Phillip v D&D Carting Co., Inc., ___ AD3d ___, ___ NYS3d ___, 2015 NY Slip Op 09084 [2d Dept., 2015]

The Second Department reminds the bench that the mere fact of a rear-end collision does not automatically result in summary judgment, not even into a stopped vehicle and not even for a passenger in the stopped vehicle. Also, that CPLR 3212 (g) allows the court, even when denying summary judgment, to ascertain from the papers before it “what facts are not in dispute or are incontrovertible”, and in this way limit the issues at trial.

The stopped vehicle here was a passenger van, discharging passengers at a Brooklyn intersection. The rear of the van protruded into the traffic lane. The plaintiff was a passenger, belted into a seat in the last row. The rear-ending vehicle was a garbage truck. The plaintiff moved for summary judgment prior to depositions, against the owner and the driver of the truck. Plaintiff’s motion offered as proof the fact that she operated neither vehicle, was a passenger in the stopped vehicle, and so could not herself be at fault. The truck driver submitted an affidavit, in which he explained that he applied his brakes, but that the truck skidded on oil on the pavement. Supreme Court granted the plaintiff summary judgment, but the Appellate Division reversed.

Certainly, it is the rule that a rear-end collision into a stopped vehicle is enough to create an inference of negligence, and places the burden on the driver of the rear-ending vehicle to rebut the inference with a non-negligent explanation. The plaintiff must also establish his freedom from contributory negligence.

The plaintiff thus established her prima facie case on her motion, but the truck driver’s affidavit showed a non-negligent explanation, which was sufficiently detailed given the pre-deposition posture of the action. There was a triable issue of fact precluding summary judgment.

No party claimed that the plaintiff was contributorily negligent, since she was seat-belted in the last row of the van. Therefore, it was appropriate under CPLR 3212 (g) for the court to order that she was free from contributory negligence in the happening of the accident.