We respectfully dissent because we cannot agree with plaintiffs’ argument that the occurrence of a rear-end collision here establishes a prima facie case of negligence against defendants, requiring them to provide an adequate, nonnegligent explanation of the accident. While it would have been appropriate for Supreme Court to have given the pattern instruction informing the jury that defendants had the burden to provide such an explanation (see NY PJI 2:83), the court did not do so and plaintiffs failed to object to its omission either before or after the jury charge was given. Instead, plaintiffs accepted the court’s charge that plaintiffs had the burden to prove their claims of negligence and that, while the fact that defendants’ bus skidded and collided with plaintiffs’ car should be considered in determining whether defendant PA. Kristoferson used reasonable care, neither the collision nor the skidding required the jury to find defendants negligent as a matter of law. Even now, plaintiffs do not argue that Supreme Court’s charge was improper, but only that this Court should hold defendants to a burden of proof that was not conveyed to the jury.
“[P]arties to a civil litigation, in the absence of a strong countervailing public policy, may consent, formally or by their conduct, to the law to be applied” (Martin v City of Cohoes, 37 NY2d 162, 165 [1975]; see Mitchell v New York Hosp., 61 NY2d 208, 214 [1984]; Matter of Mallinckrodt Med. v Assessor of Town ofArgyle, 292 AD2d 721, 722 [2002]). Here, the parties accepted Supreme Court’s instructions as to plaintiffs’ burden of proof, and plaintiffs did not object when the court imposed no burden of proof on defendants and gave no instruction as to the inference of negligence that arises from a rear-end collision (see e.g. Forget v Smith, 39 AD3d 1127, 1127 [2007]). Inasmuch as the omitted instruction related to the burden of proof, rather than the standard of care, we are unable to discern any strong countervailing public policy requiring reversal (cf. Sega v State of New York, 89 AD2d 412, 414 n [1982], affd 60 NY2d 183 *495[1983]).* In addition, in light of the instructions that were given by Supreme Court, there is credible evidence sufficient to support the jury’s finding that plaintiffs did not meet their self-imposed burden of proving their claim of negligence. In these circumstances, we should not disturb the course charted by the parties at trial and order a new trial based upon a different burden of proof injected into the case for the first time on appeal (see Cullen v Naples, 31 NY2d 818, 820 [1972]; Matter of De Luca v Randall, 285 AD2d 684, 685 [2001]; Simone v City of Niagara Falls, 281 AD2d 923, 923 [2001]; Guilder v Corinth Constr. Corp., 235 AD2d 619, 620 [1997]; Stram v Farrell, 223 AD2d 260, 264 [1996]). Accordingly, we would affirm Supreme Court’s judgment.
Kavanagh, J., concurs.
Ordered that the judgment is reversed, on the facts, and matter remitted to the Supreme Court for a new trial, with costs to abide the event.
As for the majority’s concern that this issue was not raised on appeal, plaintiffs did so by arguing that defendants had the burden to explain the rear-end collision. Having done so, we are unwilling to inject a legal standard that plaintiffs did not seek to apply at trial.