Opinion
Index No. 33859/2019E
05-02-2022
Joe CUPELES, Plaintiff, v. Gilberto CARBALLOSA and Groome Industrial Service Group, LLC, Defendants.
Plaintiff Joe Cupeles — Mark W. Walsh, Esq. (mw@rosenbaumnylaw.com), Rosenbaum & Rosenbaum, P.C., 100 Wall Street, 15th Floor, New York, NY 10005, (212) 514-5007 Defendants Gilberto Carballosa and Groome Industrial Service Group, LLC — Sandra D. Lovell, Esq. (slovell@mdmc-law.com), McElroy, Deutsch, Mulvaney & Carpenter, LLP, 1300 Mount Kemble Avenue, P.O. Box 2075, Morristown, NJ 07962, (973) 993-8100
Plaintiff Joe Cupeles — Mark W. Walsh, Esq. (mw@rosenbaumnylaw.com), Rosenbaum & Rosenbaum, P.C., 100 Wall Street, 15th Floor, New York, NY 10005, (212) 514-5007
Defendants Gilberto Carballosa and Groome Industrial Service Group, LLC — Sandra D. Lovell, Esq. (slovell@mdmc-law.com), McElroy, Deutsch, Mulvaney & Carpenter, LLP, 1300 Mount Kemble Avenue, P.O. Box 2075, Morristown, NJ 07962, (973) 993-8100
Veronica G. Hummel, J.
In accordance with CPLR 2219(a), the decision herein is made upon consideration of all papers filed by the parties in NYSCEF in support of and in opposition to: (1) JOE CUPELES's ("Plaintiff ") motion (Seq. No. 2) seeking (a) an order, pursuant to CPLR § 3212, granting him partial summary judgment against defendants GILBERTO CARBALLOSA ("Carballosa ") and GROOME INDUSTRIAL SERVICE GROUP, LLC ("Groome "; and, together with Carballosa, "Defendants ") on the issue of liability, including Plaintiff's own comparative negligence, and (b) an order, pursuant to CPLR § 3212, dismissing Defendants’ Fourth, Sixth, Seventh, Tenth, and Eleventh Affirmative Defenses; and (2) Defendants’ cross-motion (Seq. No. 2) seeking an order, pursuant to CPLR § 3212, granting them summary judgment dismissing all claims against them. Oral argument on the motion and cross-motion was held before the Court virtually via Microsoft Teams on October 19, 2021.
This is a personal-injury action arising out of a two-vehicle rear-end collision that occurred on April 22, 2019, at approximately 4:30 a.m., on the Cross Bronx Expressway (the "Cross Bronx "), at or near Webster Avenue, in the Bronx, New York (the "Accident "). In short, Plaintiff entered onto the eastbound Cross Bronx, changed lanes from the right lane to the center lane and then to the left lane, and, upon entering the left lane, was forced to come to a sudden stop to avoid colliding with a disabled vehicle. Defendants’ vehicle, which had been traveling in the left lane before Plaintiff's vehicle entered it, struck Plaintiff's vehicle in the rear. At the time of the Accident, Defendants’ vehicle was being driven by Carballosa with the knowledge and consent of its owner, Groome.
Liability is hotly contested in this matter. The parties have each filed a bevy of materials in support of their own claims of freedom from responsibility and in opposition to the other's attempts to assign them blame. The Court has reviewed all of these materials—including a surreply, a reply to the surreply, and multiple affidavits and reports from accident-reconstruction experts—and considers them to the extent set forth below.
In the end, there is no dispute that Defendants rear-ended Plaintiff. Resolution of the motion and cross-motion turns, rather, on whether Plaintiff's lane changes and sudden stop created an emergency situation for Defendants. The Court concludes, based on the parties’ submissions, and for all of the reasons discussed below, (a) that the emergency doctrine is inapplicable to the circumstances underlying the Accident and (b) that there are questions of fact as to Plaintiff's comparative negligence. Accordingly, the motion is GRANTED IN PART , and the cross-motion is DENIED .
I. THE PARTIES’ SUBMISSIONS
A. Plaintiff's Deposition Testimony
Plaintiff was deposed on July 22, 2020. He now submits the transcript of his deposition in support of his motion.
During his deposition, Plaintiff testified that, in the early morning of April 22, 2019, between 4:00 and 5:00 a.m., he was driving his 2012 Toyota Camry on the Cross Bronx on his way to work. According to Plaintiff, traffic was light when he first entered onto the Cross Bronx, but it began to become congested as he drove. Where the Accident occurred, there are 3 lanes of traffic.
In Plaintiff's own words, the Accident occurred as follows:
From Jerome Avenue I got onto the highway on the far right lane, the first lane. I moved over to the middle lane because that's the lane I was traveling in. I was in the middle lane and then the traffic started getting congested. So I looked over to my left and there's no traffic in front, there was no traffic behind me, so I signaled left. I touched onto the left lane. As I'm going I see a stalled vehicle in front of me, so I started slowing down. So at that point I knew everybody was slowing down because that stalled vehicle was there. I started slowing down and I just felt the impact in the rear of my car.
Plaintiff further testified that he did not see the stalled vehicle prior to entering the left lane. After the Accident, Plaintiff exited his vehicle, examined the damage to his vehicle, and then spoke to Carballosa, who allegedly told Plaintiff that "he was sorry, [and] it was his fault for rear ending" Plaintiff.
B. Defendants’ Accident Reports
In response to Plaintiff's discovery demands, Defendants produced two internal Groome accident reports, both dated April 22, 2019 (i.e. , the date of the Accident). Both reports purport to have been drafted and signed by Carballosa. Plaintiff submits the reports in support of his motion and in opposition to the cross-motion.
In the first report, in response to the question "What do you think caused the accident?," Carballosa handwrote, "A vehicle in front of me stopped suddenly [illegible] in front of the [illegible] another accident. At the moment [illegible] car for I hit it from behind." The report also contains a column of "yes" or "no" questions, and Carballosa replied "no" to the questions "Do you think you are at fault?" and "Do you think the other driver is at fault?" He replied "yes" to the question "Did your vehicle malfunction?"
