STATON v. ILIC

Ordered that the order is reversed, on the law, with one bill of costs payable to the appellants appearing separately and filing separate briefs, and the plaintiffs' motion for summary judgment on the issue of liability and the counterclaim defendant's cross motion for summary judgment dismissing the counterclaim are granted.

A rear-end collision with a stopped vehicle creates a prima facie case of negligence against the operator of the offending vehicle, thereby requiring that operator to rebut the inference of negligence by providing a nonnegligent explanation for the collision (see Ramirez v Konstanzer, 61 A.D.3d 837 [2009]; Arias v Rosario, 52 A.D.3d 551 [2008]). If the operator of the moving vehicle cannot come forward with evidence to rebut the inference of negligence, the occupants and owner of the stationary vehicle are entitled to summary judgment on the issue of liability (see Lundy v Llatin, 51 A.D.3d 877 [2008]; Kimyagarov v Nixon Taxi Corp., 45 A.D.3d 736 [2007]).

The plaintiffs established their entitlement to judgment as a matter of law by submitting affidavits wherein they averred that the vehicle operated by Alberto Zorrilla, the plaintiff/counterclaim defendant, in which the plaintiff Dione Staton was a passenger, was stopped when it was struck in the rear by the vehicle operated by the defendant Dragos Lav Ilic and owned by the defendant Snezana Ilic (see Garner v Chevalier Transp. Corp., 58 A.D.3d 802 [2009]; Jumandeo v Franks, 56 A.D.3d 614 [2008]; Neidereger v Misuraca, 27 A.D.3d 537 [2006]; Rainford v Sung S. Han, 18 A.D.3d 638 [2005]; Russ v Investech Sec., 6 A.D.3d 602 [2004]). In opposition, the defendants failed to provide a nonnegligent explanation for the collision. The defendant driver's mere assertion that the Zorrilla vehicle came to a sudden stop while traveling in heavy traffic was insufficient to raise a triable issue of fact (see Jumandeo v Franks, 56 A.D.3d 614 [2008]; Neidereger v Misuraca, 27 A.D.3d 537 [2006]; Rainford v Sung S. Han, 18 A.D.3d 638 [2005]; Russ v Investech Sec., 6 A.D.3d 602 [2004]). Similarly, in response to Zorrilla's demonstration of his entitlement to judgment as a matter of law dismissing the counterclaim, the defendants failed to raise a triable issue of fact. Contrary to the defendants' contention, the motions were not premature (see CPLR 3212 [f]; Kimyagarov v Nixon Taxi Corp., 45 A.D.3d 736 [2007]). Accordingly, the Supreme Court should have granted the motion and the cross motion.