Opinion
Index No. 618336/2019 Mot. Seq. No. 001 MotD
05-08-2020
LENIN A. MEJIA, and ELLEN J. MAZARIEGOS, Plaintiffs, v. MARY A. TAYLOR, and BRIAN C. TAYLOR, Defendants.
PLTFS' ATTORNEY: ARIEL AMINOV, PLLC PLTF'S ATTORNEY FOR MEJIA ON THE COUNTERCLAIM: JENNIFER S. ADAMS, ESQ. DEFTS' ATTORNEY: RUSSO &TONER, LLP
Unpublished Opinion
ORIG. RETURN DATE: JANUARY 22, 2020
FINAL RETURN DATE: FEBRUARY 13, 2020
PLTFS' ATTORNEY: ARIEL AMINOV, PLLC
PLTF'S ATTORNEY FOR MEJIA ON THE COUNTERCLAIM: JENNIFER S. ADAMS, ESQ.
DEFTS' ATTORNEY: RUSSO &TONER, LLP
PRESENT: HON. PAUL J. BAISLEY, JR., J.S.C.
SHORT FORM ORDER
Paul J. Baisley Jr., Judge
Upon the following papers read on this e-fi led motion for summary judgment: Notice of Motion/ Order to Show Cause and supporting papers filed by plaintiff, on December 16,2019; Notice of Cross Motion and supporting papers; Answering Affidavits and supporting papers filed by plaintiff Lenin A. Mejia on the counterclaim, on January 3,2010; filed by defendants, on January 28, 2010; Replying Affidavits and supporting papers filed by plaintiffs, on February 7, 2020; Other; (and after hearing counsel in support and opposed to the motion) it is,
ORDERED that the motion, by plaintiffs Lenin A. Mejia and Ellen J. Mazariegos for partial summary judgment on the issue of liability, and to dismiss all affirmative defenses and cross claims as to contributory and comparative negligence is granted in part and denied in part; and it is further
ORDERED that the parties shall appear for a preliminary conference on September 17, 2020 at 10:00 a.m. at the DCM-J Part of the Supreme Court, One Court Street, Riverhead, New York.
This is an action to recover damages for injuries allegedly sustained by plaintiffs Lenin A. Mejia and Ellen J. Mazariegos as a result of a motor vehicle accident, which occurred on April 1, 2019, on Park Avenue, near its intersection with Brennan Street, in Hungtington, New York. The accident allegedly occurred when a vehicle owned by defendant Brian C. Taylor and operated by defendant Mary A. Taylor struck plaintiffs' vehicle in the rear.
Plaintiffs now move for summary judgment in their favor on the issue of liability, and to dismiss all affirmative defenses and counterclaims of contributory and comparative negligence. Plaintiffs argue that defendant driver's negligence was the sole proximate cause of the accident. Plaintiffs argue that defendant driver violated, inter alia, Vehicle and Traffic Law § 1129 (a) by following too closely. In support of their motion, plaintiffs submit, among other things, their affidavits and the certified police report. Defendants oppose the motion, arguing that plaintiffs" vehicle suddenly and without warning struck another vehicle in the rear, causing defendant driver to strike plaintiffs' vehicle in the rear, as plaintiffs' vehicle came to a sudden stop.
The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law by tendering evidence in admissible form sufficient to eliminate any material issues of fact from the case (see Alvarez v Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923 [1986]; Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 87 N.Y.S.2d 316 [1985]). The moving party has the initial burden of proving entitlement to summary judgment (id.). Once the moving party demonstrates a prima facie entitlement to judgment as a matter of law, the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action (see Vega v Restani Constr. Corp., 18 N.Y.3d 499, 942 N.Y.S.2d 13 [2012]; Alvarez v Prospect Hosp., supra; Zuckerman v City of New York, 49 N.Y.2d 557; 427 N.Y.S.2d 595 [1980]; see also CPLR 3212 [b]). The failure to make such showing requires a denial of the motion, regardless of the sufficiency of the opposing papers (see Winegrad v New York Univ. Med. Ctr., supra). In deciding the motion, the Court must view all evidence in the light most favorable to the nonmoving party (see New York City Asbestos Litig. v Chevron Corp., 33 N.Y.3d 20, 99 N.Y.S.3d 734 [2019]; Stonehill Capital Mgt., LLC v Bank of the West, 28 N.Y.3d 439, 45 N.Y.S.3d 864 [2016]).
