Opinion
Index No. 711737/2018 Motion Seq. No.:004
11-15-2023
ALCIDES M. GONZALEZ and CHRISTINA A. GONZALEZ, Plaintiff(s), v. BRIAN DUTTON and MARTIN HOOS, Defendant(s).
Unpublished Opinion
Motion Date: October 31, 2023
Present: HONORABLE DENIS J. BUTLER Justice
Denis J. Butler, J.S.C.
The following papers were read on this motion by plaintiff for an order directing the clerk of this Court to restore this case to the active case calendar and permitting the plaintiffs to re-file the note of issue to place this action on the trial calendar; and pursuant to CPLR § 3212 granting the plaintiffs summary judgment on the issue of liability in this action against the defendant Brian Dutton; and pursuant to CPLR § 3211(b) striking the Affirmative Defenses raised in the Answer of defendant Brian Dutton.
Papers Numbered
Notice of Motion, Affirmation, Exhibits.................E63-75
Affirmation In Opposition, Exhibit......................E79-84
Reply Affirmation, Exhibits.............................E85
Upon the foregoing papers, it is ordered that this motion is determined as follows:
This action arises from a three car chain-reaction motor vehicle accident that occurred on May 25, 2018. The vehicle owned and operated by defendant Martin Hoos (hereinafter "Hoos") was the middle vehicle in the chain and traveling behind the lead vehicle operated by plaintiff, Alcides Gonzalez (hereinafter "Gonzalez"). The vehicle owned and operated by defendant Brian Dutton (hereinafter "Dutton") was the rear-most vehicle and traveling behind defendant Hoos' vehicle.
The evidence establishes that plaintiff and both defendants were attempting to merge onto the Long Island Expressway from the Cross Island Parkway, Queens County, New York, when plaintiffs vehicle was struck in the rear by defendant Hoos' vehicle. Defendant Hoos testified that he was struck in the rear by defendant Dutton's vehicle and propelled into plaintiff's vehicle. Defendant Dutton admitted coming into contact with defendant Hoos vehicle.
Plaintiffs in this motor vehicle action moves for summary judgment on the issue of liability against defendant Dutton. Defendant Dutton opposes.
A proponent for summary judgment must make a prima facie showing of entitlement to judgment, as a matter of law, through the submission of sufficient evidence to demonstrate the absence of any material issues of fact (see Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324 [1986]). On a motion for summary judgment on the issue of a defendant's liability, a plaintiff is no longer required to show freedom from comparative fault to establish his or her prima facie entitlement to judgment as a matter of law (see Rodriquez v City of New York, 31 N.Y.3d 312, 318 [2018]; Marangoudakis v Suniar, 2022 NY Slip Op 05208 [2d Dept 2022]) . "Even though a plaintiff is not required to establish his or her freedom from comparative negligence to be entitled to summary judgment on the issue of liability, the issue of a plaintiff's comparative negligence may be decided in the context of a summary judgment motion where the plaintiff moves for summary judgment dismissing a defendant's affirmative defense alleging comparative negligence and culpable conduct on the part of the plaintiff" (Kwok King Ng v West, 195 A.D.3d 1006, 1008 [2d Dept 2021]). Once the movant establishes the prima facie entitlement to judgment, the burden shifts to the opposing party to produce evidence, in admissible form, sufficient to establish the existence of triable issues of fact (see Zuckerman v City of New York, 49 N.Y.2d 557, 63 [1980]).
Vehicle and Traffic Law §1129 (a) provides that "[tlhe driver of a motor vehicle shall not follow another vehicle more closely than is reasonably prudent, having due regard for the speed of such vehicles and the traffic upon and the condition of the highway." It is well settled that a rear-end collision creates a prima facie case of liability with respect to the operator of the rear vehicle and imposes a duty on that operator to come forward with a non-negligent explanation for the collision (see Leviiz v Chaudlzry, 20 A.D.3d 472 [2006]) . The operator of the following vehicle must rebut the inference of negligence created by an unexplained rear-end collision, as that party is in the best position to explain the cause, and if the party cannot come forward with any evidence to rebut the inference, then, as a matter of law, the plaintiff my be awarded summary judgment (see Leal v Wolff, 224 A.D.2d 392 [2d Dept 1996]).
Here, plaintiffs have met their prima facie burden of establishing entitlement to summary judgment against defendant Dutton on the issue of liability, as it is undisputed that plaintiff Gonzalez's vehicle was struck in the rear by defendant Hoos' vehicle after defendant Hoos vehicle was propelled into plaintiff Gonzalez's vehicle by defendant Dutton's vehicle . Having made the requisite prima facie showing of entitlement to summary judgment, the burden then shifted to the non-moving party to raise a triable issue of fact as to whether the moving party was also negligent, and if so, whether that negligence contributed to the happening of the accident (see Goemans v. County of Suffolk, 57 AD4d 478 (2d Dept 2007).
In opposition, defendant Dutton submitted an affidavit wherein defendant Dutton admitted to being involved in the accident and attested that plaintiff and defendant Hoos were stopped on the ramp and that defendant Dutton "did not immediately see the vehicles". Further, in said Affidavit, defendant Dutton admitted that defendant Dutton's vehicle made "slight contact with the rear" of Hoos' vehicle. These averments were insufficient to raise a triable issue of fact on the issue of liability or on the issue of comparative negligence (see Sheehan v Marshall, 9 A.D.3d 403, 404 (2d Dept 2004)).
Counsel for plaintiffs also moves to restore the case to active status and permit the plaintiff to re-file their note of issue to place the matter on the trial calendar. Since the note of issue the plaintiff filed on January 18, 2020, was vacated by the Order of the Honorable Janice A. Taylor, the action was restored to the pre-note of issue discovery stage. "Because no note of issue had been filed, this action was not on the trial calendar". (see, Ryskin v Corniel, 181 A.D.3d 742 [2d Dept. 2020]). Therefore, the court's action of marking the action "disposed" after the plaintiff failed to file and serve a note of issue by the court-ordered deadline, did not dismiss the action. (see, Arroyo v. Board of Educ. Of City of N.Y., 110 A.D.3d 17 [2d Dept. 2013]) . As the plaintiff filed a note of issue on August 8, 2023, that branch of plaintiff's motion seeking to restore the case to active status is denied as moot as the note of issue was filed on August 8, 2023.
ORDERED that summary judgment on the issue of liability is GRANTED in favor of the plaintiffs and against defendant Dutton; and it is further
ORDERED that the defendant Dutton's affirmative defenses of comparative negligence and failure to wear a seatbelt are dismissed; and it is further
ORDERED plaintiffs motion to restore the case to active status and permit the plaintiff to re-file their note of issue to place the matter on the trial calendar is denied as moot as the note of issue was filed on August 8, 2023.
This constitutes the decision and order of the court.