Opinion
INDEX NO. 117030/05
10-07-2009
MYRIAM B. STEPHENS, Plaintiff, v. LIBBY TAXI, INC., KWABENA OPPONG, OCTAVIA MELLADO AND DAVID MELLADO, Defendants.
PRESENT: HON. PAUL WOOTEN Justice
MOTION DATE __________
MOTION SEQ. NO. 001 MOTION CAL. NO. 108
On October 19, 2004, plaintiff was involved in a collision while a passenger in a taxicab owned by defendant Liberty Taxi and operated by defendant Kwabena Oppong. While stopped at a red light, defendant Oppongs taxicab was struck in the rear by defendant Octavio Mellado and David Mellado's vehicle. The accident occurred on Park Avenue near its intersection with 33rd Street. Plaintiff commenced this action to recover damages for alleged personal injuries suffered as a result of the subject accident. Defendants Liberty Taxi and Kwabena now move for an order pursuant to CPLR § 3212, granting summary judgment on the issue of liability. Plaintiff cross-moves requesting the same relief. No opposition papers were submitted.
SUMMARY JUDGEMENT STANDARD
The proponent of a motion for summary judgment is required to make a prima facie showing of entitlement to judgment as a matter of law, by advancing sufficient "evidentiary proof in admissible form" to demonstrate the absence of any material issues of fact (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Thomas v Holzberg, 751 NYS2d 433, 434 . The motion must be supported "by affidavit [from a person having knowledge of the facts], by a copy of the pleadings and by other available proof . . ." (CPLR § 3212 [b]). A party may also demonstrate a prima facie entitlement to summary judgment through the affirmation of its attorney based upon documentary evidence (Zuckerman, supra; Prudential Securities Inc. v Rovello, 692 NYS2d 67 ).
Where the movant has established a prima facie case of negligence, respondants are required to submit evidentiary proof in admissible form raising triable issues of material fact in order to defeat the motion for summary judgment (Mazurek v Metropolitan Museum of Art, 812 NYS2d 12 ; Perez v Brux Cab Corp., 674 NY2d 343 ; Zuckerman v City of New York, supra).
DISCUSSION
In support of their motion Defendants Liberty Taxi and Kwabena submit, inter alia, a copy of the pleadings and the deposition testimonies of plaintiff, defendant Oppong and defendant David Mellado which establish that defendant Oppong's taxicab was stopped at a traffic light when it was struck in the rear by defendants' vehicle. No opposition papers were submitted.
It is well settled that the "driver of a motor vehicle must maintain a safe distance between his vehicle and the one in front of him, and that a rear-end collision with a stopped vehicle establishes a prima facie case of negligence on the part of the driver who strikes the vehicle in front, unless the operator of the rear vehicle can come forth with an adequate, non-negligent explanation for such accident" (see Woodley, v Ramirez, 810 NYS2d 125 ; Garcia v Bakemark Ingredients Inc., 797 NY2d 467 , quoting Johnson v Phillips, 690 NYS2d 545 ; Mullen v Rigor, 778 NYS2d 168 [2004]; Agramonte v City of New York, 732 NYS2d 414 [2001]). In addition, a "driver is expected to drive at a sufficiently safe speed and to maintain enough distance between himself and cars ahead of him so as to avoid collisions with stopped vehicles taking into account the weather and road conditions" (Malone v Morillo, 775 NY2d 312 , quoting Mitchell v Gonzalez, 703 NY2d 124 ).
On the unrefuted evidence, plaintiff and defendants Liberty Taxi and Kwabena Oppong have established prima facie entitlement to summary judgment, as the defendants Liberty Taxi and Kwabena Oppong's vehicle was a stationary vehicle involved in a rear-end collision (see Sandra Manano v New York City Transit Authority, 831 NYS2d 155 ; Woodley, v. Ramirez, supra; Garcia v Bakemark Ingredients, supra).
The burden then shifted to defendants Octavio Mellado and David Mellado, to rebut the inference of negligence by offering a non-negligent explanation for the contact (Ferguson v Honda Lease Trust, 826 NYS2d 10 ), and thereby, raise triable issues of material fact in order to defeat the motion for summary judgment (Mazurek v Metropolitan Museum of Art, supra; Perez v Brux Cab Corporation, supra; Zuckerman v City of New York, supra.
Defendants Octavio Mellado and David Mellado have failed to provide any such explanation, or to demonstrate culpable negligence on the part of the other parties.
For these reasons and upon the foregoing papers, it is,
ORDERED that the defendants Liberty Taxi and Kwabena Oppong's motion for summary judgment on the issue of liability is granted, without opposition, and the complaint is dismissed as against defendant Liberty Taxi and Kwabena Oppong, only; and it is further
ORDERED that the plaintiff's cross-motion is hereby granted as against the defendants Octavio Mellado and David Mellado, only; and it is further
ORDERED that the matter be set down for a trial on the issue of damages against the defendants Octavio Mellado and David Mellado, and it is further,
ORDERED that the plaintiff shall serve a copy of this order with notice of entry upon all parties, and it is further,
ORDERED that within 60 days from the date hereof, plaintiff shall serve a copy of this order with a notice of entry, a note of issue and a statement of readiness upon the Clerk of the Trial Support Office and shall pay the proper fees, if any, and said Clerk shall thereupon place this action on the appropriate trial calendar for the assessment of damages directed herein.
This constitutes the Decision and Order of the Court.
Dated: October 7, 2009
/s/ _________
Paul Wooten J.S.C.