Monday, December 29, 2008

In the End, Auto Physical Damage Subrogation Claim Wins

Allstate Ins. Co. v. Bader

(2nd Dept., decided 12/23/2008)

In this auto physical damage subrogation case, the Second Department reminds:
"A rear-end collision with a stopped vehicle creates a prima facie case of negligence against the operator of the moving vehicle, thereby requiring that operator to rebut the inference of negligence by providing a nonnegligent explanation for the collision" (Kimyagarov v Nixon Taxi Corp., 45 AD3d 736; see Klopchin v Masri, 45 AD3d 737; Nieves v JHH Transp., LLC, 40 AD3d 1060). In opposition to the plaintiff's demonstration of its prima facie entitlement to judgment as a matter of law, the defendants failed to proffer sufficient evidence to raise a triable issue of fact. Accordingly, summary judgment was properly awarded to the plaintiff on the issue of liability.

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