Opinion
10380/2016
03-08-2019
Dorothy K. RYCKO, Plaintiff, v. Eleni STELLATOS, et al., Defendants.
:
Papers Numbered
Motion and Cross-Motion 1-19
Opposition 20-21
Reply 22-23
This is a hit-in-the-rear case concerning a four-vehicle accident on the Long Island Expressway headed West. The Court grants the plaintiff's motion only to the extent of granting partial summary judgment for plaintiff on the issue of liability against defendants Eleni Stellatos, Dimitrios Stellatos, and Simon Quy Trac Duong. The vehicle of the Stellatos defendants and that driven by defendant Duong are both responsible legally for this accident. The Court further grants the plaintiff's motion to strike the answers of defendants, Simon Qua Trac Duong and Dennis C. OGallagher and preclude them from offering testimony at a trial.
In this case, the plaintiff was struck in the rear by a car that was operated by defendant, Duong, who, in turn, was struck by a car that operated by defendant Eleni Stellatos. According to the plaintiff, she was traveling on the Long Island Expressway when she was struck in the rear. The plaintiff's car was then apparently pushed into the vehicle being driven by OGallagher. It is completely unclear from this record the theory underlying the plaintiff's lawsuit against OGallagher. In any event, "[a] rear-end collision with a stopped or stopping vehicle creates a prima facie case of negligence with respect to the operator of the moving vehicle and imposes a duty on that operator to rebut the inference of negligence by providing a nonnegligent explanation for the collision." ( Pollard v. Independent Beauty & Barber Supply Co. , 94 AD3d 845, 845-846 [2012] ; see Tutrani v. County of Suffolk , 10 NY3d 906, 908 [2008] ; Delvalle v. Mercedes Benz USA, LLC , 94 AD3d 942 [2012]. Here, the plaintiff met her burden of presenting prima facie proof the negligence of the defendants Dung and Stellatos. The burden thus shifts to the defendants.
On this record, the defendants failed to offer a nonnegligent explanation for this accident. The Court notes that the plaintiff testified at her deposition that, immediately before the accident, she was traveling at a speed of between 40-45 mph and was "like 3, 4 yards" from OGallagher's truck. There is no evidence, however, that the plaintiff stopped suddenly and, thus, either caused the accident or was comparatively negligent. Although the plaintiff may be negligent inasmuch as OGallagher is concerned, she is not comparatively negligent with respects to defendants Duong and Eleni and Demetrios Stellatos.
The Court notes that the aforementioned defendants failed to rebut adequately the inference of negligence by providing a non-negligent explanation for the collision. See , Mosquera v. Roach , 151 AD3d 1056 (2nd Dept. 2017). For this reason, the plaintiff is awarded summary judgment as to defendants, Duong and Eleni and Demetrios Stellatos only on the issue of liability.
The Court rejects the counsel for the Stellatos defendants to treat the plaintiff's motion as premature based on the fact that defendants Duong and OGallagher have not been deposed. The Court notes that counsel for the Stellatos defendants had ample opportunity to get factual details from the plaintiff during her deposition. The issue of the plaintiff's responsibility for this chain collision was, however, never explored. The Court denies the request to adjourn this case for defendants Duong and OGallagher to be deposed. This case is ready for trial. A motion to compel should have been made prior to the filing of this motion. In any event, as demonstrated by the affirmation of plaintiff's attorney, repeated efforts have been made to depose these two defendants. Both, however refuse to submit to depositions. There is nothing to indicate that either of these defendants are willing to cooperate at this time. For this reason, the plaintiff's motion is not premature.
Finally, based upon the repeated refusals of defendants to be deposed in this case, the motions to strike each of their answers under CPLR 3126(3) and to preclude them from offering testimony at a trial held in this case pursuant to CPLR 3126(2) are both granted.
The parties shall appear at the Trial Scheduling Part, at the courthouse located at 88-11 Sutphin Boulevard, Jamaica, New York 11435, on April 2, 2019, for trial.
The foregoing constitutes the decision, order, and opinion of the Court.