Opinion
Index No. 151029/2019 Motion Seq. No. 002
03-15-2024
SHATIERA R. MORALES, Plaintiff, v. BRIAN S. BEKIERS, LAURA L. ZAVECKAS, and DAVID J. ZAVECKAS, Defendants.
Unpublished Opinion
MOTION DATE 11/03/2021.
PRESENT; HON. JAMES G. CLYNES, Justice.
DECISION + ORDER ON MOTION
HON. JAMES G. CLYNES, Justice.
The following e-filed documents, listed by NYSCEF document number {Motion 002) 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 80 were read on this motion to/for JUDGMENT-SUMMARY.
In this personal injury action arising out of three-car motor vehicle accident, defendants Laura L. Zaveckas, and David J. Zaveckas (David) (together, the Zavcckases) move, pursuant to summary judgment dismissing the claims against them. Plaintiff Shatiera R. Morales and defendant Brian S. Bekiers (Bekiers) oppose.
Background
According to the complaint, the accident occurred between 3 p.m. and 4 p.m. on August 22, 2016 on the Cross Bronx Expressway/I-95 in New York County (NY St Cts Elec Filing [NYSCEF] Doc No, 42, Samantha L. Desousa [Desousa] affirmation, exhibit B, ¶¶ 24-29). Plaintiff testified that she had exited the George Washington Bridge and was traveling beneath an underpass towards the Cross Bronx Expressway when the accident occurred (NYSCEF Doc No. 46, Desousa affirmation, exhibit F, plaintiff tr at 13 and 18-20). She described the traffic conditions as "bumper-to-bumper" traffic (id. at 18). It was not raining or drizzling, and the roadway was dry (id. at 37). There was no construction taking place and there were no lane closures in the area (id. at 35). Plaintiff testified that she had been stopped for two minutes in the middle of three lanes for moving traffic (id. at 32), when she felt a single, hard impact to the rear of her vehicle (id. at 20). A van that had been stopped behind plaintiff in the same lane struck the rear bumper of her vehicle, with the van's hood coming to a rest under the trunk of her vehicle (id. at 21 and 24-25), Plaintiff denied hearing a honking horn or screeching tires before the impact. Plaintiff testified that when the driver of the third vehicle in the chain came to her window to ask if she was okay, "[h]e mentioned speeding; just going to fast" (id. at 33).
David testified that he was traveling from New Jersey to Long Island in stop-and-go traffic (NYSCEF Doc No. 49, Desousa affirmation, exhibit I, David tr at 8 and 11). He was not experiencing any mechanical difficulties with his vehicle that day (id. at 21). He could not recall which lane he was traveling in (id. at 9) but believed the accident occurred in the middle lane (id. at 24). David testified the accident occurred when a vehicle '"came from the right lane into my lane and abruptly stopped so forcing me to stop behind her" (id. at 12). He brought his vehicle to a full, complete stop five to six feet behind the lead vehicle (id. at 26) when he heard brakes screeching behind him (id. at 12). David glanced in the rearview mirror and saw a vehicle coming from behind (id. at 27). He stated the car "hit flush with the rear" of David's vehicle (id. at 16), and the impact propelled his vehicle forward into the vehicle in front of him (id. at 11).
Bekiers explained that the accident occurred in "bumper to bumper" and "jam packed" traffic after exiting the George Washington Bridge eastbound (NYSCEF Doc. No. 48, exhibit H, Bekiers tr at 10-11). The roadway beneath the overpass where the accident occurred was straight, flat, and dry (id. at 46). Bekiers could nol recall which lane he was traveling in (id. at 13), the speed at which he and other vehicles were traveling (id. at 28), the speed at which he was traveling when he first saw the vehicle directly in front of him (id. at 15), the distance separating them (id. at 15 and 43), and whether that vehicle was at a complete stop or was in the process of stopping when the accident occurred (id. at 28 and 35). Bekiers stated that the vehicle directly in front of him came to an abrupt stop, and though he tried to stop, his vehicle rearended that vehicle (id. at 14 and 17). He did not witness any contact between that vehicle and the lead vehicle (id. at 16).
The description of the accident in the Police Accident Report mirrors the parties' testimony that Bekiers struck the rear of David's vehicle before that vehicle came into contact with the rear of plaintiff s vehicle (NYSCEF Doc No. 41, Desousa affirmation, exhibit A at 1).
The Zaveckascs contend that the Police Accident Report is certified, but the report does not bear a certification (see Sanchez v Taveraz, 129 A.D.3d 506, 506 [1st Depl 2015J). No party, though, has raised an issue as to its admissibility.
Discussion
A party moving for summary judgment under CPLR 3212 "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of tact" (Alvarez v Prospect Hasp., 68 N.Y.2d 320, 324 [1986]). "This burden is a heavy one and on a motion for summary judgment, 'facts must be viewed in the light most favorable to the non-moving party'" (William J. Jenack Estate Appraisers & Auctioneers, Inc. v Rabizadeh, 22 N.Y.3d 470, 475 [2013] [citation omitted]). The moving party's "[f]ailure to make such prima facie showing requires a denial of the motion, regardtess of the sufficiency of the opposing papers" (Alvarez, 68 N.Y.2d at 324), If the moving party meets its prima facie burden, the burden shifts to the non-moving party to furnish evidence in admissible form sufficient to raise a material issue of fact (id).
