Opinion
8201/066.
Decided June 16, 2008.
Defendants ABDUL SHAFIEK (Abdul) and BIBI SHAFIEK (Bibi) move seeking an Order granting them summary judgment over plaintiff and all other defendants in both Action #1 and #2. Abdul and Bibi aver that insofar as the vehicle owned and operated by them was rear-ended by another vehicle, they bear no liability for the accident herein. Defendants DAHILL MOVING STORAGE CO., INC. (Dahill) S/H/A DAHILL MOVING STORAGE and RUFUS SPENCE (Spence) oppose the instant motion averring that questions of fact regarding the negligence of the defendants herein preclude summary judgment. Defendant MIGUEL BELTRE (Beltre) cross-moves for identical relief, for the same reasons, and by adopting and incorporating the arguments and exhibits submitted by Abdul and Bibi. Dahill and Spence oppose Beltre's cross-motion for the same reasons they oppose Abdul and and Bibi's motion.
For the reasons that follow hereinafter Abdul and Bibi's motion is hereby denied. Beltre's cross-motion is also denied.
The instant action is for alleged personal injuries. The complaint alleges that on March 7, 2005, at the intersection of Jamaica Avenue and 120th Street, Kings, NY, at approximately 4:16PM, plaintiff was involved in a multi vehicle accident with vehicles owned and operated by the defendants. It is alleged that defendants were negligent and that said negligence caused plaintiff injury.
Insofar as this Court previously decided a motion wherein all defendants were granted summary judgment over and against plaintiff VIRGINIA ARIAS, insofar as she failed to establish the existence of a serious injury, Action #2 no longer exists and this motion is limited to Action #1, the remaining action.
In support of the instant motion, Abdul and Bibi submit plaintiff's deposition transcript, wherein he testified, in pertinent part, as follows. On March 7, 2005, he was involved in a motor vehicle accident while a passenger within a vehicle operated by defendant VIRGINIA ARIAS (Arias). Arias was operating a red Mitsubishi Montero and both plaintiff and her were en route to a meeting, having just left work. At some point, Arias came to stop on Jamaica Avenue where the same intersected 120th Street. Weather conditions were good and the road was flat. Traffic conditions was heavy on both Jamaica Avenue and 120th Street. Arias came to stop at the light and remained there long enough for the light to turn green and then red again. Aria's could not move her vehicle due to traffic in the intersection. While stopped, plaintiff felt several impacts to the rear of Aria's vehicle. Arias was not using a cell phone and there was no food in the car. The accident involved several vehicles the rearmost vehicle being a truck.
Abdul and Bibi submit Arias' deposition transcript, wherein she testified, in pertinent part, as follows. On March 7, 2005, Arias was involved in an accident with a vehicle owned and operated by her. Said vehicle was a 1998 Mitsubishi Montero. Arias was en route to a second job, having just left another. She was accompanied by the plaintiff and was traveling down Jamaica Avenue. Traffic was heavy and the weather was good. Arias came to a stop at a red light and remained there for two minutes. While stopped she was impacted in the rear three times. Her highest rate of speed was 20 miles per hour and she was not using a cell phone at the time of her accident.
Abdul and Bibi submit Bibi's deposition transcript, wherein she testified, in pertinent part, as follows. On March 7, 2005, she was involved in a motor vehicle accident while operating a motor vehicle owned by her father, defendant ABDUL SHAFIEK (Abdul). The vehicle was a white Honda with four doors. Bibi had just left her mother's house and was en route to the grocery store. As she traveled on Jamaica Avenue, she came to stop near the intersection of Jamaica Avenue and 120th Street. She came to a stop behind three other vehicles due to a red traffic signal. While all the vehicles were stopped, she was impacted in the rear by another vehicle and propelled into the rear of the car in front of her a black livery car. The weather was fair, Bibi was not using a cell phone, and she did not experience any mechanical issue with her vehicle. In total five vehicles were involved in the accident herein.
