Opinion
Index No. 600728/2019E Motion Sequence No. 002; MG
01-27-2020
Tina L. Massa and Nicholas Massa, Plaintiffs, v. Kenneth B. Simpson and Kenneth B. Simpson, Jr., Defendants.
Attorney for Plaintiffs: Suris & Associates, P.C. Attorney for Plaintiff Nicholas C. Massa (on Counterclaim) Law Offices of Karen L. Lawrence Attorney for Plaintiffs: Suris & Associates, P.C. Attorney for Defendants Kenneth B. Simpson and Kenneth B. Simpson, Jr. Richard T. Lau & Associates
Unpublished Opinion
Motion Date: 10/30/2019
Submitted: 1/15/2019
Attorney for Plaintiffs:
Suris & Associates, P.C.
Attorney for Plaintiff Nicholas C. Massa (on Counterclaim)
Law Offices of Karen L. Lawrence
Attorney for Plaintiffs:
Suris & Associates, P.C.
Attorney for Defendants
Kenneth B. Simpson
and Kenneth B. Simpson, Jr.
Richard T. Lau & Associates
William B. Rebolini, Judge
Upon the E-file document list numbered 17 to 29 and 32 to 33 read on this application by plaintiffs for an order granting them summary judgment against defendants on the issue of liability pursuant to CPLR 3212; it is
ORDERED that plaintiffs' motion for summary judgment on the issue of liability is granted.
In this action, plaintiffs seek damages for personal injuries alleged to have occurred as a result of a motor vehicle accident that occurred on January 27, 2016. The action was commenced by the filing of a summons and complaint on January 10, 2019. Issue was joined on March 18, 2019. Another action under index number 617086/2018 was commenced by plaintiff Rosemary T. Donnelly (the "first action") against defendants Kenneth B. Simpson and Kenneth B. Simpson, Jr. (collectively referred to herein as the "Simpson defendants"), Nicholas Massa and Neil Massa (the "Massa defendants"). This first action involves the same motor vehicle accident. In the first action, plaintiff Donnelly and defendants Nicholas Massa and Neil Massa were granted summary judgment on the issue of liability against the Simpson defendants by order of this Court dated May 1, 2019. In that decision, the court found that the Massa defendants rebutted the inference of negligence by providing a non-negligent explanation for the accident. As noted by the court, Nicholas Massa presented that "his vehicle completely stopped behind [the Donnelly vehicle].... and was propelled into the [Donnelly vehicle] when it was struck in the rear by [the Simpson vehicle]." The court further noted that the Simpson defendants failed to raise an issue of fact. Plaintiffs herein, Tina Massa and Nicholas Massa (the "Massa plaintiffs") now move for summary judgment on the issue of liability. In support of their motion, plaintiffs submit, inter alia, a copy of the pleadings in this action and the first action and the order in the first action. Defendants oppose the motion.
It is well settled that a party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issue of fact (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923 [1986]; Friends of Animals v. Associated Fur Mfrs., 46 N.Y.2d 1065, 1067, 416 N.Y.S.2d 790 [1979]). The failure of the moving party to make a prima facie showing requires the denial of the motion regardless of the sufficiency of the opposing papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 487 N.Y.S.2d 316 [1985]). However, once the movant has made the requisite showing, the burden then shifts to the party opposing the motion to produce evidentiary proof in admissible form sufficient to require a trial on any material issue of fact (Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595 [1980]. To defeat a motion for summary judgment, a party opposing such motion must lay bare his proof in evidentiary form; conclusory allegations are insufficient to raise a triable issue of fact (see Friends of Animals, Inc. v. Associated Fur Mfrs., 46 N.Y.2d 1065, 416 N.Y.S.2d 790; Burns v. City of Poughkeepsie, 293 A.D.2d 435, 739 N.Y.S.2d 458 [2d Dept 2002]). In deciding the motion, the Court must view all evidence in the light most favorable to the nonmoving party (Nomura, supra; see also Ortiz v. Varsity Holdings, LLC, 18 N.Y.3d 335, 339, 937 N.Y.S.2d 157 [2011]). A motion for summary judgment should be denied where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility (see Chimbo v. Bolivar, 142 A.D.3d 944, 37 N.Y.S.3d 339 [2d Dept 2016]; Benetatos v. Comerford, 78 A.D.3d 730, 911 N.Y.S.2d 155 [2d Dept. 2010]).
