Upon the reading and filing of the following papers in this matter: (1) Notice of Motion by plaintiff David Lemanczyk, filed May 16, 2019, and supporting papers; (2) Affirmation in Opposition by defendants Lauren Beth Blyer-Kurland and Jason M. Kurland, filed May 31, 2019, and supporting papers; it isORDERED that the motion for summary judgment pursuant to CPLR 3212 by plaintiff David Lemanczyk seeking an order for partial summary judgement on the issue of liability as against the defendants Lauren Beth Blyer-Kurland and Jason M. Kurland is granted.The instant action involves a motor vehicle accident, occurring on July 16, 2015, in which the motor vehicle owned by defendant Jason M. Kurland and operated by defendant Lauren Beth Blyer-Kurland with Mr. Kurland’s permission struck the rear of a vehicle owned and operated by plaintiff David Lemanczyk on Wolf Hill Road near its intersection with Old Country Road in the town of Huntington in Suffolk County. Plaintiff David Lemanczyk contends that his vehicle was stopped at a red traffic light when the vehicle operated by Blyer-Kurland struck Lemanczyk’s vehicle.Plaintiff David Lemanczyk now moves, pursuant to CPLR 3212, for partial summary judgment against the defendants (motion sequence 001) on the issue of liability, on the ground that it is beyond dispute that the proximate cause of the accident was the negligence of the defendant driver, Ms. Blyer-Kurland, that there is no triable issue of fact with respect to the defendants’ liability, and that he is entitled to partial summary judgment in his favor on the issue of liability as a matter of law. In support of his motion, Lemanczyk proffers his own affidavit, a certified copy of the MV-104A Police Accident Report for the incident, the Summons and Verified Complaint, the defendants’ Verified Answer and his Verified Bill of Particulars. Among other things, Lemanczyk avers that as a result of the accident, he suffered serious and permanent injuries to his neck, low back, right knee and right shoulder and was required to undergo several surgeries, including spinal fusions and a right medial meniscectomy.In opposition to plaintiff’s motion, defendants proffer no evidentiary matter, but contend that plaintiff has failed to establish a prima facie case against them on the issue of liability because he has not offered documentary evidence that he suffered a “serious injury” as a proximate result of the accident, as required by Insurance Law §5104 in order to maintain a personal injury action seeking recovery of non-economic loss allegedly arising from negligence in the operation of a motor vehicle.The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. Before summary judgment may be granted, it must clearly appear that no material and triable issue of fact is presented (Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395, 165 NYS2d 498 [1957]). The movant has the initial burden of proving entitlement to summary judgment (Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 487 NYS2d 316 [1985]). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (Winegrad v. New York Univ. Med. Ctr., supra). Once such proof has been offered, the burden then shifts to the opposing party, who, in order to defeat the motion for summary judgment, must proffer evidence in admissible form…and must “show facts sufficient to require a trial of any issue of fact” (CPLR 3212 [b]; see Zuckerman v. City of New York, 49 NY2d 557, 427 NYS2d 595 [1980]). As the court’s function on such a motion is to determine whether issues of fact exist, not to resolve issues of fact or to determine matters of credibility, the facts alleged by the opposing party and all inferences that may be drawn from them are to be accepted as true (see Roth v. Barreto, 289 AD2d 557, 735 NYS2d 197 [2d Dept 2001]; O’Neill v. Fishkill, 134 AD2d 487, 521 NYS2d 272 [2d Dept 1987]).It is well settled that when a driver of a motor vehicle approaches another automobile from the rear, he or she is bound to maintain a safe rate of speed and has the duty to keep control over his or her vehicle and to exercise reasonable care to avoid colliding with the other vehicle (Carhuayano v. J & Rappaport Hacking, 28 AD3d 413, 813 NYS2d 162 [2d Dept 2006]; Gaeta v. Carter, 6 AD3d 576, 775 NYS.2d 86 [2d Dept2004]; Chepel v. Meyers, 306 AD2d 235, 762 NYS2d 95 [2d Dept 2003]; Power v. Hupart, 260 AD2d 458, 688 NYS2d 194 [2d Dept 1999]; see also Vehicle and Traffic Law §1129 [a]).Moreover, “‘a rear-end collision with a stopped or stopping vehicle creates a prima facie case of negligence with respect to the operator of the moving vehicle and imposes a duty of explanation on the operator of the moving vehicle to rebut the inference of negligence by providing a non-negligent explanation for the collision’” (Davidoff v. Mullokandov, 74 AD3d 862, 863, 903 NYS2d 107 [2d Dept 2010], quoting Carhuayano v. J & Rappaport Hacking, supra, 28 AD3d at 414), such as a mechanical failure, a sudden stop of the vehicle ahead or unavoidable skidding on a wet pavement or some other reasonable excuse (see Carhuayano v. J & Rappaport Hacking, supra; Rainford v. Sung S. Han, 18 AD3d 638; 795 NYS2d 645 [2d Dept 2005]; Thoman v. Rivera, 16 AD3d 667, 792 NYS2d 558 [2d Dept 2005]; Gaeta v. Carter, supra).Here, plaintiff Lemanczyk has established a prima facie case of entitlement to judgment in his favor as a matter of law on the issue of defendants’ liability by demonstrating, through the averments of his uncontradicted affidavit, that he was stopped at a red light when the vehicle driven by Blyer-Kurland’s struck the rear of his stopped vehicle. Further, according to the Police Accident Report submitted by plaintiff, Blyer-Kurland stated at the scene of the accident that “her foot came off the brake pedal and she rolled into the back of [plaintiff's vehicle].” Thus, plaintiff established prima facie that Blyer-Kurland, the defendant driver, failed to fulfill her duty to maintain control over her vehicle and to exercise reasonable care to avoid colliding with the vehicle ahead of her (see Carhuayano v. J & Rappaport Hacking, supra; Gaeta v. Carter, supra; Chepel v. Meyers, supra; Power v. Hupart, supra; Vehicle and Traffic Law §1129 [a]); see also Gleason v. Villegas, 81 AD3d 889 [2d Dept 2011]; see also Santana v. Danco, 115 AD3d 560 [1st Dept 2014]).Plaintiff having established a prima facie case of entitlement to judgment in his favor as a matter of law on the issue of defendants’ liability, the burden shifted to defendants to raise a triable issue of fact by proffering a non-negligent explanation for the rear end collision (see Zuckerman v. City of New York., supra; Davidoff v. Mullokandov, supra). They have failed to do so. Instead, they contend that plaintiff has failed to make a prima facie showing that he suffered serious injury as a proximate result of the accident. However, quite apart from the fact that the averments of serious injury made in plaintiff’s affidavit and pleadings stand uncontradicted by any evidentiary submission, the law is well settled that “serious injury ‘is decidedly an issue of damages, not liability’” (Rudra v. Friedman, 123 AD3d 1104, 1105 [2d Dept 2014], quoting Van Nostrand v. Froehlich, 44 AD3d 54, 59 [2d Dept 2007]; see Rutledge v. Petrocelli Elec. Co., Inc., 307 AD2d 871, 871-72 [1st Dept 2003] (in action for personal injuries allegedly sustained by plaintiff as a proximate result of rear-end collision, affirming both grant of plaintiff’s motion for partial summary judgment as to liability and denial of defendant’s cross-motion for summary judgment dismissing the complaint for lack of serious injury, where there was an issue of fact as to the latter).Accordingly, the motion by plaintiff Lemanczyk for partial summary on the issue of liability against the defendants is granted.The foregoing constitutes the decision and order of the court.Riverhead, New York___ FINAL DISPOSITION _XX_ NON-FINAL DISPOSITION
