Opinion
INDEX No. 610036/2020 Mot. Seq. No. 001 MG Mot. Seq. No. 002 XMGNYSCEF DOC. No. 31
01-03-2022
ADRIANA JULIEN and GLADYS BELTRAN, Plaintiffs, v. EDWARD W. JOHNTRY and L. M. LIBRIZZI-PROSPER, Defendants.
LAW OFFICE OF CARL MALTRESE Attorney for Plaintiffs SCAHILL LAW GROUP, P.C. Attorney for Defendant Librizzi-Prosper DESENA & SWEENEY, LLP Attorney for Defendant Johntry
Unpublished Opinion
LAW OFFICE OF CARL MALTRESE Attorney for Plaintiffs
SCAHILL LAW GROUP, P.C. Attorney for Defendant Librizzi-Prosper
DESENA & SWEENEY, LLP Attorney for Defendant Johntry
HON. DAVID T. REILLY JUSTICE OF THE SUPREME COURT
Upon the following papers read on these motions for summary judgment: Notice of Motion/ Order to Show Cause and supporting papers filed by defendant L.M. Librizzi-Prosper, on November 30, 2020; Notice of Cross Motion and supporting papers filed by plaintiffs, on December 15, 2020; Answering Affidavits and supporting papers filed by defendant Edward W. Johntry, on December 4, 2020; filed by defendant Edward W. Johntry, on December 16, 2020; filed by defendant L.M. Librizzi-Prosper, on December 17, 2020; Replying Affidavits and supporting papers filed by defendant L.M. Librizzi-Prosper, on December 9, 2020; Other__; it is
ORDERED that the motion by defendant L.M. Librizzi-Prosper for summary judgment dismissing the complaint and cross claims as asserted against her is granted; and it is further
ORDERED that the cross motion by plaintiffs for summary judgment in their favor on the issue of defendant Edward W. Johntry's liability is granted.
This is an action to recover damages for injuries allegedly sustained by plaintiffs Adriana Julien and Gladys Beltran as the result of a motor vehicle accident, which occurred on December 13, 2019, at approximately 8:30 p.m., on Main Street, at or near its intersection with Ocean Avenue, in Islip, New York. The accident allegedly occurred when plaintiffs' vehicle was involved in a four-vehicle, rear-end collision with vehicles owned and operated by an unnamed nonparty, and defendants L.M. Librizzi-Prosper and Edward W. Johntry. Plaintiff Julien operated the lead vehicle, in which plaintiff Beltran was a passenger, Librizzi-Prosper operated the middle vehicle, and Johntry operated the rear vehicle. Julien was operating her vehicle behind an unnamed nonparty vehicle. It is alleged that Julien brought her vehicle to a complete stop for a red traffic signal, that Librizzi-Prosper brought her vehicle to a complete stop behind Julien, and that Johntry's vehicle struck Librizzi-Prosper's vehicle in the rear, propelling it into the rear of plaintiffs' vehicle.
Librizzi-Prosper now moves for summary judgment dismissing the complaint and cross claims as asserted against her, arguing that because her vehicle was completely stopped when it was struck in the rear by Johntry's vehicle and propelled forward into the rear of plaintiffs' vehicle, she was not at fault in the happening of the accident. In support of her motion, Librizzi-Prosper submits, inter alia, a copy of the police accident report. Johntry opposes the motion, arguing that it is premature as discovery has not been completed, and he submits the affirmation of his attorney.
Plaintiffs cross-move for summary judgment in their favor on the issue of Johntry's liability, arguing that Johntry's negligence was the sole proximate cause of the accident. Plaintiff alleges that Johntry violated, inter alia, Vehicle and Traffic Law § 1129 (a) by following too closely. In support of their motion, plaintiffs submit, inter alia, the affidavits of Julien and Librizzi-Prosper, and a copy of the police accident report. Johntry, again, opposes the motion, arguing that it is premature and submits the affirmation of his attorney.