In the second report, in response to the prompt "Describe the incident in detail (what action of employee or process led to the incident)," Carballosa handwrote, "A vehicle suddenly stopped on the road and I hit it. This vehicle stopped because another vehicle in front of him had an accident."
Defendants contend, however, that neither report is admissible as an admission against interest or prior inconsistent statement, as Plaintiff contends, because it has not been proven that the reports contain statements actually originating from Carballosa. The Court, however, rejects Defendants’ contention. Both reports bear Carballosa's signature and his name next to the text indicating by whom the reports were prepared. Under Defendants’ position, Plaintiff would bear the burden of proving that the reports and Carballosa's signature are not forgeries or otherwise inauthentic. Defendants have provided no legal support for their position, and the Court does not find it to be reasonable. Furthermore, Defendants have not offered even a shred of proof suggesting that Carballosa did not either complete the reports himself or sign off on the statements that they contain. In other words, Defendants offer nothing more than supposition and conjecture, neither of which is sufficient.
In any event, the statements contained in the reports are not outcome-determinative here in light of the submitted video evidence.
C. Carballosa's Affidavit
In support of their cross-motion and in opposition to Plaintiff's motion, Defendants submit an affidavit of Carballosa, sworn to on September 18, 2020. In his affidavit, Carballosa avers the following:
At the time of the Accident, I was driving in the left lane of the Cross Bronx Expressway and towing a water jet, which was hitched to the back of the vehicle. As the road was bumpy, I glanced in my side mirror to make sure that the equipment was still well-secured.
At that point, a white vehicle operated by the Plaintiff swerved into the left lane directly into my path and then stopped abruptly, leaving insufficient space between his vehicle and mine and insufficient time to react. As a result of Plaintiff's actions, my vehicle struck the rear of the white vehicle.
After the collision, we both got out of our vehicles. I spoke with the driver of the white car (who I now know to be the Plaintiff, Joe Cupeles) and asked him what happened. Plaintiff responded that he stopped because another vehicle had crashed in the left lane and said that he was sorry for cutting me off. I also asked whether Plaintiff was okay and he said that he was fine.
I did not apologize to the Plaintiff, nor did I tell him that the accident was my fault.
Plaintiff challenges Carballosa's affidavit on two grounds. The Court, however, need only address the first ground.
Plaintiff contends that Carballosa's affidavit is not before the Court in admissible form. Carballosa avers—in English, in which, to be clear, his entire affidavit is written—that his affidavit was made "with the assistance of a Spanish interpreter." As such, and because Defendants failed to submit a separate affidavit from the translator attesting to his or her qualifications and the accuracy of the translation, Plaintiff argues that Carballosa's affidavit fails to meet the requirements for admissibility under CPLR 2101(b). Defendants’ counsel, in turn, concede that English is not Carballosa's primary language and that they used a translator to communicate with him, but they contend that CPLR 2101(b) is nonetheless inapplicable because, although it provides that "[w]here an affidavit ... annexed to a paper served or filed is in a foreign language, it shall be accompanied by an English translation and an affidavit by the translator stating his qualifications and that the translation is accurate," Carballosa's affidavit is in English and the translator allegedly did not transcribe the affidavit or play any part in preparing it. Thus, according to Defendants, no translator affidavit was required to render Carballosa's affidavit admissible in this matter.
Contrary to Defendants’ contentions, Carballosa's affidavit is inadmissible. Caselaw is clear that, where an affiant is not a fluent English-speaker but nonetheless submits an affidavit in English with the aid of a translator, the English-language affidavit must be accompanied by an affidavit of the translator pursuant to CPLR 2101(b). See Uy v. Hussein , 186 AD3d 1567, 1569-70 (2d Dep't 2020) ; Rui Qin Chen Juan v. 213 W. 28 LLC , 149 AD3d 539, 539 (1st Dep't 2017) ; Peralta-Santos v. 350 W. 49th St. Corp. , 139 A.D3d 536, 537 (1st Dep't 2016) ; Raza v. Gunik , 129 AD3d 700, 700-01 (2d Dep't 2015) ; Reyes v. Arco Wentworth Mgmt. Corp. , 83 AD3d 47, 54 (2d Dep't 2011) ("This Court has held that the absence of a translator's affidavit, required of foreign language witnesses, renders the witness's English affidavit facially defective and inadmissible."). Indeed, where an affiant is not fluent in English, "the proper procedure is to draft an [affidavit] in the language of the party, together with an English translation and an affidavit by a translator stating his or her qualifications, and that the translation is accurate." Krokh v. Page Taxi Corp. , 2020 NY Slip Op. 33488(U), at *4 (Sup. Ct. Kings Cty. Oct. 7, 2020). Here, there is no dispute that English is not Carballosa's primary language—in fact, Defendants rely on that fact to speculate that the previously discussed internal Groome accident reports may not contain Carballosa's own statements. And, further, there is no dispute that Defendants’ counsel used a translator to communicate with Carballosa in the preparation of his affidavit—the affidavit itself admits it. In these circumstances, the intent behind CPLR 2101(b) and the above Appellate Division decisions—i.e. , to require proof that the affiant actually understood what he or she swore to—applies to require an affidavit from the translator used to communicate with Carballosa in the preparation of his affidavit.
Accordingly, because that translator's affidavit has not been submitted here, Carballosa's affidavit is inadmissible and will not be considered by the Court in deciding the motion and cross-motion.
D. Dashcam Video
Crucially, in support of his motion, Plaintiff submits a video of the Accident taken from the dashcam in Defendants’ vehicle. Defendants produced this dashcam video in response to Plaintiff's discovery demands and rely on it themselves in opposition to the motion and in support of the cross-motion. As such, there is no dispute as to the video's authenticity or admissibility, see Bank of NY Mellon v. Gordon , 171 AD3d 197, 202 (2d Dep't 2019) ("[A]s a general matter, a court should not examine the admissibility of evidence submitted in support of a motion for summary judgment unless the nonmoving party has specifically raised that issue in its opposition to the motion ...." (internal citation omitted)), and, therefore, the Court considers it in deciding the motion and the cross-motion.