When a driver approaches another vehicle from the rear, he is bound to maintain a reasonably safe rate of speed and to maintain control of his vehicle and use reasonable care to avoid colliding with the other vehicle (Vehicle and Traffic Law § 1129 [a]; Gallo v. Jairath, 122 A.D.3d 795, 996 N.Y.S.2d 682 [2d Dept 2014]; Cajas-Romero v. Ward, 106 A.D.3d 850, 965 N.Y.S.2d 559 [2d Dept 2013]; Nsiah-Ababio v. Hunter, 78 A.D.3d 672, 913 N.Y.S.2d 659 [2d Dept 2010]). A driver is negligent in failing to see that which under the facts and circumstances he should have seen by the proper use of his senses (see Barbieri v. Vokoun, 72 A.D.3d 853, 900 N.Y.S.2d 315 [2d Dept.2010]; Domanova v. State of New York, 41 A.D.3d 633, 838 N.Y.S.2d 644 [2d Dept. 2007]; Lester v Jolicofur et al., 120 A.D.2d 574; 502 N.Y.S.2d 61 [2d Dept 1986]). The occurrence of a rear-end collision with a stopped or stopping vehicles creates a prima facie case of negligence on the part of the operator of the rear vehicle and imposes a duty on that operator to come forward with a non- negligent explanation for the collision (Montalvo v. Cedeno, 170 A.D.3d 1166, 96 N.Y.S.3d 638 [2d Dept. 2019]; McLaughlin v. Lunn, 137 A.D.3d 757, 26 N.Y.S.3d 338 [2d Dept 2016]; Cheow v. Cheng Lin Jin, 121 A.D.3d 1058, 995 N.Y.S.2d 186 [2d Dept 2014]; Perez v Roberts, 91 A.D.3d 620, 936 N.Y.S.2d 259 [2d Dept 2012]; Volpe v. Limoncelli, 74 A.D.3d 795, 902 N.Y.S.2d 152 [2d Dept 2010]; Ramirez v. Konstanzer, 61 A.D.3d 837, 878 N.Y.S.2d 381 [2d Dept 2009]). This burden is placed on the driver of the rear vehicle because he is in the best position to explain whether the collision was due to a mechanical failure, a sudden stop of the vehicle ahead, unavoidable skidding on wet pavement, or some other reasonable cause (Sayyed v. Murray, 109 A.D.3d 464, 970 N.Y.S.2d 279 [2d Dept 2013]; Fajardo v. City of New York, 95 A.D.3d 820, 943 N.Y.S.2d 587 [2d Dept 2012]). "Vehicle stops which are foreseeable under the prevailing traffic conditions, even if sudden and frequent, must be anticipated by the driver who follows, since he or she is under a duty to maintain a safe distance between his or her car and the car ahead" (Volpe v. Limoncelli, supra at 795-796,902 N.Y.S.2d 152 [2d Dept 2010], quoting Shamah v. Richmond County Ambulance Serv., 279 A.D.2d 564, 565, 719 N.Y.S.2d 287 [2d Dept 2001]; see Gutierrez v. Trillium, USA, LLC, 111 A.D.3d 669, 974 N.Y.S.2d 563 [2d Dept 2013]; Kimyagarov v. Nixon Taxi Corp., supra). Thus, the assertion that the lead car suddenly stopped, by itself, is insufficient to rebut the presumption of negligence by the rear vehicle (see Waide v. Ari Fleet, LT, 143 A.D.3d 975,39 N.Y.S.3d 512 [2d Dept. 2016]; Brothers v. Bartling, 130 A.D.3d 554, 13 N.Y.S.3d 202 [2d Dept. 2015](assertion of a "sudden stop" is insufficient to provide a non-negligent explanation); LeGrand v. Silberstein, 123 A.D.3d 773, 999 N.Y.S.2d 96 [2d Dept. 2014]; Gutierrez v. Trillium USA, LLC, 111 A.D.3d 669, 974 N.Y.S.2d 563 [2d Dept. 2013]; Volpe v. Limoncelli, supra at 795-796, 902 N.Y.S.2d 152 [2d Dept 2010], quoting Shamah v. Richmond County Ambulance Serv., 279 A.D.2d 564, 565, 719 N.Y.S.2d 287 [2d Dept 2001] Animah v. Agyei, 63 Misc.3d 783, 97 N.Y.S.3d 440 [Bronx Cty. 2019]). If the operator of the rear vehicle cannot come forward with evidence to rebut the inference of negligence, then the plaintiff is entitled to summary judgment (Gibson v Levine, 95 A.D.3d 1071, 944 N.Y.S.2d 6 10 [2d Dept 2012]; Kimyagarov v. Nixon Taxi Corp., 45 A.D.3d 736, 846 N.Y.S.2d 309 [2d Dept 2007]). A plaintiff may obtain partial summary judgment on the issue of liability without demonstrating the absence of his or her own comparative fault (Rodriguez v. City of New York, 31 N.Y.3d 312, 76 N.Y.S.3d 898 [2018]; Poon v. Nisanov, 162 A.D.3d 804, 79 N.Y.S.3d 227 [2d Dept 2018]; Edgerton v. City of New York, 160 A.D.3d 809, 74 N.Y.S.3d 617 [2d Dept 2018]).
