Opinion
Index 615177/2018
04-30-2020
NANCY BONO Plaintiff, v. RAKESHKUMAR PATEL Defendant. Mot. Seq. No. 002 - MG
Unpublished Opinion
MOTION DATE 5-1-2019
ADJ. DATE 8-13-2019
LINDA KEVINS, J.S.C.
Justice of the Supreme Court MOTION DATE 5-1-19 ADJ. DATE 8-13-19 Mot. Seq. # 002 - MG
Upon the following papers e-filed and read on this motion for partial summary judgment: Notice of Motion and supporting papers by plaintiff dated April 2, 2019; Notice of Cross Motion and supporting papers; Answering Affidavits and supporting papers by defendant, dated June 25. 2019; Replying Affidavits and supporting papers by plaintiff, dated July 5. 2019; Other; (and after hearing counsel in support and opposed to the motion) it is, ORDERED that plaintiffs motion for an order pursuant to CPLR 3212 (e) granting partial summary judgment in her favor on the issue of liability is granted; and it is further
ORDERED that counsel for the parties, and if a party has no counsel, then the party, are directed to appear before the Court in IAS Part 29, located at the Alan D. Oshrin Courthouse, One Court Street, Riverhead, New York 11901. on July 7, 2020 at 9:30 a.m., for a Conference, or if the court is still operating remotely due to the COVID-19 health crisis, such appearance shall be held remotely on the same date. Counsel and any parties who are not represented by counsel shall contact the court by email at Sufkevins@nvcourts, gov at least five days prior to the date of the scheduled conference to obtain the time and manner of such conference; and it is further
ORDERED that if this Order has not already been entered, plaintiff is directed to promptly serve a certified copy of this Order, pursuant to CPLR §§8019(c) and 2015, upon the Suffolk County Clerk who is directed to hereby enter such order; and it is further
ORDERED that upon Entry of this Order, plaintiff is directed to promptly serve a copy of this Order with Notice of Entry upon all parties or their attorneys and to promptly file the affidavits of service with the Clerk of the Court; and it is further
ORDERED that due to the current health crisis caused by COVID-19 and the resulting filing restrictions imposed upon the Suffolk County Clerk and the Court, the term "promptly" shall mean within ten days of the rescission of such fding restrictions.
This is an action to recover damages for personal injuries allegedly sustained by plaintiff as a result of a motor vehicle accident which occurred on the Long Island Expressway near Bagatelle Road, in the Town of Huntington, New York on August 5, 2015. The accident allegedly happened when a vehicle driven by defendant Rakeshkumar Patel collided with the rear of plaintiff s vehicle.
Plaintiff now moves for partial summary judgment on the issue of liability, arguing that defendant is negligent as a matter of law and was the sole proximate cause of the accident. In support of the motion. plaintiff submits copies of the pleadings, a bill of particulars, a police accident report, and an affidavit of plaintiff.
The court notes that the police accident report submitted by plaintiff is not certified, nor does the police officer state that he witnessed the accident. Consequently, the police report constitutes hearsay and is, thus, inadmissible (see Jiang-Hong Chen v Heart Tr., Inc, 143 A.D.3d 945, 39 N.Y.S.3d 504 [2d Dept 2016]; Allstate Ins. Co. v Ramlall, 132 A.D.3d 617, 17 N.Y.S.3d 308 [2d Dept 2015]; Lacagnino v Gonzalez, 306 A.D.2d 250, 760 N.Y.S.2d 533 [2d Dept 2003]).
In her affidavit, plaintiff states that at the time of the accident, she was traveling eastbound on the Long Island Expressway approximately 25 feet west of exit 49 north and brought her vehicle to a gradual stop due to heavy traffic conditions. She states that her vehicle was stopped in traffic for one minute when it was struck in the rear by a vehicle driven by defendant. The accident report indicates that plaintiffs vehicle sustained damage to its rear end, and that the front end of defendant's vehicle was damaged.
It is well settled that a party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, offering sufficient evidence to demonstrate the absence of any material issues of fact (see Alvarez v Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923 [1986]; Zuckerman v City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595 [1980]). Once such a showing has been made, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action (Alvarez v Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923; Zuckerman v City of New York, 49 N.Y.2d557, 427N.Y.S.2d595).
