Abdullah v. City of New York

Abdullah v City of New York 2026 NY Slip Op 05508 September 30, 2026 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This decision is uncorrected and subject to revision before publication in the Official Reports. David Abdullah, appellant, v City of New York, et al., respondents. Supreme Court of the State of New York, Appellate Division, Second Judicial Department Decided on September 30, 2026 2025-01803, (Index No. 502977/23) Betsy Barros, J.P. Cheryl E. Chambers Janice A. Taylor Elena Goldberg Velazquez, JJ. Wiese & Aydiner, PLLC, Mineola, NY (Si Aydiner of counsel), for appellant. Steven Banks, Corporation Counsel, New York, NY (Elizabeth I. Freedman and Devin Slack of counsel), for respondents. [*1] DECISION & ORDER In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Patria Frias-Colón, J.), dated January 14, 2025. The order granted the defendants' cross-motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident, and denied, as academic, the plaintiff's motion for summary judgment on the issue of liability and dismissing the affirmative defense alleging comparative fault. ORDERED that the order is reversed, on the law, with costs, the defendants' cross-motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident is denied, and the plaintiff's motion for summary judgment on the issue of liability and dismissing the affirmative defense alleging comparative fault is granted. The plaintiff commenced this action to recover damages for personal injuries that he allegedly sustained when the vehicle he was operating was struck in the rear by a vehicle owned by the defendant City of New York and operated by the defendant Wojciech Szczech (hereinafter the defendant driver). The plaintiff moved for summary judgment on the issue of liability and dismissing the affirmative defense alleging comparative fault. The defendants opposed the motion and cross-moved for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident. In an order dated January 14, 2025, the Supreme Court granted the defendants' cross-motion, and denied, as academic, the plaintiff's motion. The plaintiff appeals. The defendants met their prima facie burden of demonstrating that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident (see Toure v Avis Rent A Car Sys., Inc., 98 NY2d 345; Gaddy v Eyler, 79 NY2d 955, 956-957). The defendants demonstrated, prima facie, that the plaintiff did not sustain a serious injury under the permanent consequential limitation of use or significant limitation of use categories of Insurance Law § 5102(d) (see Staff v Yshua, 59 AD3d 614). In opposition, however, the plaintiff raised a triable issue of fact as to whether he sustained serious injuries to his left shoulder and the [*2]cervical and lumbar regions of his spine under the permanent consequential limitation of use and significant limitation of use categories of Insurance Law § 5102(d) (see Perl v Meher, 18 NY3d 208). Further, the defendants failed to establish, prima facie, that the injuries to the plaintiff's left shoulder and the cervical and lumbar regions of his spine were not caused by the accident (see Holliday v City of New Rochelle, 243 AD3d 648, 649; Zennia v Ramsey, 208 AD3d 735, 735; Luigi v Avis Cab Co., Inc., 96 AD3d 809; Reyes v Diaz, 82 AD3d 484). The burden, therefore, did not shift to the plaintiff to raise a triable issue of fact as to causation (see Holliday v City of New Rochelle, 243 AD3d at 649; Valdez v Classic Hauling, LLC, 233 AD3d 959, 960; Skeldon v Faessler, 219 AD3d 851, 853). Accordingly, the Supreme Court should have denied the defendants' cross-motion for summary judgment dismissing the complaint on the ground that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the accident. The Supreme Court denied, as academic, the plaintiff's motion for summary judgment on the issue of liability and dismissing the affirmative defense alleging comparative fault. Since the merits of the motion were litigated by the parties in the Supreme Court and briefed by the parties in this Court, we address the motion in the interest of judicial economy (see Chowdhury v Elshaer, 233 AD3d 1022, 1023-1024; Skeldon v Faessler, 219 AD3d at 853, 195). A plaintiff in a negligence action moving for summary judgment on the issue of liability must establish, prima facie, that the defendants breached a duty owed to the plaintiff and that the defendants' negligence was a proximate cause of the alleged injuries (see Madrigal v Paragon Motors of Woodside, Inc., 236 AD3d 885, 886). A plaintiff's comparative fault is not a consideration in determining whether the plaintiff has made a prima facie showing on the issue of the defendants' liability (see Detoma v Dobson, 214 AD3d 948, 949; see also Rodriguez v City of New York, 31 NY3d 312). However, the issue of a plaintiff's comparative negligence may be decided in the context of a summary judgment motion where, as here, the plaintiff moves for summary judgment dismissing an affirmative defense alleging comparative negligence and culpable conduct on the part of the plaintiff (see Ali v Alam, 223 AD3d 642, 643-644). A driver of a vehicle approaching another vehicle from the rear is required to maintain a reasonably safe distance and rate of speed under the prevailing conditions to avoid colliding with the other vehicle (see Correa v Cannon, 240 AD3d 663, 663-664; see also Vehicle and Traffic Law § 1129[a]). Thus, a rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the operator of the rear vehicle, thereby requiring that operator to rebut the inference of negligence by providing a nonnegligent explanation for the collision (see Correa v Cannon, 240 AD3d at 663-664). Here, the plaintiff's submissions, including the parties' deposition testimony and a surveillance video depicting the collision, established, prima facie, the plaintiff's entitlement to judgment as a matter of law on the issue of the defendants' liability by demonstrating that the defendant driver was at fault in striking the rear of the plaintiff's vehicle while the plaintiff was stopped for a traffic condition (see Laureano v EAN Holdings, LLC, 225 AD3d 754, 756; Newman v Apollo Tech Iron Work Corp., 188 AD3d 902, 903). The plaintiff also established, prima facie, that he was entitled to judgment as a matter of law dismissing the affirmative defense alleging comparative fault, by demonstrating that he was not at fault in the happening of the collision and that the defendant driver's negligence was the sole proximate cause of the collision (see Ali v Alam, 223 AD3d at 644; Seizeme v Levy, 208 AD3d 809, 811). In opposition, the defendants failed to raise a triable issue of fact as to either of these issues. Accordingly, the Supreme Court should have granted the plaintiff's motion for summary judgment on the issue of liability and dismissing the affirmative defense alleging comparative fault. The parties' remaining contentions either are without merit or have been rendered [*3]academic in light of our determination. BARROS, J.P., CHAMBERS, TAYLOR and GOLDBERG VELAZQUEZ, JJ., concur. ENTER: Darrell M. Joseph Clerk of the Court