Upon review, the Court concludes that the submitted video depicts the events of the Accident from two viewpoints simultaneously: one looking back into the vehicle's cabin and the other looking out through the windshield toward the road in front of the vehicle. The inside view shows that Defendants’ vehicle was occupied by a driver, Carballosa, and three passengers. The outside view shows that it was dark outside and that the weather was clear. At the bottom of the video certain information is displayed, including the speed at which Defendants’ vehicle was traveling at any given moment.
At the start of the video, Defendants’ vehicle is traveling in the left lane of a three-lane stretch of the Cross Bronx, and Plaintiff's white sedan can already be seen traveling ahead in the right lane. Defendants’ vehicle is traveling at approximately 55 or 56 miles per hour, according the video.
As the video progresses, Plaintiff's vehicle can be seen changing lanes twice. Plaintiff's vehicle first changes from the right lane to the center lane and then, almost immediately upon entering the center lane, it again changes lanes to the left lane, positioning it in front Defendants’ vehicle. Immediately before Plaintiff initiates the change from the center to right lane, the brake lights on the other vehicles on the highway in front of Plaintiff's vehicle in the center and right lanes can been seen illuminating.
The Court notes that there are no vehicles blocking Carballosa's view of Plaintiff's vehicle as it traveled across the highway. Indeed, Plaintiff's vehicle is clearly visible from Carballosa's perspective for the entire period of its transit from the right lane to the center lane and then to left lane. Furthermore, Plaintiff's vehicle's turn signal is activated and clearly visible for the entire period of its successive lane changes.
Shortly after entering the left lane, the brake lights of Plaintiff's vehicle illuminate, and it comes to a complete or near complete stop. A few seconds prior to Plaintiff's vehicle coming to a complete or near stop, Carballosa can be seen looking out the window to his left and then looking back forward before apparently bracing himself and applying the brakes of Defendants’ vehicle. He is unable to bring Defendants’ vehicle to a complete stop, however, and, as a result, it strikes the rear of Plaintiff's vehicle. Contemporaneously with the impact between Plaintiff's and Defendants’ vehicles, another vehicle can be seen in the video in front of Plaintiff's vehicle apparently disabled on the left side of the left lane near the median. Based on the available video footage, it appears that Plaintiff's vehicle did not strike this disabled vehicle, either before or after being rear-ended by Defendants’ vehicle.
E. Parties’ Expert Affidavits and Reports
Defendants were the first to submit expert opinion, doing so in support of their cross-motion and in opposition to Plaintiff's motion. Plaintiff responded by submitting his own expert opinion. Thereafter, Defendants requested and were granted permission to file a surreply, and they did so along with supplemental expert opinion. Plaintiff then submitted a sur-surreply with his own expert's supplemental opinion.
The Court considers all of the submitted expert opinion only to the extent that it reveals or clarifies something about the Accident not already apparent from review of the submitted dashcam video. Cf. Jacques v. Harris Water Main & Sewer Contractors, Inc. , 64 Misc 3d 1232(A), at *2 (Sup. Ct. Kings Cty. 2019) ("Inasmuch as the subject accident was captured on video, there was no need to consider the opinion of the accident reconstruction experts as to how the accident occurred.").
1. Defendants’ Expert, Justin P. Schorr, Ph.D.
Defendants’ accident-reconstruction expert is Justin P. Schorr, Ph.D., a Principal Collision Reconstruction/Transportation Engineer with DJS Associates, a forensic consulting and engineering firm based in Abington, Pennsylvania. Dr. Schorr holds a Ph.D. and Master of Science degree in civil and environmental (transportation) engineering from The George Washington University and a Bachelor of Science degree in civil and environmental engineering from Northwestern University. He currently serves as a consulting engineer in the areas of highway safety, traffic and transportation engineering, and collision reconstruction. Plaintiff has not raised any objections to Dr. Schorr's qualifications as an expert or to his fitness to render opinions on the cause of the Accident.
Defendants first submitted an affidavit from Dr. Schorr, sworn to on September 24, 2020, in which he renders what he later terms his "initial opinions." Then, in connection with their surreply, Defendants submitted a supplemental affidavit from Dr. Schorr, sworn to on December 28, 2020, to which he attached a full expert report, dated December 15, 2020 (the "Schorr Report "). Because the data and opinions contained in Dr. Schorr's initial affidavit appear to be effectively subsumed in and superseded by the Schorr Report, the Court only discusses the contents of the Schorr Report herein.
Initially, Dr. Schorr notes that Defendants’ vehicle, a 2011 GMC Sierra pickup truck, had installed in it a dashcam (called a Lytx DriveCAM system) that captured video and speed data for the approximately 10.75 seconds prior to the Accident. Based on his review and analysis of the dashcam video, Dr. Schorr provides the following table listing certain noteworthy (in his opinion) events, the time at which each occurred, and the vehicle (Plaintiff's Toyota or Defendants’ GMC) with which each is associated:
| DriveCAM Time (Seconds) | Time to Impact (Seconds) | Speed (MPH) | Vehicle (Toyota or GMC) | Event (Description) |
| -7.25 | 10.00 | 56 | Toyota | Left turn signal activated |
| *6 -6.75 | 9.50 | 55 | Toyota | Enters center lane |
| -4.75 | 7.50 | 54 | Toyota | Fully within center lane |
| -4.50 | 7.25 | 54 | Toyota | Continues to move left |
| -2.25 | 5.00 | 54 | GMC | Operator begins off-road glance |
| -2.00 | 4.75 | 53 | Toyota | Fully within left lane |
| -1.75 | 4.50 | 53 | Toyota | Brake lights activated |
| -1.00 | 3.75 | 52 | GMC | Operator ends off-road glance |
| -0.25 | 3.00 | 52 | GMC | Brake activated |
| +2.75 | 0.00 | 17 | Both | Impact |
Source: NYSCEF Doc. 126, at p. 5
Dr. Schorr proceeds to characterize Plaintiff's lane changes from the right lane to the center lane and then to the left lane as one continuous maneuver, with the second lane change commencing immediately upon completion of the first lane change. To Dr. Schorr, this is significant because, in his opinion, it means that Plaintiff could not have signaled his intent to make the second lane change at least 100 feet before commencing it, as allegedly required by the New York State Driver's Manual (the "Manual ").