When the driver of a vehicle approaches another vehicle from the rear, he or she is bound to maintain a reasonably safe rate of speed and control over his or her vehicle, and to exercise reasonable care to avoid colliding with the other vehicle (Tumminello v City of New York, 148 A.D.3d 1084, 49 N.Y.S.3d 739 [2d Dept 2017]; Brothers v Bartling, 130 A.D.3d 554, 13 N.Y.S.3d 202 [2d Dept 2015]; Gutierrez v Trillium USA, LLC, 111 A.D.3d 669. 974 N.Y.S.2d 563 [2d Dept 2013]: Macauley v ELRAC, Inc., 6 A.D.3d 584, 585, 775 N.Y.S.2d 78 [2d Dept 2003]). A rear-end collision with a stopped vehicle creates a prima facie case of negligence with respect to the operator of the rear vehicle and imposes a duty on that operator to rebut the inference of negligence by providing a nonnegligent explanation for the collision (Tutrani v County of Suffolk, 10 N.Y.3d 906, 861 N.Y.S.2d 610 [2008]; Edgerton v City of New York, 160 A.D.3d 809. 74 N.Y.S.3d 617 [2d Dept 2018]; Nowak v Benites. 152 A.D.3d 613, 60N.Y.S.3d 48 [2d Dept 2017];Le Grand v Silberstein, 123 A.D.3d 773, 999 N.Y.S.2d 96 [2d Dept 2014]).
Here, plaintiffs submissions are sufficient to establish, prima facie, her entitlement to judgment as a matter of law on the issue of negligence (see Motta v Gomez, 161 A.D.3d 725, 72 N.Y.S.3d 840 [2d Dept 2018]; Singh v Avis Rent A Car Sys., Inc., 119 A.D.3d 768, 989N.Y.S.2d 363 [2d Dept 2014]; Markesinis vJaquez. 106 A.D.3d 961, 965 N.Y.S.2d 363 [2d Dept 2013]). Therefore, the burden shifts to defendant to rebut the inference of negligence by providing a nonnegligent explanation for the accident (see Arslan v Costello, 164 A.D.3d 1408, 84 N.Y.S.3d 229 [2d Dept 2018]).
In opposition, defendant submits his own affidavit and states that he was traveling eastbound on the Long Island Expressway "at or below the posted speed limit." He states that he was traveling in the left lane of traffic behind plaintiffs vehicle, at a "safe distance" from plaintiffs vehicle and that her vehicle swerved towards the right lane, then swerved back to the left lane, and then abruptly stopped. He states that he firmly applied the brakes, but he was unable to avoid the collision. Defendant alleges that he had no time to take evasive actions.
Defendant's justification for the collision is insufficient to raise a triable issue of fact regarding whether he had a nonnegligent explanation for the accident (Catanzaro v Edery, 172 A.D.3d 995, 101 N.Y.S.3d 170 [2d Dept 2019]). "A driver of a vehicle approaching another vehicle from the rear is required to maintain a reasonably safe distance and rate of speed under the prevailing conditions to avoid colliding with the other vehicle" (Witonsky v New York City Tr. Auth., 145 A.D.3d 938, 939, 43 N.Y.S.3d 505 [2d Dept 2016], quoting Nsiah-Ababio v Hunter. 78 A.D.3d 672, 672, 913 N.Y.S.2d 659 [2d Dept 2010]; see Vehicle and Traffic Law § 1129 [a]). Defendant was required to anticipate such stop, as it was foreseeable according to plaintiffs affidavit regarding the prevailing traffic conditions, and he was under a duty to maintain a safe distance between his vehicle and plaintiffs vehicle, which was directly ahead (see Lopez v Dobbins, 164 A.D.3d 776, 79 N.Y.S.3d 556 [2d Dept 2018]; Waide v ARI Fleet, LT, 143 A.D.3d 975, 39 N.Y.S.3d 512 [2d Dept 2016]).
Here, defendant's affidavit is conclusory and insufficient to raise a triable issue of fact, as his affidavit is devoid of any facts regarding the rate of speed he was traveling, the distance he maintained from plaintiffs vehicle, or the traffic conditions prior to the collision. Therefore, his assertion that plaintiff came to a sudden stop is insufficient to rebut the inference that defendant was negligent (see Auguste v Jeter, 167 A.D.3d 560, 88 N.Y.S.3d 509 [2d Dept 2018]).
Defendant also opposes the mot ion on the grounds that it is premature as he has not conducted discovery. However, defendant has failed to demonstrate that additional discovery may have led to relevant evidence or that facts essential to oppose the motion were exclusively within the knowledge and control of plaintiff (see CPLR 3212 [fj; Figueroa v MTLR Corp.. 157 A.D.3d 861, 69 N.Y.S.3d 359 [2d Dept 2018]; Richards v Burch. 132 A.D.3d 752, 18 N.Y.S.3d 87 [2d Dept2015]; Suero-Sosa v Cardona, 112 A.D.3d 706, 977 N.Y.S.2d 61 [2d Dept 2013]). The "mere hope or speculation that evidence sufficient to defeat a motion for summary judgment may be uncovered during the discovery process" is an insufficient basis for denying the motion (Gasis v City of New York, 35 A.D.3d 533, 534-535, 828 N.Y.S.2d 407, 409 [2d Dept 2006]).
Accordingly, plaintiffs motion for summary judgment in her favor on the issue of liability is granted.
Anything not specifically granted herein is hereby denied. This constitutes the decision and Order of the Court.