A defendant moving for summary judgment in a negligence action has the burden of establishing, prima facie, that he or she was not at fault in the happening of the subject accident (see Estate of Cook v Gomez, 138 A.D.3d 675, 30 N.Y.S.3d 148 [2d Dept 2016]; Boulos v Lerner-Harrington, 124 A.D.3d 709, 709, 2 N.Y.S.3d 526 [2d Dept 2015]; Rungoo v Leary, 110 A.D.3d 781, 782, 972 N.Y.S.2d 672 [2d Dept 2013]). While there can be more than one proximate cause of an accident and it is generally for the trier of fact to determine, the issue of proximate cause may be decided as a matter of law where only one conclusion may be drawn from the established facts (see Estate of Cook v Gomez, supra; Jones v Vialva-Duke, 106 A.D.3d 1052, 966 N.Y.S.2d 187 [2d Dept 2013]; Kalland v Hungry Harbor Assoc., LLC, 84 A.D.3d 889, 922 N.Y.S.2d 550 [2d Dept 2011]).
When the driver of an automobile approaches another automobile from the rear, he or she is bound to maintain a reasonably safe rate of speed and control over his or her vehicle, and to exercise reasonable care to avoid colliding with the other vehicle (see Vehicle and Traffic Law § 1129 [a]; Melendez v McCrowell, 139 A.D.3d 1018, 32 N.Y.S.3d 604 [2d Dept 2016]; Singh v Avis Rent A Car Sys., Inc., 119 A.D.3d 768, 989 N.Y.S.2d 302 [2d Dept 2014]; Martinez v Martinez, 93 A.D.3d 767, 941 N.Y.S.2d 189 [2d Dept 2012]). Accordingly, a rear-end collision establishes a prime facie case of negligence on the part of the operator of the rear vehicle, thereby requiring that operator to rebut the inference of negligence by providing a non-negligent explanation for the collision (see Strickland v Tirino, 99 A.D.3d 888, 952 N.Y.S.2d 599 [2d Dept 2012]; Martinez v Martinez, supra; Giangrasso v Callahan, 87 A.D.3d 521, 928 N.Y.S.2d 68 [2d Dept 2011]). Evidence that a vehicle was struck in the rear and propelled into the vehicle in front of it may provide a sufficient non-negligent explanation (see Hartfield v Seenarraine, 138 A.D.3d 1060, 30 N.Y.S.3d 316 [2d Dept 2016]; Kuris v El Sol Contr. &Constr. Corp., 116 A.D.3d 675, 983 N.Y.S.2d 580 [2d Dept 2014]; Strickland v Tirino, supra). In chainreaction accidents, the operator of a vehicle which is stopped or coming to a stop and is propelled into the vehicle in front of it, as a result of being struck from behind, is not negligent inasmuch as the operator's actions cannot be said to be the proximate cause of the injuries resulting from the collision (see Chuk Hwa Shin v Correale, 142 A.D.3d 518, 36 N.Y.S.3d 213 [2d Dept 2016]; Niosi v Jones, 133 A.D.3d 578, 19 N.Y.S.3d 550 [2d Dept 2015]; Vargas v Muhammad Akbar, 123 A.D.3d 1016, 999 N.Y.S.2d 163 [2d Dept 2014]).
Librizzi-Prosper has established, prima facie, entitlement to summary judgment dismissing the complaint and cross claims against her, as she has established that her vehicle was completely stopped at a traffic signal on eastbound Main Street when it was struck from behind by Johntry's vehicle (see Chuk Hwa Shin v Correale, supra; Estate of Cook v Gomez, supra; Boulos v Lerner-Harrington, supra; Jones v Vialva-Duke, supra). She further established that she was stopped behind plaintiffs' vehicle, that she did not make contact with plaintiffs' vehicle until after she was struck from the rear, and that the rear collision propelled her vehicle forward into the rear of plaintiffs' vehicle.