Dr. Schorr next explains that, based on his review and analysis of the dashcam video, Plaintiff's vehicle entered the left lane approximately 100 feet in front of Defendants’ vehicle and began braking approximately 0.25 seconds after being fully established in the left lane and approximately 4.5 seconds prior to impact. According to Dr. Schorr, these alleged facts are significant for several reasons. First , Dr. Schorr calculates that the distance of 100 feet can be traversed in approximately 1.35 seconds when traveling at the posted speed limit of 50 miles per hour, and, thus, Plaintiff violated the so-called "two-second rule" noted in the Manual and thereby failed to provide Carballosa with the opportunity to maintain a sufficient gap between Defendants’ and Plaintiff's vehicles.
Second , as a corollary to Dr. Schorr's calculation that it takes only 1.35 seconds to travel 100 feet at 50 miles per hour, Dr. Schorr opines that Carballosa could not have had time to perceive and react to Plaintiff's sudden stop because, according to Dr. Schorr, it typically takes a person 2 seconds to perceive and react to a hazard at night. By giving Carballosa reduced time in which to react, Dr. Schorr argues that Plaintiff's actions were "antithetical" to Vehicle and Traffic Law ("VTL ") § 1163(c), which provides that "[n]o person shall stop or suddenly decrease the speed of a vehicle without first giving an appropriate signal in the manner provided herein to the driver of any vehicle immediately to the rear when there is an opportunity to give such signal." Dr. Schorr acknowledges, however, that Carballosa actually perceived and reacted to Plaintiff's braking (notably, only after Carballosa returned his attention to the road 0.75 seconds after Plaintiff's braking began) in approximately 0.75 seconds.
Third , based on his foregoing calculations, Dr. Schorr estimates that a reasonably prudent driver traveling at a speed of 50 miles per hour would have begun to respond to Plaintiff's braking approximately 100 feet from the eventual point of impact, allegedly less than the distance that a typical passenger vehicle, on dry roadway without anything in tow, would need to come to a stop. Because Defendants’ vehicle was a pickup truck towing a waterjet, the implication appears to be that Carballosa would have required even more time and space to bring Defendants’ vehicle to a stop.
Dr. Schorr goes on to opine that, based on Defendants’ vehicle's deceleration rate, "but for the presence of [Plaintiff's vehicle], [Carballosa] ... would have come to a complete stop prior [to] reaching the disable vehicle in the left lane ahead."
Dr. Schorr also opines on the propriety of Carballosa's off-road glances. Dr. Schorr acknowledges that Carballosa performed two such glances away from the road and into his rear-view mirror immediately prior to the Accident but argues that they were proper under the Manual's instruction to drivers to "[k]eep your eyes moving, notice what is happening at the sides of the road, and check behind you through your mirrors every few seconds." Dr. Schorr also argues that the 1-to-1.25-second duration of each of Carballosa's off-road glances was of appropriate length under the 1.5-to-2-second limit set forth by the National Highway Transportation Safety Administration's Visual-Manual NHTSA Driver Distraction Guidelines for In-Vehicle Electronic Devices (the "NHTSA Driver Distraction Guidelines "). According to Dr. Schorr, Carballosa was alert and attentive prior to and at the time of the Accident.
Dr. Schorr makes two final observations about the speed of Plaintiff's and Defendants’ vehicles. First, Dr. Schorr explains that the DriveCAM system determines speed based on GPS readings sampled every 0.25 seconds, which can lead to speed measurements that deviate from the actual speed of a vehicle by approximately 10%, as allegedly demonstrated through independent testing of the DriveCAM system. Thus, the speeds recorded by the DriveCAM system in Defendants’ vehicle may not reflect the actual speeds recorded on the vehicle's speedometer. Second, Dr. Schorr notes that for Plaintiff's vehicle to have passed Defendants’ vehicle, Plaintiff's vehicle must have been traveling faster than Defendants’ vehicle.
Ultimately, Dr. Schorr concludes that Plaintiff's maneuvers—i.e. , his multiple lane changes and abrupt stopping—were inconsistent with safe and proper operation of a motor vehicle and were the sole cause of the Accident.
2. Plaintiff's Expert, Grahme Fischer, P.E.
Plaintiff's accident-reconstruction expert is Grahme Fischer, a professional engineer licensed in the State of New York. Mr. Fischer is the President of Technical Problem Solvers, Inc., which he founded in 1987 and through which he practices as a forensic engineer and accident reconstructionist. Mr. Fisher holds a Master of Science degree in mechanical engineering from Columbia University and a Bachelor of Science degree in mechanical engineering from Manhattan College. According to Mr. Fischer, he has conducted or supervised investigations and prepared reports on hundreds of motor-vehicle accidents. He is also a founding member and director of the New York Statewide Traffic Accident Reconstruction Society, Inc. Defendants have not raised any objections to Mr. Fischer's qualifications as an expert or to his fitness to render opinions on the cause of the Accident.
Plaintiff submitted two affidavits from Mr. Fischer. The first, submitted in response to Dr. Schorr's affidavit expressing his initial opinions, was sworn to on December 1, 2020. The second, submitted in response to the Schorr Report, was sworn to on January 5, 2021. Because there is significant overlap in the data and opinions contained in each, the Court does not distinguish between the two affidavits in its discussion below.
As might be expected, Mr. Fischer disagrees with Dr. Schorr's conclusion that Plaintiff's actions were the sole cause of the Accident. Instead, Mr. Fischer concludes, with a reasonable degree of engineering certainty, that Carballosa is solely responsible for the Accident, for the reasons discussed further herein.