The driver of a vehicle approaching another vehicle from the rear must maintain a reasonably safe distance and rate of speed and control over his or her vehicle, under the prevailing traffic conditions and exercise reasonable care to avoid colliding with the other vehicle (see Xin Fang Xia v Saft, 177 A.D.3d 823, 113 N.Y.S.3d 249 [2d Dept 2019]; Bloechle v Heritage Catering, Ltd., 172 A.D.3d 1294. 101 N.Y.S.3d 424 [2d Dept 2019]; Schmertzler v Lease Plan U.S.A., Inc., 137 A.D.3d 1101,27 N.Y.S.3d 648 [2d Dept 2016]). 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, and requires the operator of the rear vehicle to rebut the inference of negligence by providing a nonnegligent explanation for the collision (see Samouhi v Retamales, 180 A.D.3d 1099, 120 N.Y.S.3d 69 [2d Dept 2020]; Clements v Giatas, 178 A.D.3d 894, 112 N.Y.S.3d 539 [2d Dept 2019]; Xin Fang Xia v Saft, supra; Edgerton v City of New York, 160 A.D.3d 809, 74 N.Y.S.3d 617 [2d Dept 2018]). A nonnegligent explanation may include evidence of a mechanical failure, a sudden, unexplained stop of the lead vehicle, an unavoidable skidding on wet pavement, or any other reasonable cause (see Clements v Giatas, supra; Grant v Carrasco, 165 A.D.3d 631, 84 N.Y.S.3d 235 [2d Dept 2018]; Binkowitz v Kolb, 135 A.D.3d 884, 24 N.Y.S.3d 186 [2d Dept 2016]). However, a driver who follows another vehicle must anticipate that the lead vehicle may stop, even suddenly, based on prevailing traffic conditions (see Xin Fang Xia v Safi, supra; Catanzaro v Edery, 172 A.D.3d 995, 101 N.Y.S.3d 170 [2d Dept 2019]; Buchanan v Keller, 169 A.D.3d 989, 95 N.Y.S.3d 252 [2d Dept 2019]).
To establish prima facie entitlement to judgment as a matter of law on the issue of liability, a plaintiff is no longer required to show freedom from comparative fault (Rodriguez v City of New York, 31 N.Y.3d 312, 76 N.Y.S.3d 898 [2018]; Simon v Rent-A-Center E., Inc., 180 A.D.3d 1100, 2020 NY Slip Op 01379 [2d Dept 2020]; Bloechle v Heritage Catering, Ltd., supra; Catanzaro v Edery, supra; Marks v Rieckhoff, 172 A.D.3d 847, 101 N.Y.S.3d 63 [2d Dept 2019]; Auguste v Jeter, 167 A.D.3d 560, 560, 88 N.Y.S.3d 509 [2d Dept 2018]). The issue of a plaintiffs comparative negligence may, however, be decided in the context of a summary judgment motion if the plaintiff moves for summary judgment dismissing a defendant's affirmative defense of comparative negligence (Poon v Nisanov, 162 A.D.3d 804, 79 N.Y.S.3d 227 [2d Dept 2018]).
Plaintiffs have established prima facie entitlement to judgment as a matter of the law on the issue of defendant driver's negligence (see Rosenblum v Schloss, 175 A.D.3d 1339. 105 N.Y.S.3d 894 [2d Dept 2019]; Montalvo v Cedeno, 170 A.D.3d 1166, 96 N.Y.S.3d 638 [2d Dept 2019]; Auguste v Jeter, supra). Plaintiffs submit the affidavit of driver Lenin A. Mejia and passenger Ellen J. Mazariegos. Mejia states in his affidavit that he was the seat-belted driver of his vehicle, and that he was driving northbound on Park Avenue on April 1,2019, at approximately 3:45 p.m. Mejia states that as he approached the intersection with Brennan Street, he observed the car in front of him slowing down to a stop to make a left turn. Mejia states that he brought his vehicle to a slow, gradual stop, and that he was stopped for approximately five to ten seconds, when he was struck in the rear by defendants' vehicle. Further, Mazariegos states that she was the seat-belted front-seat passenger of Meija's vehicle at the time of the accident. She states that as the vehicle was proceeding northbound on Park Avenue, she observed the car in front of them slow down, illuminate its left turn signal, and stop at the intersection of Brennan Street. She states that Mejia brought their vehicle to a slow, graduate and complete stop behind that vehicle, when their vehicle was struck in the rear by defendants' vehicle.
