we find it notable that, although
plaintiff contends that the alleged sudden stop of defendant’s vehicle
provides a nonnegligent explanation for the fact that his vehicle
rear-ended defendant’s vehicle, plaintiff attempts to establish
defendant’s negligence by submitting defendant’s alleged statement
regarding the same nonnegligent explanation, i.e., McCulloch’s sudden
stop caused defendant to stop suddenly.
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                                         CA 12-00965




Entered:   June 7, 2013         Frances E. Cafarell
                                Clerk of the Court