While Mr. Fischer generally agrees with the timeline that Dr. Schorr provided in the Schorr Report, he opines that the Schorr Report timeline is incomplete and provides his own table of events, when they occurred, and which vehicle was involved:
| DriveCAM Time (seconds) | Vehicle | Event |
| -6.5 | Toyota | Starting to enter center lane from the right lane |
| -5.75 | Toyota | Fully within center lane |
| -4.5 | Toyota | Fully within center lane, left signal illuminated |
| -4.5 to -4.25 | GMC | Driver looks left at side view mirror |
| -3.5 | Toyota | Begins to enter left lane from center lane |
| -3.25 to -3.0 | GMC | Driver returns gaze to roadway ahead of him |
| -3.0 | Toyota | Continuing moving left in front of GMC but Toyota's right tires in center lane |
| GMC | Driver looking straight ahead | |
| -2.5 to -2.25 | GMC | Driver looks left into side view mirror |
| [*9]-2.25 | Toyota | Brake lights illuminated |
| All E/B vehicles | All brake lights illuminated eastbound | |
| -1.75 | GMC | Driver still looking left at mirror |
| All E/B vehicles | Brake lights illuminated in all eastbound lanes | |
| -1.0 | GMC | Driver begins to look away from left side mirror |
| -0.75 | GMC | Driver looks ahead at illuminated taillights of all eastbound vehicles; possibly observes disabled vehicle ahead across and blocking left E/B lane, which has first appeared in the video |
| -0.5 | GMC | Vehicle blocking E/B left lane clearly visible to onboard DriveCam |
| -0.25 | GMC | Driver seems braced for impact; brakes have slowed GMC at 0.35 g (partial braking ability) |
| Toyota | Continued braking in left lane; all other E/B vehicles braking | |
| 0.00 | GMC | Vehicle maximum braking achieved (0.65 g) DriveCam systems sets timer at 0.0 seconds and retains prior 8 seconds of video |
|---|---|---|
| 0.25 | GMC | "Catches up" with slowing vehicle in center lane; GMC braking |
| 0.5 to 1.75 | GMC | Closing gap between Toyota and GMC, passing vehicles in center lane; GMC braking |
| [*10]2.0 | GMC | Clearest vision of vehicle blocking left lane by subject DriveCam; GMC braking hard |
| 2.25 | GMC | Closing gap with Toyota |
| 2.75 | GMC | Collides into rear of Toyota; reported GMC speed of 27 mph |
| 3.0 | GMC | Remaining in collision with Toyota; acceleration at -1.05 g on GMC from collision effects |
Source: NYSCEF Doc. 132, at 3-4
Initially, Mr. Fischer opines that Plaintiff's lane change was performed safely and appropriately and did not create a hazard that caused the Accident to occur. According to Mr. Fischer's review and analysis of the dashcam video, Plaintiff began signaling his lane change while still in the right lane approximately 3.75 seconds, or 275 feet at 50 miles per hour, before ultimately entering the left lane. And, contrary to Dr. Schorr's characterization of Plaintiff's lane change as one continuous maneuver, Mr. Fischer opines that Plaintiff in fact traveled within the center lane for approximately 2.25 seconds, or 165 feet at 50 miles per hour, before entering the left lane with his left blinker taillight illuminated. Thus, contrary to Dr. Schorr's analysis, Mr. Fischer maintains that Plaintiff did signal his intent to make the lane change from center to left lane more than 100 feet before commencing it, in compliance with the Manual. Additionally, Plaintiff's change from the center to left lane took approximately 1.38 seconds and was performed at a lateral speed of 3 miles per hour—which Mr. Fischer denies is abrupt or characterizable as Plaintiff cutting Carballosa off, as Defendants claim.
Rather than Plaintiff's lane changes and sudden stop causing the Accident, Mr. Fischer opines that the Accident was in fact caused solely by Carballosa's actions. First , Mr. Fischer opines that Carballosa's off-road glances were the critical factor in causing the Accident. Mr. Fischer notes that the total time that Carballosa spent looking out his side window and away from the road—approximately 1.25-to-1.5 seconds for each of two glances—constituted approximately 25% of the video time before the collision. According to Mr. Fischer, Carballosa's second off-road glance began as all eastbound traffic had illuminated their brake lights but before Plaintiff applied his brakes. Had Carballosa not glanced away that second time, and instead continued focusing his attention forward, Mr. Fischer estimates that Carballosa would have had approximately 1.25 seconds to "react to [Plaintiff] entering his lane during which he could have begun the process of braking harder than [Plaintiff]," which "would have opened the gap between both vehicles and transformed [Carballosa's] braking from panic braking to controlled (or gradual braking and possibly steering." However, because he performed an off-road glance, Carballosa only had 0.88 seconds to react.
Second , Mr. Fischer points to the fact that Carballosa was trailering a waterjet at the time as a factor contributing to the Accident. Mr. Fischer reviewed Google Maps images of the Cross Bronx where the Accident occurred and, in so doing, identified roadside signage stating, "No Trucks/Buses/Trailers/Left Lane." Thus, according to Mr. Fischer, Carballosa should not have even been driving Defendants’ pickup truck in the left lane while trailering a waterjet to begin with. The effect that trailering this waterjet had on Defendants’ vehicle was evident, according to Mr. Fischer, in that the vehicle's average braking effort prior to the Accident was approximately 0.53g, only 63% of the braking capabilities of an identical truck with new tires and brakes but not trailering an object.
Third , Mr. Fischer also points to speed as a contributing factor. Specifically, Mr. Fischer notes that Carballosa was traveling an average of 55 miles per hour prior to braking, whereas the posted speed limit on that stretch of the Cross Bronx was 50 miles per hour. According to Mr. Fischer, 55 miles per hour is very high speed at which to be trailering an object such as a waterjet, presenting the risk that "the trailer [c]ould start an uncontrolled side-to-side swaying motion that might cause the rear tires of the towing vehicle to break traction and cause both the trailer and vehicle to enter an uncontrolled ‘yaw’ or lateral instability." Mr. Fischer also responds to Dr. Schorr's assertion that the speed recorded by the DriveCAM system could be off by 10%, pointing out that this means that Defendants’ vehicle could actually have been traveling 10% faster than its average speed of 55 miles per hour.
