Opinion
Index No. 152255/2022
12-09-2024
John Fumo, Plaintiff, v. Alexander Ortiz and QPR TRUCKING LLC, Defendants.
Counsel for Plaintiff: Daniela F. Henriques, Esq., Anthony Beneduce, Esq., Leav & Steinberg LLP Counsel for Defendants: John E. Boneta, Esq., Morris Duffy Alonso Faley & Pitcoff
Unpublished Opinion
Counsel for Plaintiff: Daniela F. Henriques, Esq., Anthony Beneduce, Esq., Leav & Steinberg LLP
Counsel for Defendants: John E. Boneta, Esq., Morris Duffy Alonso Faley & Pitcoff
Paul Marrone, Jr., J.
Recitation, as required by CPLR § 2219 (a), of the papers considered in the review of this motion:
Papers NYSCEF Document(s)
Plaintiff's Motion for Leave to Reargue, with supporting documents (filed July 2, 2024 34 - 41
Defendant's Opposition to Plaintiff's Motion, with supporting documents (filed September 4, 2024) 42 - 43
Plaintiff's Reply to Defendant's Opposition (filed September 24, 2024) 44 - 45
The plaintiff in this matter, John Fumo (hereinafter "Plaintiff"), commenced this action for personal injuries allegedly sustained when a vehicle owned by defendant QPR Trucking LLC, and operated by the defendant, Alexander Ortiz (hereinafter "Defendant", collectively and interchangeably), struck Plaintiff's vehicle in the rear on May 20, 2022 while traveling westbound on the Staten Island Expressway in Richmond County, New York. Plaintiff has filed the instant motion seeking an order (1) granting leave to reargue this Court's Decision and Order issued on May 31, 2024 (hereinafter the "May Decision") wherein Plaintiff's motion for summary judgment on the issue of liability was denied; (2) vacating the Court's May Decision; (3) granting Plaintiff summary judgment on the issue of liability; (4) striking the affirmative defense(s) of comparative negligence and/or culpable conduct raised in Defendant's Verified Answer; and (5) directing a trial on the issue of damages.
PROCEDURAL HISTORY
Plaintiff commenced the instant action by filing a Summons and Verified Complaint on or about December 13, 2022. Defendant filed a Verified Answer on or about March 1, 2023.
On January 17, 2024, Plaintiff filed a motion seeking an order granting summary judgment on the issue of liability and striking the affirmative defense(s) of comparative negligence and/or culpable conduct raised in Defendant's Verified Answer. The motion was fully briefed, and oral argument was heard on April 4, 2024 with both parties represented by counsel. In its May Decision, the Court denied Plaintiff's motion in its entirety.
Plaintiff filed the instant motion, seeking leave to reargue the Court's May Decision, on July 2, 2024. Defendant filed opposition to the motion, to which Plaintiff filed a reply. Oral argument was heard on September 26, 2024 with both parties represented by counsel, and the Court's decision was reserved.
On December 28, 2023, the parties executed a stipulation, subsequently so-ordered by the Court, vacating the Note of Issue filed by Plaintiff in error. After the filing of the instant motion, Plaintiff underwent a surgical procedure to his cervical spine which will require supplemental discovery. Therefore, this matter is not yet ready for trial.
FACTS
On May 20, 2022, at approximately 4:30PM, Plaintiff was traveling westbound on the Staten Island Expressway in the right lane of the three-lane main thoroughfare, not including the left-most high occupancy vehicle lane and right-most merge lane. At or near the intersection of the Staten Island Expressway and Hylan Boulevard, Plaintiff made a lane change into the center lane. At some point shortly thereafter, Plaintiff's motor vehicle, a 2011 Nissan Maxima, was struck in the rear by Defendant's truck, a 2017 Kenworth T680 with a 48-foot trailer attached. At the time and location of the collision, the roadway was congested, and traffic was moving slowly.
After the collision, Plaintiff was transported by ambulance to Staten Island University Hospital where he complained of neck and back pain. Plaintiff alleges that, as a result of the collision, he suffers from herniated discs in his cervical and lumbar spine, as well as bilateral carpal tunnel syndrome.
