Pincus v. Cohen, 198 A.D.2d 405, 604 N.Y.S.2d 139 (N.Y.A.D. 2 Dept., Nov 22, 1993) (NO. 91-08639)

Supreme Court, Appellate Division, Second Department, New York.
Anna Belle PINCUS, et al., Respondents,v.Richard COHEN, et al., Appellants.

Nov. 22, 1993.

 Driver of rear-ended vehicle brought action against driver of other vehicle to recover damages for personal injuries.   The Supreme Court, Nassau County, Burke, J., set aside verdict for defendant driver and granted new trial.   On appeal, the Supreme Court, Appellate Division, held that defense presented was insufficient to rebut inference of negligence created by otherwise unexplained rear-end collision.
 Affirmed.

West Headnotes
[1] Automobiles  242(1)48Ak242(1) Most Cited Cases
[1] Automobiles  244(12)48Ak244(12) Most Cited Cases
Rear-end collision with automobile stopped for red light creates inference of negligence and prima facie case of liability on part of operator of offending vehicle.
[2] Automobiles  242(1)48Ak242(1) Most Cited Cases
Defense alleging only that defendant saw plaintiff's vehicle at red light, that brakes were applied, but that defendant's vehicle nevertheless slid or skidded into plaintiff's vehicle due to wet condition of roadway was insufficient to rebut inference of negligence created by otherwise unexplained rear-end collision;  there was no evidence that brakes malfunctioned or of any other sudden or unavoidable circumstance which could have contributed to accident.
[3] Automobiles  15948Ak159 Most Cited Cases
Driver of vehicle, which skidded on wet roadway and collided with rear of vehicle stopped at red traffic signal, could not invoke emergency doctrine; driver should reasonably have anticipated and been prepared to deal with situation with which she was confronted. **139 Rivkin, Radler, Bayh, Hart & Kremer, Uniondale (Evan H. Krinick and Merril C. Schapiro, of counsel;  Michael P. Versichelli on the brief), for appellants.
 Kirschenbaum & Kirschenbaum, P.C., Garden City (Steven L. Alter and  Jeffrey Dale Welsh, of counsel), for respondents.

 Before BRACKEN, J.P., and BALLETTA, MILLER and PIZZUTO, JJ.


 *405 MEMORANDUM BY THE COURT.
 In an action to recover damages for personal injuries, etc., the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Burke, J.), entered July 17, 1991, as, upon granting the plaintiffs' motion pursuant to CPLR 4404, set aside, as against the weight of the evidence, a jury verdict in favor of the defendants on the issue of liability and granted the plaintiffs a new trial.
 ORDERED that the order is affirmed insofar as appealed from, with costs.
 It is undisputed that the defendants' vehicle skidded on a wet roadway and collided with the plaintiffs' vehicle, which *406 was stopped at a red traffic signal.   At the trial, the defendants offered no evidence that their vehicle's brakes malfunctioned.   Moreover, the defendants' papers in opposition to the motion to set aside the verdict conceded that it was not their contention that their vehicle's brakes malfunctioned, but only that the defendant driver lost control of the vehicle due to the wet roadway.
 [1][2] It is well settled that a rear-end collision with an automobile stopped for a red light creates an inference of negligence and a prima facie case of liability on the part of the operator of the offending vehicle (see, Young v. City of New York, 113 A.D.2d 833, 833-834, 493 N.Y.S.2d 585; O'Callaghan v. Flitter, 112 A.D.2d 1030, 1031, 493 N.Y.S.2d 28).   A defense which only alleges that the defendant saw the plaintiff's vehicle at a red light, that the brakes of the vehicle were applied, but the vehicle nevertheless slid or skidded into the plaintiff's vehicle due to the wet **140 condition of the roadway, has been held insufficient to rebut the inference of negligence created by the unexplained rear-end collision (see, Benyarko v. Avis Rent A Car Sys., 162 A.D.2d 572, 573, 556 N.Y.S.2d 761; Young v. City of New York, supra ).   Since the defendants did not come forth with any defense of sudden or unavoidable circumstances which could have contributed to the happening of the accident, the verdict in favor of the defendants was properly set aside (see, O'Callaghan v. Flitter, supra ).
 [3] Furthermore, we find that the trial court committed error by instructing the jury on the emergency doctrine.   An emergency instruction should not be given where, as here, the defendant driver should reasonably have anticipated and been prepared to deal with the situation with which she was confronted (see, McCarthy v. Miller, 139 A.D.2d 500, 526 N.Y.S.2d 848; Hardy v. Sicuranza, 133 A.D.2d 138, 518 N.Y.S.2d 812).
604 N.Y.S.2d 139, 198 A.D.2d 405
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