Abdul and Bibi submit Spence's deposition transcript, wherein he testified, in pertinent part, as follows. On March 7, 2005, while employed by defendant Dahill, he was involved in a motor vehicle accident. Spence was driving a box truck owned by Dahill and was en route to Brooklyn after dropping off and picking up some cargo. While traveling on Jamaica, he came to stop behind a vehicle. Said vehicle and the others were stopped due to red light. One car length separated Spence from the light and the vehicle in front of him. The light turned green and the vehicle in front of Spence moved several feet. Spence began to coast and move forward. The car in front of him stopped suddenly and Spence impacted the rear of said vehicle.
Abdul and Bibi submit a copy of an unsworn and uncertified police accident report. No foundation for the same's admission is laid.
In support of the instant cross-motion, Beltre submits no evidence and instead cites to the evidence submitted by Abdul and Bibi.
In opposition to the instant motion and cross-motion, Dahill and Spence submit portions of Arias, Bibi, Spence and plaintiff's deposition transcripts.
Dahill and Spence submit defendant JASBIR SINGH's (Singh) deposition transcript, wherein he testified, in pertinent part as follows. On March 7, 2005, he was involved in an accident while operating a vehicle, a Toyota Rav 4, owned by him. Singh had just left his home and was en route to the bank to make a deposit. As he traveled down Jamaica Avenue, he came to stop at the intersection of Jamaica Avenue and 120th Street. He stopped because the light thereat was red. Traffic was light but had backed up along Jamaica avenue from the next intersection. When Singh came to stop, he was the first car before the light and there was a Mitsubishi in front of him past the intersection. The same was stopped due to traffic. At some point, the light changed to green and both Singh and the Mitsubishi began to move slowly. Singh traveled a short distance and heard several noises behind him. Immediately thereafter, he was impacted in the rear by another vehicle, a Lincoln. Singh felt three impacts to the rear of his vehicle. Said impacts propelled him into the rear of the Mitsubishi, which was moving slowly at the time. The accident involved a total of five vehicles and the were from first to last, the Mitsubishi, Singh's Rav 4, a Lincoln, a Honda, and a truck. At the time of the accident, Singh had not experienced any mechanical trouble with his vehicle, he was not using a cell phone, was not smoking or eating.
Dahill and Spence submits Beltre's deposition transcript, wherein, he testified, in pertinent part, as follows. On March 7, 2005, he was involved in a motor vehicle accident while operating his 1995 Lincoln Town car. Beltre was traveling on Jamaica Avenue and came to a stop near the intersection of Jamaica Avenue and 120th Street. Beltre came to stop because the light was red and was the third car before the intersection and stopped at the light. After being stopped for thirty seconds, Beltre heard screeching tires, a loud crash, and heard a crash to the car directly behind him, a white vehicle, which had also been stopped. Beltre also saw a truck behind him. Thereafter, Beltre felt a crash to the rear of his vehicle and the same propelled him into the rear of the SUV directly in front of him. Prior to being impacted, Beltre and the cars in front of him were stopped. Beltre stated that the car behind him had been impacted by a truck behind said car.
The Law and Standard on Summary Judgment
The proponent of a motion for summary judgment carries the initial burden of tendering sufficient admissible evidence to demonstrate the absence of a material issue of fact as a matter of law. Alvarez v. Prospect Hospital, 68 NY2d 320 (1986); Zuckerman v. City of New York, 49 NY2d 557 (1980). There is no requirement that the proof for said motion be submitted in affidavit form, rather, the requirement is that the evidence proffered be in admissible form. Muniz v. Bacchus, 282 AD2d 387 (1st Dept. 2001). Accordingly, affirmations from attorneys having no personal knowledge of the facts are not evidence and offer nothing more than hearsay. Reuben Israelson v. Sidney Rubin, 20 AD2d 668 (2nd Dept. 1964); Erin Federico v. City of Mechanicville, 141 AD2d 1002 (3rd Dept. 1988); Harry L. Cohen v. Genesee Supply Co., 7 AD2d 886 (4th Dept. 1959). Consequently any such submissions are inadmissible and cannot be the basis for creating an issue of fact sufficient to preclude summary judgment. Johnson v. Phillips, 161 AD2d 269 (1st Dept. 1999); Rue v. Stokes, 191 AD2d 245 (1st Dept. 1993). Similarly, unsworn accident reports are inadmissible and cannot be considered by the court. Id.; Reed v. New York Coty Transit Authority, 299 AD2d 330 (2nd Dept. 2002); Hegy v. Coller, 262 AD2d 606 (2nd Dept. 1999).
