Opinion
Index No. 27642/2018E
01-17-2019
KAREEM BARNES Plaintiff. v. EMMANUEL MCCULLOUGH and 54TH STREET AUTO CENTER. INC., Defendants.
Unpublished Opinion
DECISION AND ORDER
Hon. JOHN R. HIGGITT A.J.S.C.
The following papers numbered 7 to 14 and 19 to 24 in the NYSCEF System were read on this motion for SUMMARY JUDGMENT (LIABILITY) , noticed on September 20, 2018 and duly submitted as No. 47 on the Motion Calendar of October 25, 2018.
NYSCEF Doc. Nos.
Notice of Motion - Exhibits and Affidavits Annexed
7-14
Notice of Cross-Motion Exhibits and Affidavits Annexed
Answering Affidavit and Exhibits
20-22
Replying Affidavit and Exhibits
23-24
Filed Papers
Memoranda of Law
Stipulations
19
Upon the foregoing papers, plaintiffs motion for partial summary judgment on the issue of defendants' liability for causing the subject motor vehicle accident is granted, in accordance with the annexed decision and order.
This is a negligence action to recover damages for personal injuries plaintiff sustained in a motor vehicle accident that occurred on April 9, 2018. Plaintiffs vehicle had been stopped when the defendants' vehicle struck plaintiffs vehicle in the rear. For the reasons that follow; plaintiff s motion is granted.
"A rear-end collision with a stationary vehicle creates a prima facie case of negligence requiring a judgment in favor of the stationary vehicle unless defendant proffers a nonnegligent explanation for the failure to maintain a safe distance ... A driver is expected to drive at a sufficiently safe speed and to maintain enough distance between himself [or herself] and cars ahead of him [or her] so as to avoid collisions with stopped vehicles, taking into account weather and road conditions" (LaMasa v Bachman, 56 A.D.3d 340, 340 [1st Dept 2008]). A rear-end collision constitutes a prima facie case of negligence against the rearmost driver in a chain confronted with a stopped or stopping vehicle (see Cabrera v Rodriguez, 72 A.D.3d 553 [1st Dept 2010]).
Vehicle and Traffic Law § 1129(a) states that a "driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon and the condition of the highway" (see Darmento v Pacific Molasses Co., 81 N.Y.2d 985, 988 [1993]). Based on the plain language of the statute, a violation is clear when a driver follows another too closely without adequate reason and that conduct results in a collision (Id.).
Plaintiff satisfied her prima facie burden, establishing her entitlement to judgment as a matter of law on the issue of defendants' liability (see CPLR 3212[b]). Plaintiff submitted a copy of the pleadings and her affidavit. Plaintiff averred that she had been double-parked for about two minutes with her hazard lights activated when defendants' vehicle struck the rear of her vehicle.
In opposition, defendants failed to raise a triable issue of fact as to their liability (see Zuckerman v City of New York. 49 N.Y.2d 557 [1980]). Defendants submitted the affidavit of defendant McCullough in which he averred that at the lime of the accident, the defendants' vehicle was stopped behind plaintiffs vehicle because of traffic. Defendant McCullough also averred that once traffic started moving, plaintiffs vehicle began to move and then, without warning, plaintiff s vehicle stopped for no reason.
Defendants failed to raise an issue of fact as to defendants' liability. The general rule regarding liability for rear-end accidents "has been applied when the front vehicle stops suddenly in slow-moving traffic; even if the sudden stop is repetitive; when the front vehicle, although in stop-and-go traffic, stopped while crossing an intersection; and when the front car stopped after having changed lanes" (Johnson v Phillips, 261 A.D.2d 269, 271 (1st Dept 1999]). The sudden stop of the lead vehicle, without more (.see Cabrera, supra), "is generally insufficient to rebut the presumption of non-negligence on the part of the lead vehicle" (Woodley v Ramirez. 25 A.D.3d 451. 452 [1st Dept 2006]). Additionally, defendant McCullough's statement in the police report that he had taken his eyes off the road constitutes a party admission (.see Niyazov v Bradford, 13 A.D.3d 501 [2nd Dept 2004]).
At mst, defendant McCullough's affidavit raises an issue of fact as to plaintiff s comparative fault, not defendants' liability. Because plaintiff established as a matter of law that defendants were negligent and that their negligence was a proximate cause of plaintiff s injuries, the existence of a triable issue of fact on the issue of plaintiff s comparative fault does not affect plaintiffs right to summary' judgment on the issue of defendants' liability (see Rodriguez v City of New York, 31 N.Y.3d 212 [2018]).
The court notes that plaintiff did not seek (and the court has not considered) dismissal of defendants' affirmative defense of plaintiffs comparative fault (see CPLR 2214[a]; cf Poon v Nisanov, 162 A.D.3d 804 [2nd Dept 2018]).
Accordingly, it is
ORDERED, that plaintiffs motion for partial summary judgment on the issue of defendants' liability is granted.
This constitutes the decision and order of the court.