75 A.D.3d 489 (2010)

904 N.Y.S.2d 761

MICHAEL A. DeLOUISE, Respondent, v. S.K.I. WHOLESALE BEER CORP. et al., Appellants. (And a Third-Party Action.)

Appellate Division of the Supreme Court of New York, Second Department.

Decided July 6, 2010.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, and those branches of the plaintiff's motion which were for summary judgment on the issue of liability and for leave to amend the complaint to assert additional causes of action to recover damages for negligent entrustment, negligent hiring, and negligent retention are denied.

This action arises out of a motor vehicle accident that occurred in a Manhattan parking garage on December 13, 2007, when a truck operated by the defendant Jose Luis Lopez struck the rear of the plaintiff's vehicle. As a general rule, a rear-end collision with a stopped or stopping vehicle creates a prima facie case of negligence with respect to the operator of the rearmost vehicle, imposing a duty of explanation on that operator to excuse the collision either through a mechanical failure, a sudden stop of the vehicle ahead, an unavoidable skidding on a wet pavement, or any other reasonable cause (see Klopchin v Masri, 45 A.D.3d 737, 737 [2007]; Leal v Wolff, 224 A.D.2d 392, 393 [1996]).

In opposition to the plaintiff's prima facie showing of his entitlement to judgment as a matter of law on the issue of liability, Lopez submitted an affidavit in which he stated that it was snowing when he entered the parking garage, that the entrance of the parking garage had a ramp that curved to the right and sloped downward, and that, although he was driving "slowly and with caution," the "slick, wet surface condition of the garage floor" caused his vehicle to react as "if it was covered with black ice on the surface that was not visible to me." He further stated that he "was surprised by the existence of the slippery conditions that were not visible to one driving down the ramp" because the ramp was not otherwise exposed to the elements. He also noted that he observed no sand or ice melt spread over the surface of the ramp.

In addition, the defendants also submitted meteorological records which showed that it was snowing, and that the temperatures were falling from above freezing to below freezing on the date of the accident. Under the circumstances, the defendant's explanation was sufficient to defeat the plaintiff's motion for summary judgment on the issue of liability (see Briceno v Milbry, 16 A.D.3d 448 [2005]; Simpson v Eastman, 300 A.D.2d 647 [2002]; Artis v Jamaica Buses, 262 A.D.2d 511 [1999]).

The plaintiff also sought leave to amend the complaint to assert the additional causes of action of negligent entrustment, negligent hiring, and negligent retention. Although CPLR 3025 (b) provides that leave to serve an amended pleading should be freely given (see AYW Networks v Teleport Communications Group, 309 A.D.2d 724 [2003]; Charleson v City of Long Beach, 297 A.D.2d 777 [2002]; Holchendler v We Transp., 292 A.D.2d 568 [2002]), leave to amend should be denied where the proposed amendment is palpably insufficient as a matter of law or is totally devoid of merit (see Morton v Brookhaven Mem. Hosp., 32 A.D.3d 381 [2006]; Thone v Crown Equip. Corp., 27 A.D.3d 723 [2006]). Here, the Supreme Court improvidently exercised its discretion in granting the plaintiff leave to amend his complaint since the plaintiff's motion papers were completely devoid of any factual basis for the proposed amendments.


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