Opinion
INDEX NO. 008394/2019
04-23-2020
DAVID MOLTRUP, Plaintiff, v. LINDA JOYCE REID and JOHN R. CRUSENBURY Defendants
APPEARANCES: AARON M. ZIMMERMAN, ESQ., OF THE LEGAL TEAM For Plaintiff KRISTIN L. NORFLEET, ESQ., OF SMITH, SOVIK, KENDRICK & SUGNET, P.C. For Defendant
NYSCEF DOC. NO. 86 At a Motion Term of the Supreme Court of the State of New York, held in and for the County of Onondaga on March 19, 2020. PRESENT: HON. JOSEPH E. LAMENDOLA Supreme Court Justice
DECISION AND ORDER ON MOTION
RJI No.: 33-19-
APPEARANCES:
AARON M. ZIMMERMAN, ESQ., OF THE LEGAL TEAM
For Plaintiff KRISTIN L. NORFLEET, ESQ., OF SMITH, SOVIK, KENDRICK & SUGNET, P.C.
For Defendant
Plaintiff David Moltrup brings this motion for summary judgment on the issue of liability only, and the Defendant has cross-moved for summary judgment based on the emergency doctrine.
This action was commenced by the e-filing of a Summons and Complaint on September 13, 2019. The action alleges that the Defendant caused personal injury and property damage as a result of a motor vehicle accident that occurred on May 21, 2018 in Clay, New York. The injuries and damages are alleged to have been caused when the Defendant's vehicle struck the rear of Plaintiff's vehicle while travelling southbound on Interstate 481.
In support of the Plaintiff's motion, Counsel submitted his own Affirmation but did not submit an Affidavit of the Plaintiff, nor did he attach to his Affidavit a copy of the pleadings. See CPLR §3212(b). Instead, Plaintiff's Counsel in his Affirmation incorporates the Complaint by reference to the filing on the New York State Courts Electronic Filing system (hereinafter "NYSCEF"). See Zimmerman Affirmation, paragraph 2. Likewise, in paragraph 7 of his affirmation Plaintiff's counsel also references a list of documents/evidence that he had submitted in support of a previous motion that he had made for a default judgment. They are listed on NYSCEF as documents 2, 23, 25 and 31. That motion was denied by the Hon. Anthony J. Paris, J.S.C., before whom the case was previously assigned. While Defense Counsel has objected to the Court considering those documents since Plaintiff's counsel did not append them specifically to this motion, the Court has elected to consider all pleadings and documents which the Plaintiff incorporated by reference.
In opposition to the Plaintiff's motion and in support of the Defendant's cross-motion, Defense Counsel submits her own Affirmation, with exhibits attached thereto. Of note, Exhibit H is an affidavit of the Defendant in support of her motion.
To date no discovery, including depositions, have been completed.
Among the evidence submitted by the Plaintiff is a dash-cam video from his vehicle. The Plaintiff had two cameras installed, one facing the front and the other facing the rear. The video provides the date, time (to the second) and speed of the car.
The front camera shows the Plaintiff proceeding down the interstate in the left (passing) driving lane. There are vehicles in front of him and in the right-hand lane that he passes. The Plaintiff accelerates his vehicle to a speed of 77 m.p.h. in a posted 65 m.p.h. zone, at which point he is travelling approximately four car lengths behind the vehicle in front of him. That vehicle suddenly and unexpectedly begins to brake, coming to a complete stop mostly on the left shoulder of the road. The Plaintiff in response also suddenly brakes and stops his car, ending up in a position in which it appears that he is actually partially next to the vehicle that was in front of him, occupying the same lane. The Plaintiff and the vehicle in front of him did not come in contact with each other, since the other driver pulled over onto the left shoulder.
The rear camera shows the Defendant driving directly behind the Plaintiff. When the Plaintiff suddenly applies his brakes to stop, the Defendant also brakes, but not in a time/manner sufficient to prevent her from striking the Plaintiff.
The video further shows the reason that the vehicles came to a sudden stop. A vehicle three cars ahead of the Plaintiff braked so that it could turn left into a U-turn. That U-turn is marked with the standard sign that forbids U-turns. It appears that vehicle was making an illegal U-turn. The vehicle suddenly braking from the passing lane of an Interstate to the point that it was able make a 90 degree left turn and then come to a stop in the U-turn caused a chain-reaction with all the cars following which led to this accident.
It is well established in New York law that the party moving for summary judgment must affirmatively demonstrate the merits of its cause of action or defense and establish a prima facie case, regardless of the sufficiency of the opposing papers. See, Edwards v. Arlington Mall Associates, 6 AD3d 1136 (4th Dept. 2004), Bagshaw v. Network Services Management Inc., 4 AD3d 831 (4th Dept. 2004), Alvarez v. Prospect Hospital, 68 NY2d 320 (1986).