STANDARD OF REVIEW
A motion for leave to reargue "shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion" (CPLR 2221[d] [2]). The determination to grant leave to reargue a motion is within the sound discretion of the court, and could be made in the interests of justice even where the movant has not met the technical requirements pursuant to the CPLR (see Ruggiero v Long Is. R.R., 161 A.D.2d 622 [2d Dept 1990]). However, a motion to reargue is not intended to provide an unsuccessful party with successive opportunities to argue previously decided issues and present new arguments (see Fosdick v Town of Hempstead, 126 NY 651 [1891]; see also McGill v Goldman, 261 A.D.2d 593 [2d Dept 1999]).
DISCUSSION
In its May Decision, the Court determined that Plaintiff established his prima facie entitlement to a judgement as a matter of law on the issue of liability. However, the Court denied Plaintiff's motion for summary judgment upon its finding that Defendant provided a non-negligent explanation for the rear-end collision sufficient to raise a triable issue of fact.
In support of the instant motion for leave to reargue, Plaintiff argues that the Court misapprehended caselaw in its determination, and that its reliance on Ordonez v ADM Agravit, Inc. (205 A.D.3d 1042 [2d Dept 2022]) was misplaced. According to Plaintiff, the Court accepted Defendant's proffered defense - that Plaintiff changed lanes within Defendant's blind spot - in contravention of the well-established principle that a "blind spot" defense does not absolve a driver of liability. Plaintiff further contends that the facts in the instant action are distinguishable from those cases where courts have recognized a lane change by the lead vehicle as an acceptable non-negligent explanation for a rear-end collision. Therefore, Plaintiff maintains that Defendant failed to present a valid non-negligent explanation sufficient to defeat the motion for summary judgment on the issue of liability.
In the interests of justice, the Court hereby grants the branch of Plaintiff's motion seeking leave to reargue (see Ruggiero, 161 A.D.2d 622). The Court will consider, herein, its application of the facts of this case to the relevant caselaw, including Ordonez, upon which the Court relied in its original decision.
I. Review of the Caselaw
As recited in the Court's May Decision, 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 (see Vehicle and Traffic Law § 1129 [a]; see Nsiah-Ababio v Hunter, 78 A.D.3d 672 [2d Dept 2010]). 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 operator of the rear vehicle (Tutrani v County of Suffolk, 10 N.Y.3d 906 [2008]). However, the operator of the rear vehicle can rebut the presumption of negligence if they provide a non-negligent explanation for the collision such as, but not limited to, sudden or unavoidable circumstances (see Munoz v Agenus, Inc., 207 A.D.3d 643 [2d Dept 2022]; see also D'Agostino v YRC, Inc., 120 A.D.3d 1291 [2d Dept 2014]).
In support of the instant motion, Plaintiff argues that, even if a portion of his lane change took place within Defendant's blind spot, Defendant had no excuse for failing to see Plaintiff's vehicle after the lane change was completed, especially given the stop-and-go traffic conditions. In other words, according to Plaintiff, the lane change was inconsequential, and Defendant should have, with proper use of his senses, seen Plaintiff's vehicle stopped in front of his truck. Therefore, Plaintiff submits, the Court should have adhered to well-established legal precedent and rejected Defendant's attempt to rebut the presumption of negligence.
In opposition, Defendant contends that the Court's denial of Plaintiff's motion for summary judgment was appropriate, as his deposition testimony indicates that the rear-end collision was caused by Plaintiff's unsafe lane change within Defendant's blind spot. In particular, Defendant testified that he was traveling in bumper-to-bumper traffic directly behind a box truck for at least one hour before the collision. Defendant further testified that the collision with Plaintiff's vehicle occurred within five seconds after he released the brake pedal from a dead stop while trailing the box truck, and that he did not see Plaintiff's vehicle at any point before the moment of impact. Therefore, according to Defendant, Plaintiff "squeezed" into his blind spot, making it impossible for Defendant to avoid the rear-end collision. Additionally, Plaintiff submitted a police report indicating that due to the limited visibility of Defendant's large truck, Defendant did not see Plaintiff enter the middle lane in front of Defendant.
