In Borowski v. Ptak, (4th Dept. June 2013), a 3-2 decision, the Fourth Department upheld the lower Court’s denial of a summary judgement motion for defendant.

This rear-end crash was a little different than most cases. In this case the Plaintiff was the party that rear-ended the defendant. Defendant then moved for summary judgment. The Court however found that the plaintiff came forth with a non-negligennt reason for the crash, i.e. defendant’s sudden stop. Even though defendant claims she was stopped for thirty seconds or more, the court held that this created an issue of fact for the jury.

The court held “Here, plaintiff testified at his deposition that he was unable to discern whether defendant’s vehicle was stopped because defendant’s brake lights were not activated. Plaintiff, however, also submitted the deposition testimony of McCulloch and defendant in which they both described traffic conditions on the date of the accident as “congested” and “stop and go.” Additionally, plaintiff submitted evidence that defendant stopped suddenly. Indeed, plaintiff testified at his
deposition that defendant apologized to plaintiff for the accident,explaining that McCulloch had stopped suddenly and that defendant “couldn’t help it.” That evidence, when viewed in the light most favorable to the nonmoving party (see Nichols v Xerox Corp., 72 AD3d 1501, 1502), establishes a sufficient nonnegligent explanation for the collision.”

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