Plaintiffs argue that their motion for summary judgment should be granted as there are no issues of fact in this hit in the rear accident case. Plaintiffs further argue that they are entitled to summary judgment pursuant to the doctrines of collateral estoppel and res judicata. Plaintiffs assert that the issue of liability was decided in the first action against the Simpson defendants and thus, the same result is warranted here.
Collateral estoppel precludes a party from relitigating an issue which has been previously decided against that party, or those in privity with that party, in a prior action or proceeding where the party had a full and fair opportunity to litigate such issue (Ryan v. New York Telephone Co., 62 N.Y.2d 494, 500, 478 N.Y.S.2d 823, [1984]; Luscher v. Arrua, 21 A.D.3d 1005, 1007, 801 N.Y.S.2d 379 [2d Dept 2005]). "The party seeking the benefit of the doctrine of collateral estoppel bears the burden of establishing that the identical issue was necessarily decided in the prior action, and the party to be estopped bears the burden of demonstrating the absence of a full and fair opportunity to contest the prior determination" (Leung v. Suffolk Plate Glass Co., Inc., 78 A.D.3d 663, 663-64, 911 N.Y.S.2d 376 [2d Dept. 2010]; see also SSJ Dev. Of Sheepshead Bay I, LLC v. Amalgamated Bank, 128 A.D.3d 674, 676,10 N.Y.S.3d 105 [2d Dept. 2015]). Under the doctrine of res judicata, a judgment on the merits by a court of competent jurisdiction is conclusive of the issues of fact and questions of law necessarily decided therein in any subsequent action involving the parties to a litigation and those in privity with them (Luscher v Arrua, 21 A.D.3d 1005, 1006, 801 N.Y.S.2d 379 [2d Dept 2005]).
In the prior decision, the court relied upon the affidavit of Nicholas Massa in finding there was a non-negligent explanation for the Massa vehicle hitting the Donnelly vehicle in the rear, that being, the Massa vehicle was hit in the rear by the Simpson vehicle, propelling it into the Donnelly vehicle. These facts were established in the first action. Defendants had an opportunity to refute the facts alleged, offer their own explanation for how the accident occurred, and raise an issue of fact, which they failed to do. Thus, the doctrines of collateral estoppel and res judicata bar defendants from relitigating issues previously resolved against them, that being their negligence in causing the subject accident (see, e.g., Lapierre v. Love, 100 A.D.3d 713, 954 N.Y.S.2d 154 [2d Dept. 2012]; Abselet v. Horn, 2014 N.Y. Slip Op. 31150, 2014 WL 1806462 [Sup. Ct. Suffolk Cty. 2014]; see also Madison Acquisition Group, LLC v. 7614 Fourth Real Estate Development, LLC, 134 A.D. 3d 683, 20 N.Y.S.3d 418 [2d Dept. 2015]; Discover Bank v. Qader, 105 A.D.3d 892, 962 N.Y.S.2d 911 [2d Dept 2013]). Notwithstanding, defendants have not offered a non-negligent explanation for the accident and thus, plaintiffs, in any event, are entitled to an award of summary judgment on the issue of liability (Lapierre v. Love, supra). Plaintiffs, however, are not entitled to an immediate trial on damages. On September 11, 2019, a preliminary conference stipulation with respect to discovery on damages was entered into between the attorneys for the parties. Stipulations are essentially agreements which are governed by general principles of contract law (see Daibes v. Kahn, 116 A.D.3d 994, 983 N.Y.S.2d 898 [2d Dept. 2014] and cases cited therein) and thus, are to be enforced according to their terms. Accordingly, the parties are directed to proceed with discovery on the issue of damages. The Court has considered the arguments raised by defendants and finds that they lack merit (Finney v. Morton, 127 A.D.3d 1134, 1134, 7 N.Y.S.3d 508 [2d Dept. 2015]).
Moreover, plaintiffs did not request this relief in their notice of motion and thus, are not entitled to same.
The foregoing constitutes the Decision and Order of this Court.