The Court, in its May Decision, viewed the evidence in the light most favorable to the Defendant [ see Stukas v Streiter, 83 A.D.3d 18 [2d Dept 2011], citing Pearson v Dix McBride, LLC, 63 A.D.3d 895 [2d Dept 2009]). Furthermore, the Court drew all reasonable inferences in favor of Defendant, and did not pass judgment on issues of credibility (see Torres v Jeremias, 283 A.D.2d 484 [2d Dept 2001]; see also Rizzo v Lincoln Diner Corp., 215 A.D.2d 546 [2d Dept 1995], citing Negri v Stop and Shop, Inc., 65 N.Y.2d 625 [1985]). Accordingly, the Court determined that Defendant's deposition testimony, if credited, would constitute a non-negligent explanation for the rear-end collision.
In support of the instant motion, Plaintiff cites Levin v City of Rochester (78 Misc.3d 1201 [A] [Sup Ct, Monroe County 2023]) wherein the trial court held that, even if the blind spot did impede the truck operator's vision, "the existence of a 'blind spot' under New York law is not a 'non-negligent' excuse for 'failing to see what is there to be seen.'" Upon review, the Court determines that the factual distinctions between Levin and the present case render the former inapplicable (id. at 2-3). In Levin, the defendant truck operator made a left turn, without signaling, and struck a pedestrian (id.). Furthermore, video recordings were submitted in support of the plaintiff's motion for summary judgment showing the defendant made the left turn without slowing down or altering his path as he drove through the crosswalk (id.). Here, Defendant claims that Plaintiff's unsafe lane change within his blind spot caused the rear-end collision, rather than any inherent limitation of Defendant's truck. The Court similarly concludes that the cases cited by Plaintiff which address the insufficiency of the 'sun glare defense' are inapplicable to the instant matter (see Morales-Rodriguez v MTA Bus Co., 203 A.D.3d 914 [2d Dept 2022]; see also Rodriguez v Beal, 191 A.D.3d 617 [1st Dept 2021]; see also Agramonte v City of New York, 288 A.D.2d 75 [1st Dept 2001]; see also Thorsen v Sunbelt Rentals, Inc., 79 Misc.3d 1218 [A] [Sup Ct, Kings County 2023]).
In Kewal v Whitmore Equip. Leasing Co., Inc., cited by Plaintiff in his motion papers, the trial court held that a truck operator's claim that a vehicle, improperly stopped, was partially obscured by a blind spot was insufficient to raise a triable issue of fact (41 Misc.3d 1226[A] [Sup Ct, Queens County 2013]). However, the court emphasized that the defendant made an unsafe left turn at an intersection in violation of the Vehicle and Traffic Law (id. at 4). Here, Defendant was operating his truck at a low rate of speed in dense traffic and, unlike the truck operator in Kewal, he was not performing a maneuver that would necessitate a heightened standard of care. The Court determines that Defendant's straightforward operation of the vehicle within a lane of traffic materially distinguishes the instant matter from the cases cited by Plaintiff (cf. Levin, 78 Misc.3d 1201(A); cf. Weather v N. Am. Recycling Corp., 255 A.D.2d 666 [3d Dept 1998]; cf. Marvin v Town of Middlesex, 2002 NY Slip Op 50006[U] [Sup Ct, Yates County 2002], affd 300 A.D.2d 1112 [4th Dept 2002]).
