Opinion
14469/09.
Decided May 10, 2010.
Plaintiff moves this Court for summary judgment pursuant to CPLR § 3212 on this issue of defendants' liability. This is an action in personal injury stemming from a motor vehicle accident on October 22, 2009 at the exit from the Home Depot parking lot and Route 300 in the Town of Newburgh. According to the plaintiff, at the time of the accident, he was a passenger in a vehicle driven by his fiancee. The vehicle in which he was a passenger was stopped at a red light for approximately 10 seconds when a vehicle driven by the defendant struck the rear of his vehicle.
In opposition, defendant submits an affidavit in which he states he was employed by the co-defendant and driving one of the co-defendant's vehicles at the time of the impact, that as he approached the rear of the vehicle in which plaintiff was a passenger, the brake lights turned off and that vehicle proceeded forward and then suddenly stopped. The defendant states that he saw traffic from Route 300 stop and he proceeded to accelerate forward and struck the rear of the vehicle in which plaintiff was a passenger.
As a preliminary matter, counsel for the parties should be aware that proper motion practice timing has not been adhered to here. Counsel are directed to CPLR § 2214 which provides that a party seeking a reply affirmation must formally request that answering affidavits be served at least 7 days in advance of the motion and that serve of the original moving papers must be effected within the time deadlines specified therein. Plaintiff's counsel's original moving papers did not require that any opposition be served 7 days in advance of the return date. In fact, plaintiff originally mailed his motion on March 16, 2010 and noticed the motion for March 31, 2010, a 14 day window which triggers the 13-2 provision (8 days in advance plus 5 additional days for service by mail) for a noticed motion and divests the movant of the opportunity to reply. Thereafter, plaintiff gave the defendants a one month adjournment of the motion until April 30, 2010.
Instead of timely serving their opposition, defendants instead chose to mail their opposition 1 day prior to the return date in direct contravention to the 2 day rule specified in the CPLR. Plaintiff submitted a reply affirmation on May 5, 2010, after the motion was fully submitted on April 30, 2010. Fair warning is provided to both counsel in this matter. Defendants failed to timely serve their opposition and plaintiff submitted an improper and late reply. As a one time courtesy to the parties, the Court will consider all of the submissions, but will not do so in the future and untimely submissions will not be considered.
CPLR § 3212(b) states in pertinent part that a motion for summary judgment "shall be granted if, upon all of papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party."
In Andre v Pomeroy, 35 NY2d 361, 364 (1974), the Court of Appeals held that:
[s]ummary judgment is designed to expedite all civil cases by eliminating from the Trial Calendar claims which can properly be resolved as a matter of law . . . when there is no genuine issue to be resolved at trial, the case should be summarily decided, and an unfounded reluctance to employ the remedy will only serve to swell the Trial Calendar and thus deny to other litigants the right to have their claims promptly adjudicated.
Moreover, if summary judgment is granted, plaintiff is entitled to an immediate trial on the issue of damages pursuant to CPLR § 3212(c), after completion of the outstanding discovery.
CPLR § 3212(c) states in pertinent part:
Immediate trial. If it appears that the only triable issues of fact arising on a motion for summary judgment relate to the amount or extent of damages . . . the court may . . . order an immediate trial of such issues of fact raised by the motion, before a referee, before the court, or before the court and jury, whichever may be proper.
In Ward v Clark, 232 NY 195, 198, the Court of Appeals stated that "the supreme rule of the road is the rule of mutual forbearance." In other words, "[A] driver is negligent where an accident occurs because [he or she] has failed to see that which through the proper use of [his or her] senses [he or she] should have seen." Ferrara v Castro, 283 AD2d 392, 392 (2nd Dept. 2001) (quoting Bolta v Lohan, 242 AD2d 356, 356 (2nd Dept. 1997)).
NY Vehicle Traffic Law § 1129(a) states "The 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."
If a stopped car is struck in the rear, absent some excuse, it is negligence as a matter of law. Leonard v City of New York, 273 AD2d 205, 205-206 (2nd Dept. 2000); Sheeler v Blade Contracting, Inc., 262 AD2d 632, 632-633 (2nd Dept. 1999); Rich v O'Connor 212 AD2d 767, 767 (2nd Dept. 1995); Mead v Marino 205 AD2d 669, 669 (2nd Dept. 1994); Edney v MABSTOA 178 AD2d 398, 399 (2nd Dept. 1991); DeAngelis v Kirschner 171 AD2d 593, 594 (1st Dept., 1991); Crociata v Vasquez 168 AD2d 410, 410 (2nd Dept. 1990); Cohen v Terranella 112 AD2d 264, 264 (2nd Dept. 1985); Carter v Castle Elec. Contr. 26 AD2d 83, 84-85 (2nd Dept., 1966).
