Opinion
Index No. 28215/2018E
01-23-2020
ELENA LENDOF, Plaintiff, v. ELIAS FERNANDEZ and KRISTOPHER RAMON HADDOCK, Defendants.
Unpublished Opinion
The following papers numbered 49 to 53, in the NYSCEF System were read on this motion for SUMMARY JUDGMENT (LIABILITY) , noticed on October 24, 2019 and duly submitted as No. 37 on the Motion Calendar of December 02, 2019
NYSCEF Doc. Nos.
Notice of Motion - Exhibits and Affidavits Annexed 49-53
Notice of Cross-Motion - Exhibits and Affidavits Annexed
Answering Affidavit and Exhibits
Replying Affidavit and Exhibits
Filed Papers
Memoranda of Law
Stipulations
Upon the foregoing papers, plaintiffs motion for partial summary judgment on the issue of defendant Fernandez's liability for causing the subject accident is granted, in accordance with the annexed decision and order.
DECISION AND ORDER
JOHN R. HIGGITT, J.
Upon plaintiffs October 8. 2019 notice of motion and the affirmation, affidavit, and exhibits submitted in support thereof; there being no opposition to the motion; and due deliberation; plaintiff s motion for partial summary judgment on the issue of defendant Fernandez's liability for causing the subject accident is granted.
This is a negligence action to recover damages for personal injuries plaintiff sustained in a motor vehicle accident that occurred on February 21.2018. In support of the motion, plaintiff submits a copy of the pleadings, the police accident report, defendant Fernandez's deposition testimony, and her affidavit. Plaintiff averred she was a passenger in defendant Fernandez's vehicle when that vehicle struck the rear of defendant Haddock's vehicle, which was stopped due to a red traffic light.
Defendant Fernandez testified that at the time of the accident he was stopped behind defendant Haddock's vehicle: that Fernandez took his foot off the brakes and his vehicle rolled forward: and that his vehicle struck the rear of defendant Haddock's vehicle.
"A rear-end collision with a stationary vehicle creates a prima facie case of negligence requiring a judgment in favor of the stationary vehicle unless defendant proffers a non-negligent explanation for the failure to maintain a safe distance ... A driver is expected to drive at a sufficiently safe speed and to maintain enough distance between himself [or herself] and cars ahead of him [or her] so as to avoid collisions with stopped vehicles, taking into account weather and road conditions" (LaMasa v Bachman, 56 A.D.3d 340. 340 [1st Dept 2008]). A rear-end collision constitutes a prima facie case of negligence against the rearmost driver in a chain confronted with a stopped or stopping vehicle (see Cabrera v. Rodriguez, 72 A.D.3d 553 [1st Dept 2010]).
Vehicle and Traffic Law § 1129(a) states that 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 vehicles and the traffic upon and the condition of the highway" (see Darmento v Pacific Molasses Co., 81 N.Y.2d 985. 988 [1993]). Based on the plain language of the statute, a violation is clear when a driver follows another too closely without adequate reason and that conduct results in a collision (id.).
Defendant Fernandez did not oppose plaintiffs motion and thus failed to raise a triable issue of fact in opposition to plaintiff s prima facie showing.
Under the circumstances, the "innocent passenger" plaintiff is entitled to dismissal of defendant Fernandez's second affirmative defense alleging plaintiff s comparative fault (see Oluwatayo v Dulinayan, 142 A.D.3d 113 [1st Dept 1999J).
Accordingly, it is
ORDERED, that plaintiffs motion seeking partial summary judgment on the issue of defendant Fernandez's liability is granted; and it is further
ORDERED, that the defendant Fernandez's second affirmative defense alleging plaintiffs comparative fault is dismissed.
The parties are reminded of the February 24, 2020 pre-trial conference before the undersigned.
This constitutes the decision and order of the court.