Atkins v. Friedland

Full title: JUANISHA ATKINS, Plaintiff, v. THEODORE FRIEDLAND and QUALITY BUS SERVICE…

Court: Supreme Court, Orange County

Date published: Jun 13, 2020

2020 N.Y. Slip Op. 35168 (N.Y. Sup. Ct. 2020)

Opinion

Index No. EF007541-2019

06-13-2020

JUANISHA ATKINS, Plaintiff, v. THEODORE FRIEDLAND and QUALITY BUS SERVICE, LLC, Defendant.

TO: RICHARD A. BERNSLEY, P.C. ATTORNEY FOR THE PLAINTIFF LAROSE & LAROSE, ESQS. ATTORNEYS FOR THE DEFENDANTS

HON. ROBERT A. ONOFRY, J.S.C.

Unpublished opinion

Motion Date: July 1,2020

To commence the statutory time period for appeals as of right (CPLR 5513[a]), you are advised to serve a copy of this order, with notice of entry, upon all parties.

TO: RICHARD A. BERNSLEY, P.C. ATTORNEY FOR THE PLAINTIFF

LAROSE & LAROSE, ESQS. ATTORNEYS FOR THE DEFENDANTS

Present: HON. ROBERT A. ONOFRY, J.S.C.

DECISION AND ORDER

HON. ROBERT A. ONOFRY, J.S.C.

The following papers numbered 1 to 3 were read and considered on a motion by the Plaintiff, pursuant to CPLR § 3212, for summary judgment on the issue of liability.

Notice of Motion- Bernsley Affirmation- Exhibits A-E........................................................... 1-3

Upon the foregoing papers, it is hereby, ORDERED, that the motion is granted.

Introduction

The Plaintiff Juanisha Atkins commenced this action to recover damages allegedly arising from a motor vehicle accident. She now moves for summary judgment on the issue of liability.

The motion is granted.

Factual/Procedural Background

According to the police report of the accident, and a sworn affidavit from the Plaintiff, the Plaintiff was in her vehicle, stopped at an intersection and waiting to make a left turn, when her vehicle was struck from the rear by a vehicle owned by the Defendant Quality Bus Company, LLC and being driven by the Defendant Theodore Friedland.

Discussion/Legal Analysis

A party seeking summary judgment bears the initial burden of establishing a. prima facie entitlement to judgment as a matter of law by tendering competent evidence in admissible form sufficient to eliminate any triable, material issues of fact from the case. If the moving party fails to meet this burden, the papers submitted in opposition need not be considered. If the moving party makes such a prima facie showing, the burden shifts to the opposing party to demonstrate the existence of an issue of fact requiring a trial. Phillip v. D&D Carting Co., Inc., 136 A,D.3d 18 [2^nd Dept. 2015]; Dempster v. Liotti, 86 A.D.3d 169 [2^nd Dept. 2011].

Relevant to the case at bar, a rear-end collision with a stopped or stopping vehicle establishes a. prima facie case of negligence on the part of the operator of the rear vehicle, requiring that operator to come forward with evidence of a non-negligent explanation for the collision in order to rebut the inference of negligence. Nikolic v. City-Wide Sewer & Drain Service Corp., 150 A.D.3d 754 [2^nd Dept. 2017]; Tumminello v. City of New York, 148 A.D.3d 1084 [2^nd Dept. 2017]. A non-negligent explanation may include a mechanical failure, a sudden, unexplained stop of the vehicle ahead, an unavoidable skidding on wet pavement, or any other reasonable cause. Tumminello v. City of New York, 148 A.D.3d 1084 [2^nd Dept. 2017]. However, while a non-negligent explanation for a rear-end collision may include evidence of a sudden stop of the lead vehicle, vehicle stops which are foreseeable under the prevailing traffic conditions, even if sudden and frequent, must be anticipated by the driver who follows, since he or she is under a duty to maintain a safe distance between his or her car and the car ahead. Tummindlo v. City of New York, 148 A.D.3d 1084 [2^Bd Dept. 2017].

To prevail on a motion for summary judgment on the issue of liability in a negligence case, the movant need no longer demonstrate that he or she was free from comparative fault. Davis v. Commack Hotel, LLC, 174 A.D.3d 501 [2^nd Dept. 2019].

Here, the Plaintiff submitted competent evidence in admissible form sufficient to demonstrate, prima facie, that the Defendants may be held liable in negligence for the accident.

Neither Defendant opposed the motion.

Further, nothing in the record otherwise raises a triable issue of fact as to their liability.

Thus, the Plaintiff is granted summary judgment on the issue of liability.

Accordingly, and for the reasons cited herein, it is hereby, ORDERED, that the motion is granted; and it is further, ORDERED that the parties, through respective counsel, are directed to appear for a Status Conference on Tuesday, September 1,2020, at 1:30 p.m., at the Orange County Supreme Court, Court room #3,285 Main Street, Goshen, New York, provided the Courts are open to the public at that time. If not, a virtual conference will be scheduled and counsel will be provided with the appropriate information from the Court to conduct the same.

The foregoing constitutes the decision and order of the court.