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

1324
CA 13-02003
PRESENT: SCUDDER, P.J., PERADOTTO, CARNI, LINDLEY, AND SCONIERS, JJ.


FRANKLIN TATE, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

TIMOTHY L. BROWN, DEFENDANT-RESPONDENT.


LOUIS ROSADO, BUFFALO, FOR PLAINTIFF-APPELLANT.

BURGIO KITA CURVIN & BANKER, BUFFALO (JAMES BURGIO OF COUNSEL), FOR
DEFENDANT-RESPONDENT.


     Appeal from an order and judgment (one paper) of the Supreme
Court, Erie County (John L. Michalski, A.J.), entered July 31, 2013.
The order and judgment, inter alia, granted the motion of defendant
for summary judgment and dismissed the complaint.

     It is hereby ORDERED that the order and judgment so appealed from
is unanimously modified on the law by denying the motion and
reinstating the complaint, and as modified the order and judgment is
affirmed without costs.

     Memorandum: Plaintiff commenced this negligence action seeking
damages for injuries he allegedly sustained when the vehicle in which
he was a passenger was struck from behind by a vehicle owned and
operated by defendant. Although plaintiff asserted in his bill of
particulars that he sustained a serious injury under two categories of
serious injury, he thereafter asserted that he sustained a serious
injury under only one category, i.e., a significant limitation of use
of a body function or system (see Insurance Law § 5102 [d]). Supreme
Court granted defendant’s motion for summary judgment dismissing the
complaint on the ground that plaintiff did not sustain a serious
injury, and denied plaintiff’s cross motion for summary judgment on
the issues of serious injury and negligence, i.e., the issue of
liability (see generally Ruzycki v Baker, 301 AD2d 48, 51). We agree
with plaintiff that the court erred in granting defendant’s motion,
and we therefore modify the order and judgment accordingly.
Initially, we conclude that defendant failed to meet his initial
burden of presenting evidence in admissible form establishing that
plaintiff did not sustain a serious injury that was causally related
to the accident in question (see Fisher v Hill, 114 AD3d 1193, 1193-
1194, lv denied 23 NY3d 909; see generally Zuckerman v City of New
York, 49 NY2d 557, 562). In support of his motion, defendant
submitted the reports of four physicians who examined plaintiff on
behalf of defendant. In one of those reports, the physician noted
                                 -2-                          1324
                                                         CA 13-02003

that MRIs taken of plaintiff show that he has herniated and bulging
discs and has range of motion limitations with respect to his cervical
and lumbar spine, which were quantified and determined to be not
insignificant. The physician stated with respect to causation that,
“[b]ased on the history provided by the [plaintiff], it is apparent
that the injuries sustained and the reported accident, are causally
related.”

     In the second report submitted by defendant, the orthopedic
surgeon likewise noted the herniated and bulging discs and concluded
that plaintiff had range of motion limitations in his cervical spine.
The orthopedic surgeon further concluded that “there is a causal
relationship between the accident of record and the [plaintiff’s]
reported symptomatology.” Thus, as noted, neither physician opined
that plaintiff’s injuries were not causally related to the subject
accident. Although the two other physicians who examined plaintiff on
defendant’s behalf concluded that he did not sustain a serious injury
in the accident and that his claimed limitations arise from
preexisting injuries, the conflict between the reports of those
physicians and those of the other two physicians who examined
plaintiff on defendant’s behalf creates an issue of fact. Defendant
therefore failed to meet his initial burden of establishing his
entitlement to judgment as a matter of law, and “the burden never
shifted to plaintiff to raise a triable issue of fact” (Houston v
Geerlings, 83 AD3d 1448, 1450; see generally Alvarez v Prospect Hosp.,
68 NY2d 320, 324).

     Plaintiff has abandoned that portion of his cross motion seeking
summary judgment on the issue of serious injury. We agree with
defendant, however, that the court properly denied that part of
plaintiff’s cross motion for summary judgment on the issue of
negligence. It is well settled that “a rear-end collision with a
stopped vehicle establishes a prima facie case of negligence on the
part of the driver of the rear vehicle” (Pitchure v Kandefer Plumbing
& Heating, 273 AD2d 790, 790; see Leal v Wolff, 224 AD2d 392, 393).
“In order to rebut the presumption [of negligence], the driver of the
rear vehicle must submit a non[]negligent explanation for the
collision” (Pitchure, 273 AD2d at 790; see Herdendorf v Polino, 43
AD3d 1429, 1429). “ ‘One of several nonnegligent explanations for a
rear-end collision is a sudden stop of the lead vehicle’ . . . , and
such an explanation ‘is sufficient to overcome the inference of
negligence and preclude an award of summary judgment’ ” (Brooks v High
St. Professional Bldg., Inc., 34 AD3d 1265, 1266; see Danner v
Campbell, 302 AD2d 859, 859). Here, defendant testified at his
deposition that the vehicle in which plaintiff was a passenger stopped
“suddenly” in the traffic lane in front of him, and that he could not
stop in time to avoid a collision, while the driver of plaintiff’s
vehicle offered contrary testimony at her deposition. Thus, there is
an issue of fact sufficient to defeat that part of plaintiff’s cross
motion.

Entered:   February 6, 2015                     Frances E. Cafarell
                                                Clerk of the Court
