This page summarizes and comments on a published court decision. It is general information, not legal advice, and reading it does not create an attorney-client relationship. Every case depends on its own facts. Unless this page says otherwise, The Eskesen Law Firm did not represent any party in this case.
Bottom line
A driver who rear-ends a stopped or stopping car must give a non-negligent explanation, and a sudden stop that was foreseeable in the traffic conditions may not be enough. Here, the Second Department granted an injured driver summary judgment on liability, dismissed the comparative negligence defense, and reinstated her claim; on serious injury, the defense experts found significant limitations in her spine without adequately explaining why they called them voluntary, and the defense papers did not address her claim that the crash made earlier injuries worse.
The case
- Court
- Appellate Division, Second Department
- Decided
- November 4, 2026
- Case
- Eagan v Gingo
- Citation
- 2026 NY Slip Op 06417
- Official text
- Read the decision on the New York courts’ official reporter site
The facts
The plaintiff alleged that she was injured when her vehicle was struck in the rear by a vehicle owned by North Shore University Hospital and Northwell Health, Inc., and driven by Robert John Gingo. She testified at her deposition that her vehicle was stopped at a red light when it was struck. Gingo testified that she suddenly stopped, and a passenger in his vehicle averred, as the court described his affidavit, that “both vehicles were traveling at approximately one mile per hour in heavy traffic when the plaintiff suddenly stopped her vehicle, causing a collision” (2026 NY Slip Op 06417, *2). She moved for summary judgment on liability and to dismiss the comparative negligence defense. The defendants cross-moved to dismiss the complaint under the serious injury law, Insurance Law § 5102(d). The Supreme Court, Nassau County, denied her motion and granted the cross-motion, and she appealed.
The holding
The Second Department reversed, granted her motion, and denied the cross-motion. On serious injury, the defendants “failed to meet their prima facie burden of showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d)” (id. at *1). “The defendants’ experts found significant limitations in the range of motion of the cervical and lumbar regions of the plaintiff’s spine and failed to adequately explain and substantiate their opinions that the limitations were voluntary” (id. at *2). And their papers “failed to address the plaintiff’s claims, set forth in the bill of particulars, that as a result of the defendants’ negligence, the accident exacerbated preexisting injuries to the cervical and lumbar regions of her spine” (id.). On fault, the court restated that “vehicle stops that are foreseeable under the prevailing traffic conditions, even if sudden, must be anticipated by the driver who follows” (id.). The defense account of a sudden stop in heavy traffic, “without more, failed to raise a triable issue of fact as to Gingo’s negligence or whether the plaintiff was comparatively at fault in the happening of the accident” (id.).
What changed
Nothing new: this applies settled law, including the Court of Appeals’ decision in Toure v Avis Rent A Car Sys. (98 NY2d 345 [2002]) and the court’s earlier decision in Perez v Persad (183 AD3d 771 [2d Dept 2020]).
What it means
- When a car hits a stopped or stopping car from behind, the driver in back must explain why the crash was not his or her fault. A claim that the car ahead stopped suddenly may not be enough when the traffic made the stop foreseeable.
- On serious injury, a defense doctor who finds limited motion and calls it voluntary must explain and support that opinion.
- If the bill of particulars claims that the crash made earlier injuries worse, the defense must address that claim to win dismissal.
Our view
Commentary by Frank N. Eskesen. This section is opinion.
This decision is a useful contrast with our entry on Ruiz v Town of Southampton (Second Department, October 21, 2026), where a sworn statement that the car ahead stopped “for no apparent reason” was enough for a trial. Here, the defense’s own account put both cars in heavy traffic at about one mile per hour. We believe that is the difference: in heavy traffic, the car ahead stopping is not a surprise; it is the traffic. As in our entry on Williams v Dia (First Department, October 22, 2026), an earlier injury did not end the claim; here, the defense did not address her claim that the crash made her earlier spine injuries worse. Two lessons. 1. If you are hit from behind, note why you stopped (a red light, traffic, or a pedestrian dart-out, for example) and whether there are cameras or witnesses. Tell your doctors about any earlier injuries. Get legal advice promptly. 2. For lawyers, when the records support it, plead the worsening of preexisting conditions in the bill of particulars; a defense exam that does not answer it may not carry the defense’s burden. A bill of particulars is more than a formality; here it helped keep the case alive.
Topics
Court: Second Department. Year: 2026. Statutes: Insurance Law § 5102(d). Result: reversed.
Reviewed by Frank N. Eskesen, admitted in New York since 2000. Decided November 4, 2026. Posted November 11, 2026.
Questions about your own accident?
Call us for a free consultation. Calls answered live 24 hours a day, 7 days a week.