Opinion
Index No. 25256/2018E
10-26-2018
ROSA DIAZ, Plaintiff, v. SENIORCARE EMERGENCY MEDICAL SERVICES, INC. and JOHN GONZALEZ, Defendants.
Unpublished Opinion
DECISION AND ORDER
JOHN R. HIGGITT, A.J.S.C.
The following papers numbered 7 to 14 and 22 in the NYSCEF System were read on this motion for SUMMARY JUDGMENT (LIABILITY) noticed on August 21, 2018 and duly submitted as No. 20 on the Motion Calendar of August 21, 2018
| NYSCEF Doc. Nos. | |
| Notice of Motion - Exhibits and Affidavits Annexed | 7-14 |
| Notice of Cross-Motion - Exhibits and Affidavits Annexed | |
| Answering Affidavit and Exhibits | |
| Replying Affidavit and Exhibits | |
| Stipulations | 22 |
Upon the foregoing papers, plaintiffs motion for partial summary judgment on the issues of defendants' liability for causing the subject motor vehicle accident and plaintiffs freedom from comparative fault is granted, in accordance with the annexed decision and order.
This is a negligence action to recover damages for personal injuries plaintiff allegedly sustained in a motor vehicle accident that occurred on June 5, 2017. Plaintiff had been stopped at a red traffic light in the intersection of Zerega Avenue and Bruckner Boulevard in the Bronx when the vehicle operated by defendant Gonzalez and owed by Seniorcare Emergency Medical Services struck plaintiffs vehicle in the rear. Plaintiff seeks summary judgment on the issues of defendants' liability and plaintiffs freedom from comparative fault. For the reasons that follow, plaintiffs motion is granted.
"A rear-end collision with a stationary vehicle creates a prima facie case of negligence requiring a judgment in favor of the stationary vehicle unless defendant proffers a nonnegligent explanation for the failure to maintain a safe distance ... A driver is expected to drive at a sufficiently safe speed and to maintain enough distance between himself [or herself] and cars ahead of him [or her] so as to avoid collisions with stopped vehicles, taking into account weather and road conditions" (LaMasa v Bachman, 56 A.D.3d 340, 340 [1st Dept 2008]). The happening of a rear-end collision is itself a prima facie case of negligence against the rearmost driver in a chain confronted with a stopped or stopping vehicle (see Cabrera v Rodriguez, 72 A.D.3d 553 [1st Dept 2010]).
Vehicle and Traffic Law § 1129(a) states that a "driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon and the condition of the highway" (see Darmento v Pacific Molasses Co., 81 N.Y.2d 985, 988 [1993]). Based on the plain language of the statute, a violation is clear when a driver follows another too closely without adequate reason and that conduct results in a collision (id.).
Plaintiff satisfied her prima facie burden of establishing her entitlement to judgment as a matter of law on the issue of liability (see CPLR 3212 [b]). Plaintiff submitted a copy of the pleadings, a verified bill of particulars, a certified police report and an affidavit of merit. Plaintiffs affidavit of merit sets forth sufficient details as to how the accident occurred, namely that plaintiffs vehicle was stopped due to a red traffic light at the intersection of Zerega Avenue and Bruckner Boulevard when defendants' vehicle impacted the rear of her vehicle without warning, causing the plaintiffs injuries.
Defendants failed to submit timely opposition to plaintiffs motion for summary judgment (see Senise v Mackasek, 174 A.D.2d 522, 551 [1st Dept 1991]; Romeo v Ben-Soph Food Corp., 146 A.D.2d 688, 690 [2nd Dept 1989]). Plaintiffs motion was returnable on September 28, 2017; however, defendants served the opposition on October 1, 2018. Even considering the untimely opposition, defendants failed to rebut the presumption of his negligence (see Dattilo v Best Transp. Inc., 79 A.D.3d 432 [1st Dept 2010]). The police report submitted by defendants is inadmissible hearsay (see Silva v Lakins, 118 A.D.3d 556 [1st Dept 2014). Defendant Gonzalez's affidavit averring that the plaintiff had failed to move forward when the light changed to green and there was no traffic in front on plaintiff s vehicle, fails to provide a nonnegligent explanation for the accident (see Torres v Kalmar, 136 A.D.3d 457 [1st Dept 2016]) plaintiffs evidence established that she was free of comparative fault and defendants' failed to raise a triable issue of fact.
Accordingly, it is
ORDERED, that plaintiffs motion for partial summary judgment on the issues of defendants' liability for causing the subject motor vehicle accident and plaintiffs lack of comparative fault is granted; and it further
ORDERED that defendants' first affirmative defense is dismissed.
This constitutes the decision and order of the court.