Santa Ditrapani v Michael Marciante

Ditrapani v Marciante 2004 NY Slip Op 06512 [10 AD3d 628] September 13, 2004 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, November 10, 2004

Santa Ditrapani, Appellant,
v
Michael Marciante, Jr., Respondent.

—[*1]

In an action to recover damages for personal injuries, the plaintiff appeals from so much of an order of the Supreme Court, Richmond County (Solomon, J.), dated February 17, 2004, as denied her unopposed motion for summary judgment on the issue of liability.

Ordered that the order is reversed insofar as appealed from, on the law, with costs, and the motion is granted.

The plaintiff adduced proof demonstrating that she was injured on November 3, 2001, when, while stopped in traffic on Hylan Boulevard in Staten Island, the vehicle driven by the defendant struck her vehicle in the rear. The plaintiff discharged her prima facie burden of proof on the issue of liability by demonstrating that her stopped vehicle was struck in the rear by the defendant's vehicle (see Tricoli v Malik, 268 AD2d 469, 470 [2000]), which imposed a duty on the defendant, as operator of the moving vehicle, to rebut the inference of negligence created by the rear-end collision with a nonnegligent explanation (see Dileo v Greenstein, 281 AD2d 586 [2001]; Leonard v City of New York, 273 AD2d 205 [2000]). As the defendant did not oppose the motion, the inference of the defendant's negligence was unrebutted and the plaintiff was entitled to summary judgment on the issue of liability (see La Buda v Brookhaven Mem. Hosp. Med. Ctr., 62 NY2d 1014, 1016 [1984]). Altman, J.P., Crane, Fisher and Lifson, JJ., concur.