A significant component of the Plaintiff's motion to reargue is the assertion that the Court, in its May Decision, incorrectly applied established legal principles concerning lane changes in the context of rear-end collisions to the instant facts. Plaintiff argues that the mere fact that he made a lane change at some point before the collision does not rebut the inference of negligence. Upon review, the Court finds that the cases cited in support of that proposition involve distinct factual scenarios and are inapposite to the present case. For instance, in two of the cases cited, the plaintiffs were stopped at a toll booth (Garwol v Bruch, 284 A.D.2d 940 [4th Dept 2001]; Francisco v Schoepfer, 30 A.D.3d 275 [1st Dept 2006]). Among the cases cited, the Court did not find any wherein the defendant claimed that the plaintiff's vehicle entered their blind spot and could not be observed until after the collision (cf. Irmiyayeva v Thompson, 296 A.D.2d 439 [2d Dept 2002]; cf. Cohen v Terranella, 112 A.D.2d 264 [2d Dept 1985]). Defendant in the instant case claims that Plaintiff changed lanes in an unsafe manner (see Vehicle and Traffic Law § 1128).
Plaintiff further argues that established legal precedent recognizes that sudden stops are foreseeable in stop-and-go traffic and, therefore, Defendant had a duty to maintain a safe following distance and to be prepared for such occurrences (An v Abbate, 213 A.D.3d 891 [2d Dept 2023]; Martin v County of Westchester, 194 A.D.3d 1036 [2d Dept 2021]; Vehicle and Traffic Law § 1129). The Court acknowledges that the claim that the lead vehicle made a sudden stop, standing alone, is insufficient to rebut the presumption of negligence on the part of the rear vehicle (see Xian Hong Pan v Buglione, 101 A.D.3d 706 [2d Dept 2012]; see also Harrington v Kern, 52 A.D.3d 473 [2d Dept 2008]). Here, unlike the defendants in the cases cited by Plaintiff, Defendant claims that he did not see the lead vehicle come to a sudden stop (cf. Xian Hong Pan, 101 A.D.3d 706; cf. Kern, 52 A.D.3d 473; cf. Taing v Drewery, 100 A.D.3d 740 [2d Dept 2012]; cf. Perez v Roberts, 91 A.D.3d 620 [2d Dept 2012]). Furthermore, Defendant's deposition testimony does not support the assertion that Plaintiff engaged in sudden braking but, rather, that Plaintiff changed lanes within Defendant's blind spot.
The Court notes that, based on the aforementioned distinction, the cases cited by Defendant in opposition to summary judgment, which involve factual scenarios where the lead vehicle executed a lane change and stopped suddenly, are also inapplicable to the present case (cf. Jimenez v Greyhound Lines, Inc., 193 A.D.3d 548 [1st Dept 2021]; cf. Balanta v Wu, 220 A.D.3d 720 [2d Dept 2023]). Defendant, here, is not invoking the emergency doctrine, as it would be inapplicable to the present case (see Rivera v New York City Tr. Auth., 77 N.Y.2d 322 [1991]).
Upon careful consideration of the instant motion, the Court concludes that Plaintiff's arguments challenging the sufficiency of Defendant's non-negligent explanation for the rear-end collision are unpersuasive. While Plaintiff cites cases where courts have found that mere assertions of a blind spot, lane change, or sudden stop are insufficient to rebut the presumption of negligence, these cases involve distinct factual scenarios that are not directly applicable to the instant matter. In its May Decision, the Court determined that Defendant's proffered explanation for the rear-end collision, namely, that Plaintiff's vehicle unexpectedly entered Defendant's blind spot between two trucks, was sufficient to raise a triable issue of fact.
II. Review of the Ordonez Decision
In rendering its decision, the Court placed significant weight on the precedent established in Ordonez. In that case , the Appellate Division reversed a trial court's decision granting summary judgment to the plaintiff on the issue of liability. The defendant averred that, due to the height and design of the truck, he could not see the plaintiff's vehicle when it moved in front of his truck "entirely within his blind spot" (see Ordonez, 205 A.D.3d at 1043). The appellate court found that the defendant's explanation in that case was sufficient to rebut the presumption of negligence (id.).