Once movant meets his initial burden, the burden shifts to the opponent, who must then produce sufficient evidence, also in admissible form, to establish the existence of a triable issue of fact. Zuckerman v. City of New York, 49 NY2d 557 (1980). The burden, however, always remains where it began, with the movant on the issue. Hence, "if the evidence on the issue is evenly balanced, the party that bears the burden must loose." Director Office of Workers Compensation Programs v. Greenwich Collieris, 512 U.S. 267 (1994); 300 East 34th Street Co. V. Habeeb, 248 AD2d 50 (1st Dept. 1997).
It is worth noting, however, that while the movant's burden to proffer evidence in admissible form is absolute, the opponent's burden is not. On this issue the Court of Appeals has stated
[t]o obtain summary judgment it is necessary that the movant establish his cause of action or defense sufficiently to warrant the court as a matter of law in directing summary judgment' in his favor, and he must do so by the tender of evidentiary proof in admissible form. On the other hand, to defeat a motion for summary judgment the opposing party must show facts sufficient to require a trial of any issue of fact.' Normally if the opponent is to succeed in defeating a summary judgment motion, he too, must make his showing by producing evidentiary proof in admissible form. The rule with respect to defeating a motion for summary judgment, however, is more flexible, for the opposing party, as contrasted with the movant, may be permitted to demonstrate acceptable excuse for his failure to meet strict requirement of tender in admissible form. Whether the excuse offered will be acceptable must depend on the circumstances in the particular case. (Internal citations omitted).
Friends of Animals v. Associated Fur Manufacturers, Inc., 46 NY2d 1065, 1067-1068 (1979). Accordingly, generally, the opponent of a motion for summary judgment seeking to have court consider inadmissible evidence must proffer an excuse for proffering the inadmissible evidence in inadmissible form. Johnson v. Phillips, 161 AD2d 269 (1st Dept. 1999). Additionally, while evidence inadmissible when the motion is made and inadmissible when the case is tried, is insufficient to raise an issue of a fact precluding summary judgment; inadmissible evidence, whose inadmissability has been excused and which may likely be admissible at trial, may be considered. Phillips v. Joseph Kantor Company, 31 NY2d 307 (1972). In Phllips, for example, the court discussed that in lieu of affidavits from actual witnesses, detailing the substance of their testimony, affidavits listing witnesses' names, the substance of their testimony, and how said witnesses acquired their knowledge, could be considered and could raise an issue of fact sufficient to defeat summary judgment. Id. Similarly, in Zuckerman v. City of New York, 49 NY2d 557 (1980), the court discounted an attorney affirmation as speculative, in that said attorney lacked no personal knowledge of the facts he was proffering. Id. The court, however, in recognizing that inadmissible evidence could be used to preclude summary judgment, stated that if said attorney had personal knowledge of a witnesses testimony and that witnesses' testimony created an issue fact, said affirmation would suffice to defeat summary judgment. Id.; See, Indig v. Finkelstein, 23 NY2d 728 (1968); Graso v. Angerami, 79 NY2d 813 (1991).