Fourth , Mr. Fischer opines, essentially, that Carballosa failed to take certain actions that he should have taken and that, if taken, would have prevented the Accident. Specifically, Mr. Fischer asserts that Carballosa, knowing that he was trailering a waterjet, should have slowed to increase the distance between his and Plaintiff's vehicles as Carballosa saw Plaintiff changing lanes into the left lane. Mr. Fischer points out that, although Dr. Schorr relies on it to support his position, the Manual actually places the obligation to maintain at least 2 seconds’ worth of space between two vehicles on the driver of the rear vehicle—here, Carballosa. Additionally, Mr. Fischer asserts that Carballosa should have been attentive and reacted to the traffic behavior apparent on the Cross Bronx immediately prior to the Accident, in that all of the eastbound traffic in the center and right lanes had their brake lights illuminated seconds before the Accident occurred, and Carballosa should have noted that fact and begun to slow Defendants’ vehicle as well.
Mr. Fischer also disputes some of the additional assertions made and opinions rendered in the Schorr Report. Initially, Mr. Fischer disputes Dr. Schorr's calculation that a reasonably prudent driver would have had 100 feet to react Plaintiff's braking and bring his or her vehicle to a stop. Using Dr. Schorr's assumption that a person typically needs 2 seconds to perceive and react to a hazard, and his own calculation that a typical passenger vehicle would need approximately 108 feet to come to a complete stop after brake activation, Mr. Fischer calculates that a typical passenger car requires approximately 255 feet to stop. As such, Mr. Fischer opines that "the assumption of 100-foot distance available is a poor estimate of the actual distance available because [Plaintiff] (in his typical passenger car) was able to avoid collision with the lane-blocking vehicle, and by a large enough distance such that even after his Toyota was pushed eastward after being struck by the GMC-water jet combination the Toyota did not collide with the lane-blocking vehicle."
Further, Mr. Fischer points out that, contrary to Dr. Schorr's assertion, Plaintiff did give Carballosa an appropriate signal that Plaintiff intended to stop or suddenly decrease the speed of his vehicle, as required under VTL § 1163(c), when he activated his brakes and illuminated his rear brake lights.
Moreover, Mr. Fischer disputes Dr. Schorr's assertion that Plaintiff's vehicle must have been traveling faster than Defendants’ vehicle, because Plaintiff's vehicle allegedly passed Defendants’ vehicle, by pointing out that there is no evidence in the dashcam video that Plaintiff's vehicle actually passed Defendants’ vehicle or what Plaintiff's vehicle's speed actually was prior to the Accident.
Finally, Mr. Fischer disputes Dr. Schorr's assertion that Carballosa would have been able to bring Defendants’ vehicle to a stop before striking the disabled vehicle in the left lane if Plaintiff had not merged into that lane in front of Carballosa. Mr. Fischer points out that this assertion is entirely speculative, as it is unknown, and, further, not capable of being known absent speculation, when Carballosa would have observed the disabled vehicle and begun to react to avoid collided with it.
II. PLAINTIFF'S MOTION
"The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering evidence sufficient to eliminate any material issues of fact from the case." Winegrad v. NY Univ. Med. Ctr. , 64 NY2d 851, 853 (1985). Upon such a showing, the burden then shifts to the nonmovant to "present evidentiary facts in admissible form sufficient to raise a genuine, triable issue of fact." Mazurek v. Metro. Museum of Art , 27 AD3d 227, 228 (1st Dep't 2006). A plaintiff in a negligence action moving for summary judgment on the issue of liability must, therefore, establish, prima facie , that the defendant breached a duty owed to the plaintiff and that the defendant's negligence was a proximate cause of the alleged injuries. Fernandez v. Ortiz , 183 AD3d 443 (1st Dep't 2020). A plaintiff is not required to demonstrate his or her freedom from comparative fault in order to establish a prima facie entitlement to summary judgment on the issue of liability. Rodriguez v. City of NY , 31 NY3d 312, 324-25 (2018).
When deciding a summary judgment motion, a court's role is solely to determine if any triable issues exist, not to determine the merits of any such issues. Sillman v. Twentieth Century-Fox Film Corp. , 3 NY2d 395 (1957). In making this determination, the court must view the evidence in the light most favorable to the party opposing the motion, and must give that party the benefit of every inference that can be drawn from the evidence. Jenack Estate Appraisers & Auctioneers, Inc. v. Rabizadeh , 22 NY3d 470, 475 (2013) ; Vega v. Restani Constr. Corp. , 18 NY3d 499 (2012). Every available inference must be drawn in the nonmoving party's favor. De Lourdes Torres v. Jones , 26 NY3d 742, 763 (2016). If there is any doubt as to the existence of a triable issue, summary judgment should be denied. Rotuba Extruders, Inc. v. Ceppos , 46 NY2d 223, 231 (1978).
A. Defendants’ Liability
It is well settled that "[a] rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the driver of the rear vehicle, and imposes a duty on the part of the operator of the moving vehicle to come forward with an adequate, nonnegligent explanation for the accident." Urena v. GVC Ltd. , 160 AD3d 467, 467 (1st Dep't 2018) (quoting Matos v. Sanchez , 147 AD3d 585, 586 (1st Dep't 2017) ); Santos v. Booth , 126 AD3d 506, 506 (1st Dep't 2015) ; Woodley v. Ramirez , 25 AD3d 451, 452 (1st Dep't 2006). Under New York Vehicle and Traffic Law ("VTL ") § 1129(a), "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 vehicle and traffic upon the condition of the highway." In other words, a driver must maintain a safe distance between his vehicle and the one in front of her. A violation of VTL § 1129(a) is prima facie evidence of negligence, and "[t]his rule has been applied when the front vehicle stops suddenly in slow-moving traffic." Rodriguez v. Budget Rent-A-Car Sys., Inc. , 44 AD3d 216, 223-24 (1st Dep't 2007) (quoting Johnson v. Phillips , 261 AD2d 269, 271 (1st Dep't 1999) ); Mascitti v. Greene , 250 AD2d 821, 822 (2d Dep't 1998). In a rear-end collision, there is a presumption of non-negligence of the driver of the lead vehicle. See Soto-Maroquin v. Mellet , 63 AD3d 449, 450 (1st Dep't 2009).
