Eun Ok Park v Mattos

[*1] Eun Ok Park v Mattos 2007 NY Slip Op 52459(U) [18 Misc 3d 129(A)] Decided on December 28, 2007 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 28, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 2nd and 11th JUDICIAL DISTRICTS
PRESENT: : WESTON PATTERSON, J.P., GOLIA and BELEN, JJ
2006-1939 Q C.

Eun Ok Park and Chang Soo Ha, Respondents,

against

Javier Mattos, Appellant.

Appeal from an order of the Civil Court of the City of New York, Queens County (Robert D. Kalish, J.), entered May 24, 2006. The order, insofar as appealed from, granted plaintiff's motion for a new trial.

Order, insofar as appealed from, affirmed without costs.

This personal injury and property damage action arising from a rear-end collision was tried before a jury on the issue of liability. Plaintiffs testified that after their car came to a progressive stop in traffic inside the Lincoln Tunnel, defendant struck their car from the rear and caused their car to strike the car in front of them. Defendant testified that plaintiffs' car came to a sudden stop, that defendant subsequently collided with plaintiffs' car, and that prior to his collision with plaintiffs' car, he heard "a hit" which he attributed to a collision between plaintiffs' car and the car in front of them.

The jury found that defendant was negligent, but that his negligence was not a proximate cause of the collision. Plaintiffs moved to set aside the verdict and for judgment to be entered in their favor or, in the alternative, for a new trial. The Civil Court granted plaintiffs' motion to the extent of setting aside the verdict and ordering a new trial, finding that "the issue[s] of negligence and proximate cause in a hit in the rear' type of motor vehicle accident are inextricably interwoven," and that it was therefore "inconsistent for the jury to find that the defendant was negligent, but that said negligence was not a substantial factor in causing the accident." We affirm. [*2]

"A rear-end collision with a stopped or stopping' vehicle creates a prima facie case of liability with respect to the operator of the rearmost vehicle, thereby requiring that operator to rebut the inference of negligence by providing a nonnegligent explanation for the collision" (Chepel v Meyers, 306 AD2d 235, 237 [2003]). The jury did not credit defendant's testimony to determine that the sudden stop of plaintiffs' vehicle was a nonnegligent explanation for the collision (see e.g. Carhuayano v J & R Hacking, 28 AD3d 413, 414 [2006]), but found instead that defendant was negligent. We find that, under the circumstances of this case, the "jury's findings with regard to negligence and proximate cause are irreconcilably inconsistent" (Pimpinella v McSwegan, 213 AD2d 232, 233 [1995]; see also Yondola v Trabulsy, 22 AD3d 483 [2005]; cf. Gross v Napoli, 216 AD2d 524 [1995]). The jury could not consistently determine first that defendant did not rebut the inference of negligence by providing a nonnegligent explanation for the collision, and then that defendant's negligence was not a substantial factor in the collision.

Weston Patterson, J.P., Golia and Belen, JJ., concur.
Decision Date: December 28, 2007