When deciding a summary judgment motion the role of the Court is to make determinations as to the existence of bonafide issues of fact and not to delve into or resolve issues of credibility. As the Court stated in Knepka v. Talman, 278 AD2d 811 (4th Dept. 2000):
Supreme Court erred in resolving issues of credibility in granting defendants' motion for summary judgment dismissing the complaint (see, Mickelson v. Babcok, 190 AD2d 1037, 593 NYS2d 657; see generally, Black v. Chittenden, 69 NY2d 665, 511 NYS2d 833, 503 NE2d 1370; Capelin Assocs. v. Globe Mfg. Corp., 34 NY2d 338, 34,1 357 NYS2d 478, 313 NE2d 776). Any inconsistencies between the deposition testimony of plaintiffs and their affidavits submitted in opposition to the motion present issues for trial(see, Schoen v. Rochester Gas Elec., 242 AD2d 928, 665 NYS2d 372; Mickelson v. Babcock, supra).
See also, Yaziciyan v. Blancato, 267 AD2d 152 (1st Dept. 1999); Perez v. Bronx Park Associates, 285 AD2d 402 (1st Dept. 2001); Glick Dullock v. Tri-Pac Export Corp., 22 NY2d 439 (1968); Singh v. Kolcaj Realty Corp., 283 AD2d 350 (1st Dept. 2001).
Accordingly, the Court's function when determining a motion for summary judgment is issue finding and not issue determination. Sillman v. Twentieth Century Fox Film Corp., 3 NY2d 395 (1957). Lastly, because summary judgment is such a drastic remedy, it should never be granted when there is any doubt as to the existence of a triable issue of fact. Rotuba Extruders v. Ceppos, 46 NY2d 223 (1978). When the existence of an issue of fact is even debatable, summary judgment should be denied. Stone v. Goodson, 8 NY2d 167 (1960). It is well established that inadmissable hearsay is insufficient to raise any triable issues of fact sufficient to defeat summary judgment. Schwartz v. Nevatel Communications Corp., 778 NY2d 308 (2nd Dept. 2004); Zuckerman v. City of New York, 49 NY2d 557 (1980).
Self serving affidavits, meaning those which contradict previous deposition testimony, will not be considered by the Court in deciding summary judgment and cannot raise a triable issue of fact sufficient to defeat summary judgment. Lupinsky v. Windham Construction Corp., 293 AD2d 317 (1st Dept 2002); Joe v. Orbit Industries, Ltd., 269 AD2d 121 (1st Dept. 2000); Kistoo v. City of New York, 195 AD2d 403 (1st Dept. 1993).
A defendant seeking summary judgment must establish prima facie entitlement to such relief as a matter of law by affirmatively, with evidence demonstrating the merits of the claim or defense, and not merely by pointing to gaps in plaintiff's proof. Mondello v. DiStefano , 16 AD3d 637 (2nd Dept. 2005); Peskin v. New York City Transit Authority, 304 AD2d 634 (2nd Dept. 2003).
Motor Vehicle Accidents
In cases alleging negligence as the result of a motor vehicle accident, a plaintiff establishes prima facie entitlement to summary judgment by demonstrating that the defendant was negligent and that said negligence was the proximate cause of the accident. Bodner v. Greenwald, 296 AD2d 564 (2nd Dept. 2000); Maxwell v. Land-Saunders, 233 AD2d 303 (2nd Dept. 1996).
In the absence of evidence to the contrary, a defendant who establishes that he was not negligent in the operation of his vehicle is entitled to summary judgment. Dinham v. Wagner , 48 AD3d 349 (1st Dept. 2008); Cerda v. Parsley, 273 AD2d 339 (2nd Dept. 2000). In Wagner, the court held that defendant established prima facie entitlement to summary judgment when she tendered evidence evincing that she was not at fault for the accident therein and could not have avoided the same. Dinham v. Wagner , 48 AD3d 349 (1st Dept. 2008). In Cerda, the court, in discussing a rear end collision, found that the defendant established that she had not acted negligently with respect to operation of her vehicle. Id. Defendant proffered evidence that she had safely brought her vehicle to a complete stop prior to collision and that she had been propelled into the rear of another vehicle after a stop and after being hit in the rear by another vehicle. Id. The Court, after having no evidence that the defendant acted negligently or otherwise contributed to the accident, granted summary judgment in her favor. Id. Alternatively, a defendant can establish prima facie entitlement to summary judgment by demonstrating that the plaintiff was negligent in the operation of his/her vehicle and that said negligence was the sole proximate cause of the accident at issue. Espinoza v. Loor, 299 AD2d 167 (2nd Dept. 2002); Borges v. Zukowski , 22 AD3d 439 (2nd Dept. 2005).