Plaintiff argues that the unique circumstances of Ordonez render it inapplicable to the present case. In particular, Plaintiff highlights that the defendant truck driver in Ordonez was, at one point, the sole vehicle stopped at a red light, and did not observe any other vehicles in the roadway before the moment of impact. Therefore, according to Plaintiff, it was unforeseeable that a vehicle would move in front of the defendant's dump truck from the right side at a red traffic light. In contrast, Plaintiff argues that it was foreseeable and expected that vehicles would change lanes in front of Defendant's truck while he was stopped in traffic for three minutes.
The Court disagrees with Plaintiff's contentions and finds that the fact patterns in Ordonez and the instant matter are not materially distinguishable for the purposes of adjudicating a motion for summary judgment.
Defendant, like his counterpart in Ordonez, claims that the rear-end collision could only have occurred due to Plaintiff's unsafe lane change within his truck's blind spot. Although the defendant in Ordonez was not driving in congested traffic, both defendants were initiating movement from a full stop. Most importantly, both defendants allege that they did not observe the plaintiff change lanes or establish themselves as the lead vehicle prior to the collision. Despite the lack of direct observation, the Ordonez court found that the defendant's explanation was sufficient to raise a triable issue of fact and reverse the trial court's grant of summary judgment.
Plaintiff contends that a lane change is as foreseeable as a sudden stop in heavy traffic conditions. However, Plaintiff fails to provide any supporting authority for this proposition. Conversely, Plaintiff cites numerous cases, as discussed herein, which establish the foreseeability of sudden stops in stop-and-go traffic. Moreover, Defendant asserts that Plaintiff made an unsafe and illegal lane change into his blind spot (see Vehicle and Traffic Law § 1128). There is no basis for the Court to conclude that the lane change made by Plaintiff in the instant matter was foreseeable.
In support of his motion, Plaintiff argues that Defendant breached the well-established duty of care owed to other motorists, namely, the obligation "to see what through proper use of his senses he should have seen" (see Thompson v Schmitt, 74 A.D.3d 789 [2d Dept 2010]; see also Bolta v Lohan, 242 A.D.2d 356 [2d Dept 1997]). Here, like his counterpart in Ordonez, Defendant claims that he was unable to observe Plaintiff's vehicle due to the manner in which Plaintiff maneuvered into Defendant's blind spot.
The Court finds that Defendant's testimony, if credited, establishes that it was impossible for Defendant to see Plaintiff's vehicle change lanes within his blind spot prior to the collision. Furthermore, the Court rejects Plaintiff's assertion that the mere completion of the lane change establishes that Plaintiff's vehicle was subsequently visible to Defendant. Given the heavy traffic conditions and the limited visibility afforded to Defendant, the Court finds that Plaintiff's argument does not refute Defendant's plausible non-negligent explanation for the collision.
Like the defendant in Ordonez, Defendant in the instant case contends that the collision occurred entirely within his blind spot. Given this assertion, the Court cannot conclude that Defendant violated the specific provisions of the Vehicle and Traffic Law cited by Plaintiff, which require motorists to sound their horns to warn of a collision or to maintain a safe following distance (Vehicle and Traffic Law §§ 1146 [a]; 1129 [a]). Therefore, Plaintiff's contention that Defendant is negligent as a matter of law is unavailing.
Considering the evidence in the light most favorable to Defendant, the Court finds that Defendant's explanation of the rear-end collision, if credited, raises a triable issue of fact. Although Defendant did not observe Plaintiff's vehicle during or after the lane change, the Court, following the precedent established in Ordonez, finds that Defendant's explanation is not speculative. Furthermore, the Court does not find Defendant's testimony to be manifestly untrue, refuted by physical evidence, or contrary to common experience as to render it incredible as a matter of law (see Ahr v Karolewski, 48 A.D.3d 719 [2d Dept 2008]).
Plaintiff further argues that the appellate court's ruling in Ordonez was significantly influenced by an expert report, submitted by the defendant, providing a detailed accident reconstruction analysis supporting the defendant truck driver's account of the collision. By contrast, in the instant case, Defendant presented only his deposition testimony in opposition to the instant motion. According to Plaintiff, absent expert testimony or measurements corroborating the existence and extent of Defendant's truck's purported blind spot, Defendant's non-negligent explanation for the rear-end collision is insufficient to withstand summary judgment.
