Niedzwiecki v Yeates, 2019 NY Slip Op 06249 (4th Dept. 2019)
Another Fourth Department case that just makes you think, what the heck. Rear-end collision, which means rear-most driver is liable absent a non-negligent explanation. Here, it was the lead vehicle stopping short. I would note that this explanation in the first and second department without compelling objective evidence that rear-most driver was not negligent or the short stop was unreasonable would not defeat a summary judgment motion.
That said, the Fourth Department says there is a triable issue of fact. This would not be true in downstate New Yorj Anyway, this is where the case just gets crazy.
“Here, plaintiff failed to meet her initial burden on the cross motion inasmuch as she submitted the deposition testimony of defendant, in which he ” provided a nonnegligent explanation for the collision,’ ” i.e., that the collision occurred when plaintiff stopped abruptly in front of his vehicle after a nonparty vehicle suddenly pulled in front of plaintiff’s vehicle (Gardner v Chester, 151 AD3d 1894, 1896 [4th Dept 2017]; see Rosario v Swiatkowski, 101 AD3d 1609, 1609 [4th Dept 2012]). Thus, plaintiff’s own submissions raise “a triable issue of fact as to whether a nonnegligent explanation exists for the rear-end collision” (Bell v Brown, 152 AD3d 1114, 1115 [3d Dept 2017]; see Rosario, 101 AD3d at 1609-1610; see also Macri, 164 AD3d at 1643; Tate, 125 AD3d at 1398-1399).
We reject defendants’ contention, however, that the court erred in granting the cross motion with respect to the affirmative defense based on the emergency doctrine. Plaintiff met her initial burden of establishing that the emergency doctrine is not applicable to the facts of this case, and defendants failed to raise a triable issue of fact (see generally Shehab v Powers, 150 AD3d 918, 920 [2d Dept 2017]).
Finally, we reject defendants’ further contention that the court erred in granting the cross motion with respect to the affirmative defense of comparative negligence. Plaintiff met her initial burden of establishing that she was free from comparative negligence by submitting evidence that she was required to stop short in front of defendant’s vehicle in order to avoid colliding with the nonparty vehicle that suddenly pulled in front of her vehicle. In opposition, defendants failed to submit “evidentiary proof in admissible form” sufficient to raise an issue of fact to defeat that part of the cross motion (Zuckerman v City of New York, 49 NY2d 557, 562 [1980]).”
I would love for this case to be certified to the Court of Appeals.
