Wade Clark Mulcahy LLP

Recent case law regarding rear-end motor vehicle collisions highly favors the front most car.  It is increasingly difficult to dispute liability and defense counsel are typically left mitigating damages. This has been re-affirmed by a recent Second Department decision, <em> <a href="https://www.wcmlaw.com/wp-content/uploads/2023/03/An-v.-Abbate.pdf">An v. Abbate</a>,</em> 2023 NY Slip Op 00977, where the lower court’s decision was overturned and summary judgment was granted in favor of plaintiff. While, it comes to no surprise to some that plaintiff was awarded summary judgment on the issue of liability, what is surprising is what plaintiff was able to overcome in obtaining judgment in their favor.

The accident occurred on Roosevelt Avenue near 154^th Street in Queens. It appeared to be standard rear-end collision, plaintiff claimed to be fully stopped, and defendant’s vehicle came into contact with the rear bumper. However, Defendant Abbate was able to obtain an affidavit of an eyewitness who swore that while defendant was driving forward, he witnessed plaintiff’s vehicle go in reverse and back up before the two vehicles made contact.  Despite this eyewitness affidavit, the Second Department overturned the lower court’s grant of summary judgment to defendant on the issue of liability and specifically stated that the eyewitness account “that the plaintiff’s vehicle was backing up at the same time was insufficient to raise a triable issue of fact because that statement related only to the plaintiff’s comparative fault.” (<em>An v. Abbate</em>, 2023 NY Slip Op 00977 <em>citing Rodriguez v City of New York</em>, 31 NY3d at 323-324; <em>Whitehead v David Rosen Bakery Supplies, Inc</em>., 208 AD3d 533).

Thus, courts are bending over backward to permit plaintiffs get their cases to a jury, and even ignore eyewitness accounts.

Thanks to Christopher Palmieri for his assistance with this post.  Should you have any questions, please contact <a href="tbracken@wcmlaw.com">Tom Bracken</a>.