While the Court acknowledges the value of expert testimony in corroborating a defendant's account, as demonstrated in Ordonez, the absence of such evidence here does not preclude Defendant from raising a triable issue of fact. The Court does not interpret Ordonez to establish a heightened requirement that truck operators must present expert testimony to substantiate the existence or impact of a blind spot in order to invoke it as a non-negligent explanation for a rear-end collision. Plaintiff has not cited any statute or caselaw, other than Ordonez, to support the assertion that the lack of expert evidence is fatal to Defendant's opposition to summary judgment. Furthermore, the expert testimony in Ordonez assumed heightened importance due to the defendant's death during the litigation, which precluded his ability testify at deposition or trial. In contrast, Defendant in the instant case has been deposed and is available to testify at trial.
Pursuant to CPLR 3212 (b), a motion for summary judgment must be supported by affidavit, pleadings, and other available proof, such as depositions and admissions. While the party opposing summary judgment is free to submit expert testimony, the Court does not find any requirement to do so which is applicable to the facts in the instant case. To defeat a summary judgment motion, the opposing party must "show facts sufficient to require a trial of any issue of fact" (id.) . Although the opposing party must generally make this showing by producing evidence in admissible form, there are exceptions to that rule not available to the movant (see Zuckerman v City of New York, 49 N.Y.2d 557, 562 [1980]; see also Friends of Animals, Inc. v Associated Fur Mfrs., Inc., 46 N.Y.2d 1065 [1979]).
Here, Defendant submitted a certified transcript of his deposition testimony wherein he proffered a non-negligent explanation of the rear-end collision. Contrary to Plaintiff's assertion that expert testimony is required, courts have routinely denied summary judgment based primarily on the opposing party's deposition testimony (see Faria v City of Yonkers, 84 A.D.3d 1306 [2d Dept 2011]; see also Chowdhury v Rodriguez, 57 A.D.3d 121 [2d Dept 2008]; see also Torres v Jeremias, 283 A.D.2d 484 [2d Dept 2001]; see also Hutchison v Estate of Kursh, 198 A.D.3d 509 [1st Dept 2021]; see also Lantigua v 700 W. 178th St. Assoc., L.L.C., 1 A.D.3d 151 [1st Dept 2003]; see also State Bank of Albany v Roarke, 91 A.D.2d 1093 [3d Dept 1983]).
In addition to the deposition transcripts of the respective parties, a police report was submitted by Plaintiff and was found admissible within the May Decision. The "Officer's Notes" section of the police report, purportedly based on similar accounts of the accident provided by both parties, indicates that Defendant did not observe Plaintiff enter the lane in front of him due to limited visibility in the truck. Although the Court cannot definitively determine the source of the information contained within the officer's notes, the reference to Plaintiff's lane change being within Defendant's blind spot is consistent with Defendant's deposition testimony, and appears to be a contemporaneous account of the collision.
There is no statutory authority or legal precedent before the Court to support Plaintiff's assertion that Defendant was required to hire an accident reconstruction expert in defense of the motion for summary judgment. Moreover, accepting Plaintiff's argument would violate the well-establish legal principle that summary judgment is a drastic remedy which should only be granted when there is no doubt as to the absence of triable issues (Chiara v Town of New Castle, 126 A.D.3d 111, 125 [2d Dept 2015], citing Millerton Agway Co-op, Inc. v Briarcliff Farms, Inc., 17 N.Y.2d 57 [1966]).
Therefore, after careful consideration, the Court finds that its reliance on the Ordonez decision was appropriate. The material facts in Ordonez are similar to those in the instant matter, namely that the defendant truck operator raised the plaintiff's unsafe maneuver into his blind spot as a non-negligent explanation for the rear-end collision. The Court finds that Defendant's deposition testimony and the police report were sufficient evidence to establish the non-negligent defense and raise a triable issue of fact, in accordance with the Appellate Division's holding in Ordonez.