Based on his submissions, Plaintiff demonstrates his prima facie entitlement to judgment as a matter of law on Defendants’ liability. There is no dispute that Defendants’ vehicle rear-ended Plaintiff's vehicle while it was stopped or coming to a stop due to a disabled vehicle in the lane in front of it.
Defendants, in turn, have failed to come forward with an adequate non-negligent explanation for the Accident.
To avoid liability for the Accident, Defendants invoke the emergency doctrine. "The emergency doctrine will prevent a finding of negligence against a driver confronted by a sudden and unexpected situation that leaves little time for thought, deliberation or consideration, provided, however, that the driver's actions were reasonably prudent under emergent circumstances, and s/he did not create or contribute to the emergency." Weston v. Castro , 138 AD3d 517, 518 (1st Dep't 2016). "Although the existence of an emergency and the reasonableness of the response to it generally present issues of fact, those issues may in appropriate circumstances be determined as a matter of law." Smit v. Phillips , 74 AD3d 782, 783 (2d Dep't 2010) (internal quotation marks and citations omitted). Here, Defendants allege that Plaintiff's multiple lane changes without leaving Carballosa adequate space between Defendants’ and Plaintiff's vehicles in which to react and stop Defendants’ vehicle before rear-ending Plaintiff's vehicle created an emergency to which Carballosa responded reasonably.
It is well settled, however, that "the emergency doctrine is typically not available to the rear driver in a rear-end collision, who is responsible for maintaining a safe distance." Vanderhall v. MTA Bus Co. , 160 AD3d 542, 542-43 (1st Dep't 2018) ; Johnson v. Phillips , 261 AD2d 269, 271 (1st Dep't 1999). The rule that a rear driver is obligated to maintain a safe distance between her vehicle and the vehicle in front of her "imposes on [her] a duty to be aware of traffic conditions, including vehicle stoppages." Johnson , 261 AD2d at 271. As the First Department has consistently held, in New York "drivers have a duty to see what should be seen and to exercise reasonable care under the circumstances to avoid an accident." Id. (internal quotation marks and citation omitted).
Based on these principles and the circumstances of the Accident, the Court concludes that the emergency doctrine is inapplicable in this matter. The dashcam video alone makes clear that Plaintiff's vehicle was visible from Carballosa's viewpoint for the entirety of the video's length, including, of course, while Plaintiff's vehicle made it successive lane changes from the right to the center and then to the left lanes. Further, Plaintiff clearly signaled his intent to make each of those lane changes with his left-hand turn signal. Carballosa was obligated to observe Plaintiff's vehicle and its lane changes and, if necessary, to adjust the distance between the vehicles to maintain a safe distance to, among other things, avoid colliding with Plaintiff's vehicle if it stopped suddenly. Moreover, there is evidence here—in addition to the mere fact of the rear-end collision itself—that Carballosa was not exercising his duties to observe traffic conditions and exercise reasonable care to avoid an accident. Specifically, as Defendants concede, the dashcam video demonstrates that Carballosa looked away from the road on two occasions for a combined total of approximately 2 to 2.5 seconds during the approximately 12-second video, and the video and expert affidavits further demonstrate that at least the second of these two off-road glances occurred at critical time when traffic, generally, and Plaintiff, specifically, were initiating braking. Even if, as Dr. Schorr claims, Carballosa's two glances away from the road were of an appropriate length under the NHTSA Driver Distraction Guidelines (and that such guidelines are even an appropriate reference here), that does not mean that the timing of when Carballosa chose to make the off-road glances was not itself negligent. Indeed, the video and expert reports strongly suggest that Carballosa's second off-road glance delayed his ability to react to the traffic conditions in front of him. And, contrary to Defendants’ argument, even if the Court were to consider Carballosa's affidavit, the fact that Carballosa was checking the status of the waterjet he was trailering when he glanced away from the road actually contributes to, rather than mitigates, his negligence. Mr. Fischer adequately demonstrates that trailering was prohibited in the left lane on the Cross Bronx where the Accident occurred. Thus, Carballosa should not have been in the left lane to begin with. Additionally, knowing that he was trailering an object that could potentially affect his ability to bring his vehicle to a stop, Carballosa should have exercised heightened caution to avoid any hazards that might appear on the road in front of him.
The cases on which Defendants rely do not change the Court's conclusion. Santana v. Metropolitan Transportation Co. , 170 AD3d 551 (1st Dep't 2019), Simmons-Kindron v. 1218770 Ontario Inc. , 93 AD3d 1215 (4th Dep't 2012), Hotkins v. N.Y.C. Transit Authority , 7 AD3d 474 (1st Dep't 2004), and Beasley v. Asdotel Enterprises, Inc. , 2014 NY Slip Op. 33192(U) (Sup. Ct. Bronx Cty. Nov. 5, 2014), are distinguishable, in that each involved a lane change performed with a suddenness and proximity to the trailing vehicle that, based on the Court's review of the dashcam video, simply is not present in this case. Again, Plaintiff's vehicle and its lane changes were clearly visible to Carballosa and were not made with such suddenness and little separating distance between the two vehicles that he could not have observed and reacted to them. As just one example, in Hotkins the defendant pulled out in front of a bus without signaling and left only three feet between the two vehicles, whereas, in this case, Plaintiff signaled his lane changes for approximately 3.75 seconds and left, according to Defendants’ own expert, approximately 100 feet between the vehicles as they traveled at apparently similar speeds.
Defendants’ other cited cases—Fatumata B. v. Pioneer Transportation Corp. , 118 AD3d 486 (1st Dep't 2014), Mendez v. City of New York , 110 AD3d 421 (1st Dep't 2013), and Ward v. Cox , 38 AD3d 313 (1st Dep't 2007) —are distinguishable as well on the grounds that none bear any factual similarity to the lane changes involved in this case.
Additionally, while not particularly relevant to the analysis at hand, Defendants’ and Dr. Schorr's assertion that, if Plaintiff's vehicle had not been involved, Carballosa could have brought Defendants’ vehicle to a stop prior to colliding with the disabled vehicle in the left lane is unsupported conjecture. There simply is no way to tell, based on the evidence before the Court and Dr. Schorr, when—or if—Carballosa would have observed the disabled vehicle or how he would have reacted to it when he did.
