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

10
CA 12-01385
PRESENT: SCUDDER, P.J., CENTRA, CARNI, LINDLEY, AND SCONIERS, JJ.


WILLIAM JOSEPH DEANGELIS AND KAREN DEANGELIS,
PLAINTIFFS-RESPONDENTS-APPELLANTS,

                    V                             MEMORANDUM AND ORDER

MARTENS FARMS, LLC,
DEFENDANT-APPELLANT-RESPONDENT,
AND KRISTIE E. MARION, DEFENDANT-RESPONDENT.
(APPEAL NO. 1.)


GOLDBERG SEGALLA LLP, SYRACUSE (KENNETH M. ALWEIS OF COUNSEL), FOR
DEFENDANT-APPELLANT-RESPONDENT.

SUGARMAN LAW FIRM, LLP, SYRACUSE (ESAM AHMAD ELBADAWI OF COUNSEL), FOR
PLAINTIFFS-RESPONDENTS-APPELLANTS.

BARTH SULLIVAN BEHR, SYRACUSE (DAVID WALSH OF COUNSEL), FOR
DEFENDANT-RESPONDENT.


     Appeal and cross appeal from an order of the Supreme Court,
Cayuga County (Thomas G. Leone, A.J.), entered December 12, 2011.    The
order, among other things, denied the motion of defendant Martens
Farms, LLC for summary judgment.

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

     Memorandum: This personal injury action arises out of a motor
vehicle accident in which a vehicle operated by William Joseph
DeAngelis (plaintiff) was rear-ended by a vehicle operated by
defendant Kristie E. Marion. After the accident, it was discovered
that diesel fuel had been spilled onto the roadway shortly before the
accident by a truck owned by defendant Martens Farms, LLC (Martens),
which occurred when the truck’s fuel filter failed. We conclude that
Supreme Court properly denied both Martens’s motion for summary
judgment dismissing the amended complaint and all cross claims against
it and plaintiffs’ motion for partial summary judgment on the issue of
liability, i.e., negligence and serious injury (see Ruzycki v Baker,
301 AD2d 48, 51-52).

     Martens’s motion was based on the grounds, inter alia, that it
neither caused nor had notice of the defect that resulted in diesel
fuel being spilled on the roadway and that, in any event, the spilled
fuel was not a proximate cause of the accident as a matter of law.
                                 -2-                            10
                                                         CA 12-01385

Martens failed to meet its initial burden of establishing as a matter
of law that it neither caused the fuel leak nor had notice of a defect
in the leaking fuel filter. It is well settled that a moving party
“must affirmatively establish the merits of its cause of action or
defense and does not meet its burden by noting gaps in its opponent’s
proof” (Orcutt v American Linen Supply Co., 212 AD2d 979, 980; see
Lane v Texas Roadhouse Holdings, LLC, 96 AD3d 1364, 1364; Dodge v City
of Hornell Indus. Dev. Agency, 286 AD2d 902, 903). Even assuming,
arguendo, that Martens met its initial burden of establishing that the
spilled diesel fuel was not a proximate cause of the motor vehicle
accident by offering the affidavit of its accident reconstruction
expert, we conclude that plaintiffs raised an issue of fact by
submitting an affidavit of their own accident reconstruction expert.
As a result, “[t]he papers before the court on that issue ‘presented a
credibility battle between the parties’ experts, and issues of
credibility are properly left to a jury for its resolution’ ” (Baity v
General Elec. Co., 86 AD3d 948, 952; see Barbuto v Winthrop Univ.
Hosp., 305 AD2d 623, 624).

     We likewise conclude with respect to plaintiffs’ motion that,
just as there are issues of fact precluding summary judgment in
Martens’s favor, those same issues of fact require denial of that part
of plaintiffs’ motion for partial summary judgment against Martens
with respect to negligence, including proximate cause. In addition,
while the fact that Marion’s vehicle rear-ended plaintiff’s stopped
vehicle is prima facie evidence of Marion’s negligence, the presence
of diesel fuel on the road at the time of the accident rebuts the
presumption of negligence by providing a nonnegligent explanation for
the collision, thereby requiring denial of that part of plaintiffs’
motion for partial summary judgment against Marion with respect to
negligence (see Ramadan v Maritato, 50 AD3d 1620, 1621; see also
Dalton v Lucas, 96 AD3d 1648, 1649-1650). Lastly, even assuming,
arguendo, that plaintiffs met their initial burden in moving for
partial summary judgment on the issue of serious injury, the papers
submitted in opposition created an issue of fact regarding whether
plaintiff sustained a serious injury in this motor vehicle accident
(see Insurance Law § 5102 [d]; see generally Zuckerman v City of New
York, 49 NY2d 557, 562).




Entered:   March 15, 2013                      Frances E. Cafarell
                                               Clerk of the Court