III. Public Policy Argument
In support of the instant motion, Plaintiff warns the Court of the potential public policy implications of its May Decision. Plaintiff argues that accepting the "blind spot" defense in this case could establish a dangerous precedent, effectively allowing operators of large vehicles to avoid liability for collisions by simply claiming that they could not see the other vehicle.
As clarified by the Court herein, the May Decision was not predicated on Defendant's assertion that there was a blind spot over the hood of his truck. Rather, the Court relied on Defendant's testimony that Plaintiff changed lanes within and into his blind spot immediately before the collision. The Court found that this non-negligent explanation raised a triable issue of fact, precluding summary judgment. The ultimate determination of liability rests with the jury (see Andre v Pomeroy, 35 N.Y.2d 361 [1974]). Therefore, Plaintiff's concerns regarding potential public policy implications are unfounded.
Furthermore, the Court's determination in its May Decision was fact-specific and tailored to the unique circumstances of the instant case. The decision rested on Defendant's assertion that the rear-end collision could only have occurred, under those specific traffic conditions, if Plaintiff executed an unsafe lane change into Defendant's blind spot. Any potential public policy implications of the Court's May Decision are limited by the unique facts at bar.
In contrast, granting a motion for summary judgment here could have unintended public policy implications. If established, such precedent would effectively deprive truck operators of their day in court and subject them to liability for rear-end collisions caused by drivers who execute unsafe maneuvers within their blind spots (see Hon. Mark C. Dillon, 2021 Supp Practice Commentaries, McKinney's Cons Laws of NY, CPLR C3212:1). This Court, therefore, adheres to the well-established principle that motions for summary judgment are a drastic remedy, to be used sparingly (see Chiara, 126 A.D.3d at 125, citing Millerton Agway Co-op, Inc, 17 N.Y.2d 57; see also Andre, 35 N.Y.2d 361).
IV. Conclusion
When adjudicating a motion for summary judgment, the Court's role is limited to determining whether issues of fact exist (see Schumacher v Pucciarelli, 161 A.D.3d 1205 [2d Dept 2018]). The Court does not sit as a trier of fact (id.). In simpler terms, the Court's function is "issue-finding", rather than "issue-determination" (see Ferrante v Am. Lung Ass'n, 90 N.Y.2d 623 [1997], quoting Sillman v Twentieth Century-Fox Film Corp., 3 N.Y.2d 395 [1957]).
In its May Decision, the Court determined that Defendant presented a non-negligent explanation of the rear-end collision sufficient to rebut the presumption of negligence and raise a triable issue of fact. Upon reargument, the Court finds that it correctly applied the facts at bar to pertinent caselaw and appropriately relied on the Ordonez decision in its holding. Therefore, the Court will adhere to its May Decision in its entirety.
Whether Plaintiff executed an unsafe lane change within and into Defendant's blind spot, thereby making it impossible for Defendant to avoid the rear-end collision, is an issue of fact for the jury (see Seaman v Town of Babylon, 231 A.D.2d 704 [2d Dept 1996] citing Pannetta v Ramo, 138 A.D.2d 686 [2d Dept 1988]).
The Court notes that the police report indicates there was no observable damage to either vehicle involved in the collision. In the Court's view, this finding highlights the differing accounts provided by Plaintiff and Defendant in their respective depositions regarding the speed of, and distance between, their vehicles at the time of, and immediately after, Plaintiff's lane change, and the number of times Defendant's truck collided with Plaintiff's vehicle. The resolution of issues regarding the credibility of witnesses and the accuracy of their testimony are squarely within the province of the jury (see Seaman, 231 A.D.2d 704, citing Pannetta, 138 A.D.2d 686).
DECISION AND ORDER
Plaintiff's motion is hereby GRANTED to the extent that Plaintiff is granted leave to reargue this Court's decision dated May 31, 2024.
Upon reargument, the remaining branches of Plaintiff's motion are hereby denied.
Any items of relief that are not directly addressed herein are hereby denied. The foregoing constitutes the decision and order of the Court.