Opinion
99 Civ. 6085 (TPG)
November 14, 2001
OPINION
This is a personal injury action arising out of a collision involving three vehicles. It was removed from Supreme Court, Bronx County. Plaintiff Moskovitz sued the other two drivers, defendants Slater and Dean. Both Slater and Dean have filed cross-claims against the other.
Slater, the driver of the middle vehicle, moves for summary judgment as to plaintiffs complaint and as to the cross-claim of co-defendant Dean. Although initially plaintiff opposed the motion, at oral argument plaintiff withdrew his opposition to the motion and his claim against Slater. This leaves for decision the motion by Slater to dismiss Dean's cross-claim. The motion is granted.
Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED. R. Civ. P. 56(c). All ambiguities must be resolved and all inferences must be drawn in favor of the nonmoving party. Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997). The nonmoving party raises a genuine issue of fact "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A litigant may not defeat a motion for summary judgment solely through "unsupported assertions" or conjecture. Goenaga v. March of Dimes Birth Defects Fund, 51 F.3d 14, 18 (2d Cir. 1995).
A rear-end collision with a stopped vehicle creates a presumption of liability with respect to the operator of the rearmost vehicle, imposing a duty of explanation on that operator to excuse the collision either through a mechanical failure, a sudden stop of the vehicle ahead, an unavoidable skidding on a wet pavement, or any other reasonable cause.Filoppazzo v. Santiago, 277 A.D.2d 419, 716 N.Y.S.2d 710, 711 (2d Dep't 2000); Leal v. Wolff, 224 A.D.2d 392, 638 N.Y.S.2d 110, 111 (2d Dep't 1996). The operator of the moving vehicle is required to rebut the inference of negligence created by an unexplained rear-end collision because he or she is in the best position to explain whether the collision was due to a sudden stop of the vehicle ahead, or some other reasonable cause. Leal v. Wolff, 638 N.Y.S.2d at 111; Power v. Hupart, 260 A.D.2d 458, 688 N.Y.S.2d 194, 195 (2d Dep't 1999). The driver of a stopped vehicle has no such presumption of negligence against him even though his vehicle may in turn hit another stopped vehicle. Leal v. Wolff, supra. Conclusory allegations of a sudden and unexpected stop are insufficient to rebut the inference of negligence created by the unexplained rear-end collision. Id., at 112; Levine v. Taylor, 268 A.D.2d 566, 702 N.Y.S.2d 107, 108 (2d Dept 2000). New York law imposes a duty on a driver of a motor vehicle to follow other vehicles at a "reasonable and prudent" distance. N Y Vehicle and Traffic Law § 1129(a) provides:
The 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.
Slater, in his summary judgment motion, asserts that he, being the middle driver, had no fault, and the sole party at fault was Dean, who ran into Slater's car, propelling that car into plaintiffs vehicle. Under the applicable law a presumption of negligence is raised against Dean since his moving vehicle struck Slater's stopped car. Dean argues that the presumption is overcome to a sufficient degree as to raise a triable issue of fact. In this regard he makes two contentions: first, that Slater came to such a sudden stop that Dean's van could not avoid hitting Slater's car; second, that Slater came too close to plaintiffs vehicle, thus increasing the risk that a mishap would push the Slater car into plaintiffs.
In respect to the contention of a sudden stop by Slater, the sole evidence of this occurred in Dean's deposition. It is undisputed that prior the collision, traffic was "stop and go." Dean testified that the vehicle ahead of him stopped several times. With respect to the stop immediately before the impact, counsel asked Dean how long Slater's vehicle was stopped before that impact. Dean said he did not know. Then there was the following testimony:
Q: Did it stop suddenly before the impact or was it a gradual stop?
A: You're talking about just before the accident itself?
Q: Yes.
A: It was sudden.
Q: A sudden stop?
A: Yes.
Thus, the concept of a sudden stop came from the words of the attorney and not from Dean. Dean had previously been asked how far he was from Slater's vehicle the last time the vehicles stopped before impact and Dean said it was more than one car length. Dean could not distinguish this stop from others that occurred that day in the stop and go traffic and he did not explain why a distance of a car length was not sufficient for him, if he was careful, to come to a stop without hitting Slater's vehicle. Dean did not know the speed his vehicle was traveling prior to impact. Therefore, Dean's contention about a sudden stop by Slater is insufficient to rebut the presumption of Dean's negligence or to raise a triable issue of fact.
In respect to the contention that Slater stopped too close to plaintiffs vehicle depends entirely on plaintiffs deposition testimony. Plaintiff estimated the distance was three feet, but he really did not know. Plaintiff did not claim to have seen Slater's vehicle. In any event, plaintiff has withdrawn his opposition to Slater's motion and his claim against Slater. The evidence establishes that both plaintiff and Slater were able to bring their respective vehicles safely to a stop prior to the collision. Accordingly, the contention that Slater failed to keep a reasonable and prudent distance and that this contributed to plaintiffs injuries is speculative and insufficient to create a triable issue of fact.
Conclusion
For the above reasons, Slater's motion for summary judgment dismissing Dean's cross-claim is granted.