The occurrence of a rear end collision is sufficient to create a prima facie case of liability and even if defendant slid into plaintiff's vehicle due to wet roadway, such a showing would be insufficient to rebut the inference of negligence and raise a triable issue of fact. Crociata, 168 AD2d at 410; Benyarko v Avis, 162 AD2d 572, 573 (2nd Dept., 1990). An explanation that the plaintiff's vehicle came to an abrupt or sudden stop is insufficient to raise a question of fact and rebut the presumption of negligence. See, Lundy v Llatin , 51 AD3d 877 , 877-878 (2nd Dept. 2008); Francisco v Schoepfer , 30 AD3d 275 , 276 (2nd Dept. 2006); Rainford v Han ; 18 AD3d 638 , 639 (2nd Dept. 2005); Belitsis v Airborne Express Freight Corp., 306 AD2d 507, 508 (2nd Dept. 2003); Dickie v Pei Xiang Shi, 304 AD2d 786, 787 (2nd Dept. 2003); Levine v Taylor, 268 AD2d 566, 567 (2nd Dept. 2000).
In the instant case, plaintiff's affidavit notes that the vehicle in which he was a passenger was stopped for 10 seconds prior to the impact. Defendant's affidavit does not dispute that the plaintiff's vehicle had initially stopped, but he merely states that the plaintiff vehicle began to move forward prior to entering into the traffic flow when defendant began to accelerate and struck the rear of the plaintiff's vehicle. This explanation does not fall under the category of a sudden stop. While the police report submitted by plaintiff is hearsay in and of itself, the report does contain an admission by defendant that he "thinks veh No. 1 [plaintiff's vehicle] began to turn, [defendant] accelerated and struck veh # 1." This is a case where defendant was not watching in front of him and struck the rear of plaintiff's vehicle.
Moreover, as the passenger in the vehicle which was struck in the rear, the plaintiff is entitled to summary judgment absent a non-negligent explanation by the defendant, which was never provided here. See, Francisco, 30 AD3d at 275-276.
A party opposing a motion for summary judgment must lay bare his or her proof. Del Giacco v Noteworthy Company, 175 AD2d 516 (3rd Dept., 1991). Moreover, an opponent of summary judgment seeking further discovery must set forth a reason to believe additional discovery would reveal a relevant triable issue. Bryan v City, 206 AD2d 448 (2nd Dept., 1994); Morales v P.S. Elevator, 167 AD2d 520 (2nd Dept., 1990). In the absence of a showing that any additional evidence would assist in raising a factual issue, further discovery is not warranted. Lowrey v Cumberland Farms, 162 AD2d 777, 778-779 (3rd Dept. 1990). "The purported need to conduct discovery did not warrant denial of the motion. The opponents of the motion had personal knowledge of the relevant facts, and the lack of disclosure does not excuse the failure of two of the parties with personal knowledge to submit affidavits in opposition to the motion ( see Niyazov v. Bradford, supra at 502, 786 NYS2d 582; Johnson v. Phillips, 261 AD2d 269, 272, 690 NYS2d 545)." Rainford, 18 AD3d at 639-640. In this case, the exclusive knowledge of the accident's occurrence is within the sole knowledge of the parties. Both have submitted affidavits, the defendant's failing to raise the necessary triable issues of fact. Therefore, plaintiff's motion for summary judgment is granted.
Furthermore, NY Vehicle Traffic Law § 388 states in pertinent part that:
Every owner of a vehicle used or operated in this state shall be liable and responsible for death or injuries to person or property resulting from negligence in the use or operation of such vehicle, in the business of such owner or otherwise, by any person using or operating the same with the permission, express or implied, of such owner. Whenever any vehicles as hereinafter defined shall be used in combination with one another, by attachment or tow, the person using or operating any one vehicle shall, for the purposes of this section, be deemed to be using or operating each vehicle in the combination, and the owners thereof shall be jointly and severally liable hereunder.
Thus, the owners of a motor vehicle are equally liable to a plaintiff for personal injuries stemming from an accident caused by the driver, even in cases where the driver was an employee of the corporation or corporations owning the vehicle in question. In the instant case, there is unrebutted evidence that the co-defendant corporation owned the defendants' vehicle and that the driver thereof was within the employ of that corporation at the time of the accident. Thus, the co-defendant is jointly and severally liable to the issue on the question of liability.
Plaintiff is entitled to an immediate trial on the issue of damages pursuant to CPLR § 3212(c), after completion of the outstanding discovery on that issue alone.
CPLR § 3212(c) states in pertinent part:
Immediate trial. If it appears that the only triable issues of fact arising on a motion for summary judgment relate to the amount or extent of damages . . . the court may . . . order an immediate trial of such issues of fact raised by the motion, before a referee, before the court, or before the court and jury, whichever may be proper.
The matter will proceed to trial on the issues of damages only.
It is further ordered that the parties are to appear on _____________________, 2010 at 9:30 a.m at Orange County Government Center, Courtroom # 4 for a conference on this matter.
The foregoing constitutes the decision and order of the court.