In other words, until the movant establishes its entitlement to judgment as a matter of law, the burden will not shift to the opposing party to raise an issue of fact. Loveless v. American Ref-Fuel Company of Niagara, L.P., 299 AD2d 819 (4th Dept 2002). However, once the moving party establishes its entitlement to summary judgment through the tender of admissible evidence, the burden shifts to the non-moving party to raise an issue of fact. Smalls v. AJI Industy, Inc. 10 NY3d 733 (2008), Hunt v. Kostarellis, 27 AD3d 1178 (4th Dept 2006).
Additionally, a rear-end collision does not, under New York law, mean that a plaintiff is always entitled, ipso facto, to summary judgment. " 'It is well settled that a rear-end collision with a stopped vehicle establishes a prima facie case of negligence on the part of the driver of the rear vehicle . . . In order to rebut the presumption [of negligence], the driver of the rear vehicle must submit a nonnegligent explanation for the collision . . . One of several nonnegligent explanations for a rear-end collision is a sudden stop of the lead vehicle . . . , and such an explanation is sufficient to overcome the inference of negligence and preclude an award of summary judgment' ( Tate v Brown , 125 AD3d 1397, 1398, 3 NYS3d 826 [4th Dept 2015] [internal quotation marks omitted]; see Brooks v High St . Professional Blds., Inc., 34 AD3d 1265, 1266, 825 NYS2d 330 [4th Dept 2006]; Chepel v Meyers , 306 AD2d 235, 237, 762 NYS2d 95 [2d Dept 2003])." Macri v. Kotrys, 164 AD3d 1642, 1643, 84 NYS3d 293 (4th Dept 2018).
In this case the evidence submitted conclusively establishes that the Defendant struck the Plaintiff from behind, a fact that the Defendant does not deny. Therefore, the Plaintiff has met his initial burden in establishing his entitlement to summary judgment.
The burden then shifts to the Defendant to submit a nonnegligent explanation for the collision. The Defendant relies on the video submitted by the Plaintiff in this case as proof of that nonnegligent explanation, applying the emergency doctrine.
The Court of Appeals has established the definition of that doctrine in New York. " 'More than a century ago, this Court first considered the reasonableness of an actor's conduct when confronted with a sudden emergency situation (see, Wynn v Central Park , N. & E. Riv. R. R . Co., 133 NY 575). Since then, we have articulated and applied the common-law emergency doctrine which 'recognizes that when an actor is faced with a sudden and unexpected circumstance which leaves little or no time for thought, deliberation or consideration, or causes the actor to be reasonably so disturbed that the actor must make a speedy decision without weighing alternative courses of conduct, the actor may not be negligent if the actions taken are reasonable and prudent in the emergency context' ( Rivera v New York City Tr . Auth., 77 NY2d 322, 327), provided the actor has not created the emergency.'" Carista v. Sanzone, 96 NY2d 172 (2001).
The video in this case clearly and unequivocally raises a nonnegligent issue of fact as to whether or not the emergency doctrine should apply in this case. The "sudden and unexpected circumstance" of the Plaintiff going from 77 m.p.h. in the passing lane of an interstate to a complete stop, due to another car making an illegal U-turn, is a circumstance that was not created by the Defendant. Factual issues exist regarding whether or not both the Plaintiff's and the Defendant's speed, reaction time and following distance to the vehicles in front of them impacted this accident.
Additionally, because the Plaintiff has filed this motion prior to most discovery being completed, including depositions, the Court finds merit in the Defendant's argument that this motion is premature. CPLR §3212(f) specifically provides for the completion of discovery to allow the Defendant to develop facts to further oppose this motion. Given the video evidence in this case the Defendant's desire to complete discovery, especially depositions, is warranted not just to oppose the Plaintiff's motion but to further support her motion for summary judgment.
Those same questions of fact noted above are similarly the reason why the Defendant's cross-motion for summary judgment is also denied. While it appears from the video that both the Defendant and Plaintiff experienced a sudden and unexpected circumstance, that alone is not sufficient to warrant the granting of summary judgment to her at this stage of the litigation based on the emergency doctrine.
NOW, therefore, for the foregoing reasons, it is
ORDERED, that the Plaintiff's motion for summary judgment on the issue of liability is DENIED, and it is further
ORDERED, that the Defendant's cross-motion for summary judgment on the issue of liability is DENIED. Dated: April 23, 2020
Syracuse, New York
ENTER
/s/ _________
JOSEPH E. LAMENDOLA
Supreme Court Justice Papers Considered: 1. Affirmation of Plaintiff's Counsel with exhibits attached thereto, including the pleadings and documents incorporated therein by reference. 2. Plaintiff's Memorandum of Law. 3. Affirmation of Defendant's Counsel with exhibits attached thereto. 4. Affirmation of Plaintiff's Counsel in opposition to cross-motion. 5. Defense Counsel Reply Affirmation.