Hit in the Rear Motor Vehicle Collisions
A rear-end collision with a stopped vehicle is prima facie evidence of negligence on the part of the operator of the second, offending, and rear ending vehicle. Johnson v. Phillips, 261 AD2d 269 (1st Dept. 1999); Mitchell v. Gonzalez, 269 AD2d 250 (1st Dept. 2000); Danza v. Longieliere, 256 AD2d 434 (1st Dept. 1998); Carhuayano v. J R Hacking, 28 AD3d 413 (2nd Dept. 2006). When such facts are established, the operator of the moving, offending, colliding vehicle is required to rebut the inference of negligence with a cognizable excuse. Id. The rationale being that when a vehicle is stopped anyone traveling behind said vehicle is charged with the duty of coming to a timely halt, Edney v. Metropolitan Suburban Bus Authority, 178 AD2d 398 (2nd Dept. 1991), and maintaining a safe distance between itself and the vehicle traveling in front of it. Rebecchi v. Whitmore, 172 AD2d 600 (2nd Dept. 1991). Hence, a rear-end collision, when one of the vehicles is stopped, creates a prima facie case of liability with respect to the operator of the moving, rear-ending vehicle. Id. Absent an excuse, it is negligence as a matter of law if a stopped vehicle is hit in the rear. DeAngelis v. Kirschner, 171 AD2d 593 (1st Dept. 1991). The same is true when a rear end collision occurs with a vehicle coming to stop. Chepel v. Meyers, 396 AD2d 235 (2nd Dept. 2003); Filippazzo v. Santiago, 277 AD2d 419 (2nd Dept. 2000); Power v. Hupart, 260 A.D2d 458 (2nd Dept. 1999).
In the Second Department, cognizable excuses for a rear end collision are mechanical failure, a sudden stop by the vehicle ahead, or unavoidable skidding on a wet surface. Carhuayano v. J R Hacking, 28 AD3d 413 (2nd Dept. 2006); Chepel v. Meyers, 396 AD2d 235 (2nd Dept. 2003); Filippazzo v. Santiago, 277 AD2d 419 (2nd Dept. 2000); Power v. Hupart, 260 A.D2d 458 (2nd Dept. 1999); Leal v. Wolff, 224 AD2d 392 (2nd Dept. 1996). In the First Department however, a claim that a vehicle stopped short or that roadway was wet is not in it of itself sufficient to rebut the presumption of negligence. Mitchell v. Gonzalez, 269 AD2d 250 (1st Dept. 2000); Danza v. Longieliere, 256 AD2d 434 (1st Dept. 1998). This is because
A driver is 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.
Id. at 251.
A failure by the operator of the offending vehicle to rebut the finding of negligence with admissible evidence requires judgment in favor of the other vehicle. Id.; Grimes-Carrion v. Carroll , 13 AD3d 125 (1st Dept. 2004); Bendiik v. Dybowski, 227 AD2d 228 (1st Dept. 1996).
It is well settled that in a chain reaction collision, the rear-most driver bears the rebuttable presumption of responsibility. Ferguson v. Honda Lease Trust , 34 AD3d 356 (1st Dept. 2006); De La Cruz v. Leong , 16 AD3d 199 (1st Dept. 2005); Mustafaj v. Driscoll , 5 AD3d 138 (1st Dept. 2004).
