

Bowen v Farrell (2016 NY Slip Op 04900)





Bowen v Farrell


2016 NY Slip Op 04900


Decided on June 22, 2016


Appellate Division, Second Department


Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.


This opinion is uncorrected and subject to revision before publication in the Official Reports.



Decided on June 22, 2016
SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Second Judicial Department

REINALDO E. RIVERA, J.P.
JEFFREY A. COHEN
JOSEPH J. MALTESE
HECTOR D. LASALLE, JJ.


2015-10691
 (Index No. 23488/13)

[*1]Carlton A. Bowen, respondent,
v Paul J. Farrell, appellant.


Abamont & Associates (Hannum Feretic Prendergast & Merlino, LLC, New York, NY [Michael J. White], of counsel), for appellant.
Subin Associates, LLP, New York, NY (Robert J. Eisen, Gregory T. Cerchione, and Pollack, Pollack, Isaac & DiCicco, LLP [Brian J. Isaac], of counsel), for respondent.

DECISION & ORDER
In an action to recover damages for personal injuries, the defendant appeals from an order of the Supreme Court, Queens County (Dufficy, J.), dated January 5, 2015, which granted the plaintiff's motion for summary judgment on the issue of liability.
ORDERED that the order is affirmed, with costs.
A rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the operator of the rear vehicle, requiring that operator to come forward with evidence of a nonnegligent explanation for the collision in order to rebut the inference of negligence (see Tutrani v County of Suffolk, 10 NY3d 906, 908; Drakh v Levin, 123 AD3d 1084, 1085; Lisetskiy v Weiss, 123 AD3d 775, 776). "To prevail on a motion for summary judgment on the issue of liability, a plaintiff must establish, prima facie, not only that the opposing party was negligent, but also that the plaintiff was free from comparative fault" (Phillip v D & D Carting Co., Inc., 136 AD3d 18, 22; see McLaughlin v Lunn, 137 AD3d 757).
Here, in support of his motion for summary judgment on the issue of liability, the plaintiff relied on his own deposition testimony and the deposition testimony of the defendant. Although the parties provided conflicting testimony as to the facts surrounding the accident, under either version of the accident, the defendant's negligence in the operation of his vehicle was the sole proximate cause of the accident (see Clarke v Phillips, 112 AD3d 872, 873-874; Gibson v Levine, 95 AD3d 1071, 1072; Giangrasso v Callahan, 87 AD3d 521, 522). Accordingly, the plaintiff made a prima facie showing of his entitlement to judgment as a matter of law on the issue of liability (see Alvarez v Prospect Hosp., 68 NY 2d 320, 324). In opposition, the defendant failed to raise a triable issue of fact.
Accordingly, the Supreme Court properly granted the plaintiff's motion for summary judgment on the issue of liability.
RIVERA, J.P., COHEN, MALTESE and LASALLE, JJ., concur.
ENTER:
Aprilanne Agostino
Clerk of the Court


