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  159
48Ak159 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

END OF DOCUMENT