Accordingly, Plaintiff has demonstrated his entitlement to partial summary judgment against Defendants on the issue of their liability. As the Court of Appeals held in Rodriguez , 31 NY3d at 324-25, Plaintiff's own comparative negligence, if any, does not act as a bar to his entitlement to this ruling.
B. Defendants’ Affirmative Defenses
Plaintiff also seeks summary judgment dismissing Defendants’ Fourth, Sixth, Seventh, Tenth, and Eleventh Affirmative Defenses.
Defendants’ Fourth Affirmative Defense alleges that they "breached no duty of any kind owing to the Plaintiff." Because the Court has just granted Plaintiff summary judgment against Defendants as to their liability, however, this affirmative defense is meritless and, as such, is dismissed.
Defendants’ Sixth Affirmative Defense alleges that "[t]he damages complained of were the result of Plaintiff's sole negligence." The key phrase here is "Plaintiff's sole negligence." Thus, this affirmative defense does not allege comparative fault or negligence but, rather, seeks to assign the entirety of the liability for the Accident to Plaintiff. Again, because the Court has just granted Plaintiff summary judgment against Defendants as to their liability, this affirmative defense is meritless and, as such, is dismissed.
Defendants’ Seventh Affirmative Defense alleges that "[t]he damages alleged, if any, were the result of acts or omissions of third parties, persons or forces over which the answering Defendants exercised no control, supervision or dominion." It is unclear to which third party, person, or force Defendants may be referring other than the owner or operator of the disabled vehicle that prompted Plaintiff to stop suddenly upon entering the left lane. But there has been no demonstration here of that individual's negligence, or that that individual did anything other than merely furnish the condition or give rise to the occasion by which the Accident was made possible. See McLean v. Ripoli , 157 AD3d 604, 605 (1st Dep't 2018). Accordingly, this affirmative defense is meritless and, as such, is dismissed.
Defendants’ Tenth Affirmative Defense alleges that they "are not liable to Plaintiff by virtue of the Emergency Doctrine." This affirmative defense is meritless, however, for the same reasons that the Court rejected the application of the emergency doctrine above. Accordingly, this affirmative defense is dismissed.
Finally, Defendants’ Eleventh Affirmative Defense alleges that "[t]he injuries and damages allegedly sustained by the Plaintiff were the result of an unavoidable accident." Once again, because the Court has just granted Plaintiff summary judgment against Defendants as to their liability, this affirmative defense is meritless and, as such, is dismissed.
C. Plaintiff's Comparative Negligence
By his motion, Plaintiff also expressly seeks partial summary judgment in his favor as to his own comparative negligence.
It is well settled that "[a]n accident may have more than one proximate cause." Bell v. Angah , 146 AD3d 734 (1st Dep't 2017) ; Bautista v. Grand Ambulette Serv., Inc. , 140 AD3d 639 (1st Dep't 2016) ; Martinez v. Allen , 163 AD3d 951 (2d Dep't 2018). And not every rear-end collision is the exclusive fault of the rear-most driver. See Tutrani v. Cty. of Suffolk , 10 NY3d 906 (2008) ; Martinez , 163 AD3d 951.
Here, based on its review of the dashcam video and the parties’ respective expert affidavits and reports, the Court simply is not prepared to hold that Plaintiff is, as a matter of law, entirely without fault for the Accident. The competing expert affidavits and reports, in particular, raise questions of fact as to the appropriateness of Plaintiff's multiple lane-change maneuver and his possible failure to observe and react appropriately to the traffic conditions and hazards the existed in front of him prior to the Accident. Plaintiff's comparative fault may ultimately prove to be insignificant or even nonexistent, but a jury nonetheless has a basis to find that some fault may exist on Plaintiff's part. The Court, furthermore, attaches little weight to Carballosa's alleged admissions of fault in light of the availability of the dashcam video footage, which the Court, the parties’ respective experts, and, eventually, a jury can review and analyze to assess the parties’ respective levels of fault.
Accordingly, Plaintiff has failed to demonstrate his entitlement to partial summary judgment as to his own comparative negligence. The motion is, therefore, GRANTED IN PART to the extent set forth above.
III. DEFENDANTS’ CROSS-MOTION
Defendants’ cross-motion seeks summary judgment in their favor dismissing Plaintiff's complaint. The basis for the cross-motion is, again, the applicability of the emergency doctrine to excuse Defendants’ actions.
Having already rejected the emergency doctrine as applicable in this case in the context of Plaintiff's motion, the Court is constrained to also reject the doctrine's application in the context of the cross-motion. The cross-motion is, therefore, DENIED .
The Court has considered the additional contentions of the parties not specifically addressed herein. To the extent that any relief requested by the movant was not addressed by the Court, it is hereby denied.
Accordingly, it is hereby:
ORDERED that that part of plaintiff JOE CUPELES's motion (Seq. No. 2) seeking an order, pursuant to CPLR § 3212, granting him partial summary judgment against defendants GILBERTO CARBALLOSA and GROOME INDUSTRIAL SERVICE GROUP, LLC on the issue of their liability is GRANTED ; and it is further
ORDERED that that part of plaintiff CUPELES's motion (Seq. No. 2) seeking an order, pursuant to CPLR § 3212, dismissing defendants CARBALLOSA's and GROOME INDUSTRIAL SERVICE GROUP, LLC's Fourth, Sixth, Seventh, Tenth, and Eleventh Affirmative Defenses is GRANTED ; and it is further
ORDERED that that part of plaintiff CUPELES's motion (Seq. No. 2) seeking an order, pursuant to CPLR § 3212, granting him partial summary judgment as to his own comparative negligence is DENIED ; and it is further
ORDERED that defendants CARBALLOSA's and GROOME INDUSTRIAL SERVICE GROUP, LLC's cross-motion (Seq. No. 2) seeking an order, pursuant to CPLR § 3212, granting them summary judgment dismissing all claims against them is DENIED ; and it is further
ORDERED that the Clerk shall mark the motion and cross-motion (Seq. No. 2) disposed in all Court records.
This constitutes the decision and order of the Court.