Librizzi-Prosper having met her initial burden on the motion, the burden now shifts to the opposing parties to submit evidence, in admissible form, of a material issue of fact requiring a trial on the issue of liability (see Alvarez v Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923 [1986]; Zuckerman v City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595 [1980]). Here, plaintiffs do not oppose the motion which, in effect, is a concession that no question of fact exists, and the facts as alleged in the moving papers may be deemed admitted (see Kuehne & Nagel v Baiden, 36 N.Y.2d 539, 369 N.Y.S.2d 667 [1975]; 114 Woodbury Realty, LLC v 10 Bethpage Rd., LLC, 178 A.D.3d 757, 114 N.Y.S.3d 100 [2d Dept 2019]). Johntry has also failed to raise a triable issue of fact. In opposition, Johntry submits the affirmation of his attorney, alleging that the motion is premature and that triable issues exist with respect to the happening of the accident. However, the affirmation from an attorney having no personal knowledge of the facts is without evidentiary value and, thus, is insufficient to raise a triable issue of fact (see Zuckerman v City of New York, supra; see also CPLR 3212 [b]). Further, as Johntry himself has personal knowledge of the relevant facts underlying the accident, the purported need to conduct discovery does not warrant denial of the motion (see Jobson v SM Livery, Inc., 175 A.D.3d 1510, 109 N.Y.S.3d 376 [2d Dept 2019]; Pierre v Demoura, 148 A.D.3d 736, 48 N.Y.S.3d 260 [2d Dept 2017]). The "mere hope or speculation that evidence sufficient to defeat a motion for summary judgment may be uncovered" by further discovery is an insufficient basis for denying the motion (Lopez v WS Distrib. Inc., 34 A.D.3d 759, 760, 825 N.Y.S.2d 516, 517 [2d Dept 2006]; see Sapienza v Harrison, 191 A.D.3d 1028, 142 N.Y.S.3d 584 [2d Dept 2021]; Castro v Rodriguez, 176 A.D.3d 1031, 111 N.Y.S.3d 55 [2d Dept 2019]; Stubenhaus v City of New York, 170 A.D.3d 1064, 96 N.Y.S.3d 662 [2d Dept 2019]). Therefore, Librizzi-Prosper's motion for summary judgment dismissing the complaint and cross claims against her is granted.
With respect to plaintiffs' motion for summary judgment on the issue of Johntry's liability, to establish prima facie entitlement to judgment as a matter of law on the issue of liability, a plaintiff is no longer required to show freedom from comparative fault (Rodriguez v City of New York, 31 N.Y.3d 312, 76 N.Y.S.3d 898 [2018]; Bloechle v Heritage Catering, Ltd., supra; Catanzaro v Edery, supra; Marks v Rieckhoff, 172 A.D.3d 847, 101 N.Y.S.3d 63 [2d Dept 2019]; Auguste v Jeter, 167 A.D.3d 560, 560, 88 N.Y.S.3d 509 [2d Dept 2018]).
Plaintiffs' have established, prima facie, entitlement to summary judgment in their favor on the issue of Johntry's liability (see Modena v M&S Mech. Servs., Inc., 181 A.D.3d 802, 118 N.Y.S.3d 433 [2d Dept 2020]; Lopez v Dobbins, 164 A.D.3d 776, 79 N.Y.S.3d 566 [2d Dept 2018]; Tsyganash v Auto Mall Fleet Mgt., Inc., 163 A.D.3d 1033, 83 N.Y.S.3d 74 [2d Dept 2018]). Julien avers that she was operating her vehicle eastbound on Main Street. She avers that as she was approaching the intersection with Ocean Avenue she observed the traffic light turn red. She avers that she brought her vehicle to a stop, and that suddenly, and without warning, it was struck in the rear by Librizzi-Prosper, whose vehicle was struck in the rear by Johntry. She states that the force of the collision with the Librizzi-Prosper vehicle propelled her vehicle forward into a nonparty vehicle, which was stopped in front of her.
Plaintiffs, having established their prima facie burden on the motion, the burden now shifts to defendants to raise a triable issue of fact with respect to whether there was non-negligent explanation for the accident (see Alvarez v Prospect Hosp., supra; Flood v Fillas, supra; see generally Rodriguez v City of New York, supra). Librizzi-Prosper submits the affirmation of her attorney, which states that she takes no position with respect to plaintiffs' motion. Johntry has failed to raise a triable issue of fact, as he submits only the affirmation of attorney, which is insufficient to raise a triable issue of fact (see Zuckerman v City of New York, supra). Therefore, plaintiffs' motion for summary judgment on the issue of Johntry's liability is granted.