Discussion
Abdul and Bibi's motion is hereby denied. The evidence submitted by Abdul and Bibi fails to establish prima facie entitlement to summary judgment insofar as the very same evidence creates a question of fact as to how the instant accident occurred and who bears responsibility for the same. Preliminarily, a portion of the evidence submitted by Abdul and Bibi establishes that Bibi was in no way negligent in the operation of her vehicle and that her actions did not proximately cause the accident herein. However, the very same evidence also establishes that the accident herein involved multiple impacts to plaintiff's vehicle, thereby calling into question Bibi's version of the events herein. In terms of admissible evidence, Abdul and Bibi submitted plaintiff, Bibi, Spence, and Aria's deposition transcripts. Arias testified that the accident herein occurred as she was stopped at red light. She had been stopped at said light for two minutes. As she was stopped, she was impacted in the rear by another vehicle, three times. Plaintiff's testimony corroborates Arias' testimony, insofar as plaintiff avers that Arias's vehicle was impacted in the rear several times. Bibi testified that she impacted the rear of the car in front of her, while stopped, after she was impacted in the rear by a truck. Said impact propelled Bibi into the rear of the car directly in front of her. Spence testified that he impacted a vehicle while the same was stopped. Spence testified that he came to a stop behind said vehicle since the light controlling traffic on Jamaica Avenue was red. Once said light turned green the vehicle in front of him moved and the stopped. Spence moved his truck, letting the same coast, and then impacted the rear of the vehicle in front of him.
The testimony above establishes that Bibi was in no way negligent in the operation of her vehicle and that she was not the proximate cause of the accident. Her testimony was that she was standing still in traffic and was impacted in the rear. It was this impact that caused her to strike the vehicle in front her. While Bibi is rebuttably negligent in that she impacted another car in the rear, she nevertheless negates said negligence by proffering a non-negligent excuse for impacting the car directly in front of her. It is well settled that a rear-end collision with a stopped vehicle is prima facie evidence of negligence on the part of the operator of the second, offending, and rear ending vehicle. When such facts are established, the operator of the moving, offending, colliding vehicle is required to rebut the inference of negligence with a cognizable excuse. In this case, as just discussed, Bibi's evidence rebuts any presumed negligence inasmuch as she testified that she was rear-ended while stopped and propelled into the rear of the vehicle in front of her.
Notwithstanding the foregoing, the very evidence submitted creates a material issue of fact with regard to the happening of the accident herein and whether the same happened as described by Bibi. Both plaintiff and Arias testified that they were impacted in the rear multiple times. This evidence raises a material issue of fact insofar as it calls into question whether there were multiple accidents, some of which ensued prior to Spence striking Bibi in the rear and some which were caused Bibi and or Beltre. Algarin v. Reich, 291 AD2d 308 (1st Dept. 2002). (Court held that evidence of multiple impacts raised an issue of fact with regard to defendant's negligence insofar as it tended to demonstrate that defendant struck plaintiff's vehicle prior to being struck in the rear.). Accordingly, Abdul and Bibi fail to establish prima facie entitlement to summary judgment and the Court need not address the sufficiency of Dahill and Spence's opposition.
Beltre's cross-motion is hereby denied, not only for the reasons just discussed above, but because to the extent that Beltre's only evidence in support of his instant cross-motion was that which was submitted by Abdul and Bibi, Beltre failed to tender any evidence regarding his actions in relation to the accident herein. Abdul and Bibi, did not submit Beltre's deposition transcript, and as such, Beltre was left with no evidence regarding his actions, which would permit theis Court to conclude that he was neither negligent nor the proximate cause of the accident herein. Thus, Beltre fails to raise prima facie entitlement to summary judgment and his cross-motion is hereby denied. Accordingly, the Court need not address the sufficiency of the opposition papers submitted by Dahill and Spence. It is hereby
ORDERED that Dahill and Spence serve a copy of this Order with Notice of Entry upon all parties within thirty (30) days of this Order's entry.
This constitutes this Court's decision and Order.