Opinion
605469/2019
01-06-2020
Sharika S. GOODE, Plaintiffs, v. Yoni R. GONZALEZ and Johnny R. Gonzalez, Defendants.
SALENGER, SACK, KIMMEL & BAVARO, LLP, Attorneys for Plaintiff, 180 Froehlich Farm Boulevard, Woodbury, NY 11797 GENTILE & TAMBASCO, Attorneys for Defendants, 115 Broadhollow Rd, Suite 300, Melville, NY 11747
SALENGER, SACK, KIMMEL & BAVARO, LLP, Attorneys for Plaintiff, 180 Froehlich Farm Boulevard, Woodbury, NY 11797
GENTILE & TAMBASCO, Attorneys for Defendants, 115 Broadhollow Rd, Suite 300, Melville, NY 11747
Robert F. Quinlan, J.
Upon the following papers read on this motion for an order granting partial summary judgment against defendants on the issue of liability ; Notice of Motion and supporting papers (Doc #15-22); Affirmation in Opposition and supporting papers (Doc #26-27); Reply Affirmation (Doc #29); it is,
ORDERED that the motion by plaintiff Sharika S. Goode for partial summary judgment on the issue of liability pursuant to CPLR § 3212 is granted; and it is further
Plaintiff Sharika S. Goode commenced this action to recover damages for alleged personal injuries sustained as a result of a motor vehicle accident that occurred on September 10, 2018 at approximately 8:59 a.m. while plaintiff was entering the northbound ramp off of Brentwood Road onto Sunrise Highway, Town of Islip, Suffolk County, New York.
Plaintiff now moves for partial summary judgment on the issue of defendants' liability. In support of the motion, plaintiff submits the pleadings, the affirmation of counsel, a certified copy of the police report (MV-104 A), and plaintiff's sworn affidavit. The MV 104-A refers to plaintiff's statement to the responding police officer that she was traveling southbound on Brentwood Road when she was "rear ended" by the vehicle owned by defendant Yoni R. Gonzalez and operated by defendant Johnny R. Gonzalez ("defendant Johnny"), and the statement by defendant Johnny to the officer that he was trying to stop, but the roads were slick and his vehicle kept rolling. The accident report confirmed it was raining and that the roadway was wet. Although plaintiff's affidavit seems awkwardly drawn, stating that she was "entering the northbound ramp off of Brentwood Road on to Sunrise Highway," since Brentwood Road was a north-south roadway (see MV-104 A), she clearly states she was slowing in traffic and struck in the rear by defendants' vehicle.
The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. To grant summary judgment it must clearly appear that no material and triable issue of fact is presented (see Sillman v. Twentieth Century-Fox Film Corp. , 3 NY2d 395 [1957] ). The movant has the initial burden of proving entitlement to summary judgment, failure to make such a showing requires denial of the motion regardless of the sufficiency of the opposing papers (see Winegrad v. New York Univ. Med. Ctr. , 64 NY2d 851 [1985] ). Once such proof has been offered, the burden then shifts to the opposing party, who, in order to defeat the motion for summary judgment, must proffer evidence in admissible form to establish a factual issue sufficient to require a trial ( CPLR 3212 [b] ; see Zuckerman v. City of New York , 49 NY2d 557 [1980] ). The court's function on such a motion is to determine whether issues of fact exist, not to resolve issues of fact or to determine matters of credibility ( Vega v. Restani Corp. , 18 NY3d 499 [2012] ).
It is well settled that when a driver of a motor vehicle approaches another motor vehicle from the rear, that driver is bound to maintain a reasonably safe distance and a reasonably safe speed under the prevailing conditions to avoid colliding with the other vehicle (see Vehicle and Traffic Law § 1129 [a] ; Niyazov v. Hunter EMS, Inc. , 154 AD3d 954 [2d Dept 2017] ; Jimenez v. Ramirezi, 171 Ad3d 902 [2d Dept 2019] ). Moreover, a rear-end collision creates a prima facie case of negligence on the part of the operator of the rear vehicle, requiring that operator to come forward with evidence of a non-negligent explanation for the collision to rebut the inference of negligence (see Russell v. J. L. Femia Lanscape Services, Inc., 161 AD3d 1119 [2d Dept 2018] ). As plaintiff's evidence showed that her vehicle was struck in the rear by the vehicle driven by defendant Johnny, she demonstrated her prima facie entitlement to judgment as a matter of law (Niyazov v. Hunter EMS, Inc. , supra ; Batashvili v. Veliz-Palacios , 170 AD3d 791 [2d Dept 2019] ). In order to succeed in her motion to set the liability of defendants for their negligence, plaintiff is not required to prove her freedom from comparative fault (see Rodriguez v. City of New York , 31 NY3d 312 [2018] ).