It is well settled that "[w]hen approaching another vehicle from behind, drivers are required to maintain a reasonably safe rale of speed, maintain control over the vehicle, and use reasonable care to avoid a collision, by, among other things, including maintaining a safe distance" (Passos v MP A Bus Co., 129 A.D.3d 481, 481 [1st Dept 2015], citing Vehicle and Traffic Law § 1129 [a]). "The law is well established that a rear-end collision with a stopped vehicle, or with a vehicle that is coming to a stop, creates a prima facie case of negligence by the operator of the rear vehicle unless the operator proffers an adequate nonnegligcnt explanation for the accident" (Kalair v Fajerman, 202 A.D.3d 625, 626 [1st Dcpt 2022]). The rule applies "when the front vehicle stops suddenly in slow-moving traffic, even if the sudden stop is repetitive, when the front vehicle, although in stop-and-go traffic, stopped while crossing an intersection, and when the front car stopped after having changed lanes" (Johnson v Phillips, 261 A.D.2d 269, 271 [1st Dept 1999] [citations omitted]). The rule also applies to multi-car, rear end collisions where the presumption of liability rests with the rearmost driver (Cabrera v Thomas, 193 A.D.3d 406,407 [1st Dept 2021]).
Under these precepts, the Zaveckases have demonstrated their prima facie entitlement to summary judgment (Cabrera, 193 A.D.3d at 407; Butler v Petrova, 116 A.D.3d 580, 580 [1st Dept 2014]); Chang v Rodriguez, 57 A.D.3d 295, 295 [1st Dept 2008]). David's unrebutted, sworn testimony shows that he had brought his vehicle to a complete stop before the rear end impact from Bekiers' vehicle pushed David's vehicle into the rear bumper of plaintiff s vehicle, In response to the Zaveckases prima facie showing, Bekiers and plaintiff, who adopted Bekiers' arguments, fail to raise a triable issue of fact. Bekiers argues that David's sudden, unexplained stop caused the subject accident. However, "a 'claim by the rear driver that the lead vehicle made a sudden stop, standing alone, is insufficient to rebut the presumption of negligence'" (Ahmad v Behal, 221 A.D.3d 558, 559 [1st Dept 2023] [citation omitted]). Furthermore, "[a] driver is supposed to make reasonable use of his or her senses, drive at a safe rate of speed under existing conditions, and maintain a safe distance from other motor vehicles" (Miller v DeSouza, 165 A.D.3d 550, 550 [1st Dept 2018] [internal citations omitted]). Bekiers has failed to explain why he was unable to maintain a safe distance from David's vehicle, and therefore, he has not presented a nonnegligenl explanation for the accident (see Kalair, 202 A.D.3d at 626). Bekiers' argument that David contributed to the happening of the accident by failing to signal before coming to a stop is unpersuasive. Vehicle and Traffic Law § 1163 (c) provides that "[n]o person shall stop or suddenly decrease the speed of a vehicle without first giving an appropriate signal in the manner provided herein to the driver of any vehicle immediately to the rear when there is opportunity to give such signal." Here, neither Bekiers nor David testified that the brake lights on David's vehicle were not operating or had malfunctioned immediately before the accident (see Kapoor v Zahoor, 56 Misc.3d 135[A], 2017 NY Slip Op 50962[U], *2 [App Term, 2d Dept 2017] [triable issue of fact raised where the defendant testified that '"there were no brake lights on' plaintiffs vehicle" and the plaintiff did not know if the brake lights were operable and had not made a hand signal indicating he was stopping |).
Accordingly, it is
ORDERED that the motion of defendants Laura L. Zaveckas, and David J. Zaveckas for summary judgment dismissing the complaint is granted, and the complaint is dismissed against them; and it is further
ORDERED that the cross-claims against said defendants Laura L. Zaveckas, and David J. Zaveckas by defendant Brian S. Bekiers are dismissed; and it is further
ORDERED that the said claims and cross-claims against defendants Laura L. Zaveckas, and David J. Zaveckas are severed and the balance of the action shall continue; and it is further
ORDERED that the Clerk of the Court shall enter judgment in favor of defendants Laura L. Zaveckas, and David J. Zaveckas dismissing the claims and cross-claims made against them in this action; and it is further
ORDERED that the caption be amended to reflect the dismissal and that all future papers filed with the court bear the amended caption; and it is further
ORDERED that counsel for the moving party shall serve a copy of this order with notice of entry upon the Clerk of the Court and the Clerk of the General Clerk's Office, who are directed to mark the court's records to reflect the change in the caption herein; and it is further
ORDERED that such service upon the Clerk of the Court and the Clerk of the General Clerk's Office shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the "E-Filing" page on the court's website).
This constitutes the Decision and Order of the Court.