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NEBOJSA JEREMIC, ET AL., PLAINTIFFS, v. RAYMOND K. TONG, DEFENDANT THIRD-PARTY PLAINTIFF-RESPONDENT; ANGEL MORALES, ET AL., THIRD-PARTY DEFENDANTS-APPELLANTS.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, the motion is granted, and the third-party complaint is dismissed.

This action arises out of a three-vehicle collision on April 8, 1995. In denying the motion of the third-party defendants for summary judgment dismissing the third-party complaint, the Supreme Court improperly relied on its prior order denying the plaintiffs' motion for summary judgment on the issue of liability against the defendant. The third-party defendants did not have a full and fair opportunity to litigate the issue of who was at fault in the accident, and the prior determination did not necessarily resolve the issues presented in the third-party complaint (see, People v. Evans, 94 N.Y.2d 499, 502; Gilligan v. Reers, 255 A.D.2d 486).

In addition, on the merits, the third-party defendants are entitled to dismissal of the third-party complaint. A rear-end collision with a stopped vehicle creates a prima facie case of negligence on the part of the following vehicle, imposing a duty of explanation on the driver of that vehicle to rebut the inference of negligence by providing some non-negligent explanation for the collision (see, Colon v. Cruz, 277 A.D.2d 195; Hanak v. Jani, 265 A.D.2d 453). The evidence established that the third-party defendants' vehicle had come to a stop, and that it was struck from behind by the plaintiffs' vehicle, which had itself been struck from behind by the defendant's vehicle. Although the defendant claimed that the third-party defendants' vehicle stopped short, that allegation failed to raise a triable issue of fact as to whether the third-party defendants were negligent and whether such negligence was a proximate cause of the accident (see, Colon v. Cruz, supra).

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JEREMIC v. TONG
(May 14, 2001)