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FRANCESCA ROSA, ETC., ET AL., PLAINTIFFS-RESPONDENTS, v. COLONIAL TRANSIT, INC., ET AL., DEFENDANTS-RESPONDENTS, RAY'S SCHOOL TRANS. CO., INC., ET AL., APPELLANTS.

DECISION ORDER

ORDERED that the order is affirmed insofar as appealed from, with one bill of costs to the respondents appearing separately and filing separate briefs.

Contrary to the appellants' contention, the Supreme Court properly denied their motion for summary judgment. Although a rear-end collision with a stopped vehicle creates a prima facie case of liability with respect to the operator of the moving vehicle (see, Martin v. Pullafico, 272 A.D.2d 305; Mundo v. City of Yonkers, 249 A.D.2d 522; Migdol v. Striker, 215 A.D.2d 358), a triable issue of fact exists as to whether the driver of the stopped bus, the appellant Richard K. Wilkerson, contributed to the accident by making a sudden stop (see, Gildersleeve v. Leo, 274 A.D.2d 547; [2d Dept., July 31, 2000]; Maschka v. Newman, 262 A.D.2d 615; Mundo v. City of Yonkers, supra; Migdol v. Striker, supra). Furthermore, an award of summary judgment would be inappropriate in this case since Wilkerson has not appeared for court-ordered examinations before trial, thereby depriving the plaintiffs and codefendants of an opportunity to obtain evidence pertinent to the cause of the accident (see, CPLR 3212[f]; Hoxha v. City of New York, 265 A.D.2d 379; Lantigua v. Mallick, 263 A.D.2d 467; Campbell v. City of New York, 220 A.D.2d 476; Soto v. City of Long Beach, 197 A.D.2d 615).

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ROSA v. COLONIAL TRANSIT
(Oct 30, 2000)