Defendants attempt to provide a non-negligent explanation by submitting their attorney's affirmation and the affidavit of defendant Johnny. In his affidavit defendant Johnny avers that at the time of the accident he was driving the 2002 Audi owned by his father, defendant Yoni R. Gonzalez, heading southbound on Brentwood Road. He was traveling approximately 20 miles per hour in the same lane as plaintiff who was ahead of him. The weather was rainy and he had the headlights and the windshield wipers on. Just before the accident plaintiff's vehicle "abruptly slowed down," causing him to apply the brake to stop his vehicle but was unable to stop before impact because it was raining and the road was wet. His vehicle skidded into the back of plaintiff's vehicle. He refers to plaintiff's affidavit and confirms that she was attempting to enter the ramp from Brentwood Road to Sunrise Highway. He further avers he observed the back of plaintiff's vehicle and that a right turn signal never came on.
Defendants' submissions fail to rebut the inference of defendant Johnny's negligence established by plaintiff's submissions by failing to provide a non-negligent explanation for the collision; in fact defendant Johnny's affidavit confirms his negligence. A driver, as a matter of law, is charged with seeing what there is to be seen on the road, that is, what should have been seen, or what is capable of being seen at the time, and must exercise reasonable care under the circumstances to avoid an accident (see Wilson v. Rosedom , 82 AD3d 970 [2d Dept 2011] ; Lu Yuan Yang v. Howsal Cab Corp. , 106 AD3d 1055 [2d Dept 2013] ). When approaching another vehicle from behind a driver is required to maintain a reasonably safe rate of speed, maintain control of his or her vehicle, and use reasonable care to avoid colliding with the other vehicle ( Schmertzler v. Lease Plan U.S.A., Inc. , 137 AD3d 1101 [2d Dept 2016] ). Here defendant's allegation that he observed the back of plaintiff's vehicle and did not see her right turn signal go on, without more, is insufficient to raise a triable issue of fact as to his negligence. Notably defendant does not claim plaintiff abruptly stopped, or abruptly changed lanes, or that he never saw brake lights. Additionally he fails to establish how far behind plaintiff's vehicle he was traveling. Instead he avers that plaintiff "abruptly slowed down" and that plaintiff's right turn signal never came on. Defendant's explanation that he did not observe any turning signal on plaintiff's vehicle is insufficient to rebut the presumption of his negligence created by the rear end collision and his statements, or to raise a triable issue of fact to defeat plaintiff's motion for summary judgment as to defendants' liability for the happening of the accident (see Macauley v. ELRAC, Inc. , 6 AD3d 584[2d Dept. 2004] ). Plaintiff established that she was lawfully slowing in traffic while entering the ramp from Brentwood Road to Sunrise Highway when she was struck in the rear by defendants' vehicle, all facts defendant Johnny's affidavit confirm. Defendants' submission raise no credible questions of fact as to defendants' liability requiring a trial on that issue.
Defendants' claim that plaintiff's motion should be denied as premature because discovery is outstanding is without merit as defendant has failed to offer an evidentiary basis to suggest that discovery may reveal relevant evidence essential to opposing the plaintiff's motion to set defendants' liability for the accident, or that any such facts were exclusively under plaintiff's control (see CPLR 3212[f] ; Niyazov v. Bradford , 13 AD3d 501 [2d Dept 2004] ; Abramov v. Miral Corp. , 24 AD3d 397 [2d Dept 2005] ; Yimin Zhou v. 828 Hamiltion, Inc. 173 AD3d 943 [2d Dept 2019] ). The mere hope or speculation that evidence sufficient to defeat a motion for summary judgment may be uncovered during the discovery process is an insufficient basis for denying the plaintiff's motion (see Fenko v. Mealing , 43 AD3d 856 [2d Dept 2007] ).
But as defendants' have raised the affirmative defense of "comparative negligence," defendant Johnny's affidavit raises the claim that plaintiff failed to signal her intention to turn from the roadway onto the entry ramp. Both drivers acknowledge in their affidavits that plaintiff was turning from the southbound lane of travel on Brentwood Road to enter the ramp towards Sunrise Highway. In neither her affidavit nor in her statement memorialized by the police officer, does plaintiff mention signaling her intent to turn from Brentwood Road to the ramp. Vehicle and Traffic Law § 1163 requires such a signal, and if a trier of fact finds that claim to be credible, such a violation constitutes negligence on the part of plaintiff. Although this raises a question of fact as to the comparative negligence of plaintiff for the happening of the accident, as defendants' negligence has already been established, this issue will be determined by an apportionment of any responsibility between the parties during the trial by the trier of fact (see Rodriguez v. City of New York , supra ).
Accordingly plaintiff's motion is granted to the extent set forth above.
This constitutes the decision and order of the Court.