The burden now shifts to defendants to raise a triable issue of fact as to whether there was a non-negligent explanation for the accident (see Alvarez v Prospect Hosp., supra). Defendants submit the affirmation of Mary A. Taylor, who states that she was driving nothbound on Park Avenue at the time of the accident. She states that she was following behind plaintiffs' vehicle when she heard it come into contact with the vehicle in front of it and observed it to suddenly stop. She states that following the impact, she attempted to apply her brakes to avoid contact with plaintiffs' vehicle, but that she was unable to stop in time, and she hit plaintiffs' vehicle in the rear. However, in the absence of any evidence that the defendant driver was maintaining a reasonably safe distance and speed behind plaintiffs' vehicle as required by Vehicle and Traffic Law § 1129 (a), her claim that the plaintiffs' vehicle came to a sudden stop was insufficient to raise a triable issue of fact as to whether there was a non-negligent explanation for the collision (see Hackney v Monge, 103 A.D.3d 844, 960 N.Y.S.2d 176 [2d Dept 2013]; Taing v Drewery, 100 A.D.3d 740, 954 N.Y.S.2d 175 [2d Dept 2012]).
Further, plaintiff s motion was not premature, as defendants failed to offer any evidentiary basis to suggest that discovery may lead to relevant evidence, or that facts essential to opposing the motion were exclusively within the knowledge and control of plaintiff (see CPLR 3212[f]; Romain v City of New York, 177 A.D.3d 590, 112 N.Y.S.3d 162 [2d Dept 2019]; Harrinarain v Sisters of St. Joseph, 173 A.D.3d 983, 104 N.Y.S.3d 661 [2d Dept 2019]; Kerolle v Nicholson, 172 A.D.3d 1187, 101 N.Y.S.3d 387 [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 plaintiffs motion (see Batashvili v Veliz-Palacios, 170 A.D.3d 791,96 N.Y.S.3d 146 [2d Dept 2019]; Figueroa v MTLR Corp., 157 A.D.3d 861, 69 N.Y.S.3d 359 [2d Dept 2018]; Niyazov v Hunter EMS, 154 A.D.3d 954, 63 N.Y.S.3d 457 [2d Dept 2017]).
With respect to the branch of plaintiffs' motion seeking to dismiss all affirmative defenses and cross claims as to comparative and contributory negligence on the part of plaintiff, when moving to dismiss an affirmative defense, the plaintiff bears the burden of demonstrating that the affirmative defense is without merit as a matter of law (see Bank of N.Y. v Penalver, 125 A.D.3d 796, 797, 1 N.Y.S.3d 825 [2d Dept 2015]; South Point, Inc. v Redman, 94 A.D.3d 1086, 1087, 943 N.Y.S.2d 543 [2d Dept 2012]). "In reviewing a motion to dismiss an affirmative defense, the court must liberally construe the pleadings in favor of the party asserting the defense and give that party the benefit of every reasonable inference . . . [and] if there is any doubt as to the availability of a defense, it should not be dismissed" (Fireman's Fund Ins. Co. v Farrell, 57 A.D.3d 721, 723, 869 N.Y.S.2d 597 [2d Dept 2008]; see Greco v Christoffersen, 70 A.D.3d 769, 896 N.Y.S.2d 363 [2d Dept 2010]). Plaintiffs have established prima facie entitlement to the relief requested by submitting evidence that plaintiffs' vehicle was completely stopped in traffic when they were struck from behind by defendant driver. However, defendants have raised a triable issue of fact with respect to plaintiffs' comparative negligence. Defendants submit the affidavit of defendant driver, who states that plaintiffs' vehicle was involved in a sudden accident, which raises questions of fact that cannot be decided on a motion for summary judgment. As such, plaintiffs' motion to dismiss all affirmative defenses and cross claims as to plaintiffs' comparative or contributory negligence is denied.
Accordingly, the motion by plaintiffs for partial summary judgment on the issue of liability is granted, and the motion by plaintiffs to dismiss all affirmative defenses and cross claims of comparative or contributory negligence is denied.