Opinion
No. EF003983-2019 Sequence No. 1
12-15-2020
MARYANN NIBLO, Plaintiff, v. DANIEL W. MADSEN and DUTCHESS OVERHEAD DOORS, LLC, Defendants.
Unpublished Opinion
DECISION AND ORDER
HON. SANDRA B. SCIORTINO, J.SC.
The following papers numbered 1 to 10 were considered in connection with the application of plaintiff for summary judgment on the issue of liability only:
PAPERS
NUMBERED
Notice of Motion (Seq. #1)/Affirmation (Delancey)/Exhibits 1 - 6
1 - 8
Affirmation in Opposition(Schultz)
Affirmation in Reply (Delancey)
Background and Procedural History
This personal injury action arises out of a motor vehicle accident that took place on September 26, 2016 on Pulaski Turnpike, at the intersection of Cross Road. Village of Goshen. Plaintiffs vehicle was struck by a vehicle operated by defendant Madsen and owned by defendant Dutchess Overhead Doors. LLC (hereinafter "Dutchess"). Plaintiff commenced this action by filing a Summons and Complaint (Exhibit 1) on or about May 17, 2019. Defendant served a Verified Answer with Affirmative Defenses and demands on or about July 5, 2019. (Exhibit 2) Plaintiff thereafter served a Verified Bill of Particulars dated July 31, 2019. (Exhibit 3)
The Examination Before Trial of plaintiff was held on January 6, 2020. (Exhibit 5 to moving papers) The Examination Before Trial of defendant was held on February 27, 2020. (Exhibit 6) Note of Issue has not been filed.
Plaintiffs Deposition Testimony
On September 26, 2016, plaintiff was traveling north on Pulaski Turnpike. Plaintiff slowed down as she approached a stop sign at the intersection with Cross Road and signaled to turn left Plaintiff came to a stop at the stop sign and allowed a truck to proceed through the intersection coming from the opposite direction. Before plaintiff was able to proceed, plaintiffs vehicle was struck in the rear by a vehicle operated by defendant Madsen.
Defendant's Deposition Testimony
Defendant was proceeding behind the plaintiff on Pulaski Turnpike. Defendant testified that, "all of a sudden, I realized that her vehicle was slowing down and I applied my brakes to slow down, and we hit." Defendant testified that at least ten seconds elapsed from the time he saw plaintiffs vehicle slowing down to the time the vehicles made contact. He did not see plaintiffs brake lights. nor did he see her turn signal prior to the impact.
Plaintiffs Motion for Partial Summary Judgment
By Notice of Motion filed on October 12, 2020, plaintiff moves for summary judgment on the issue of liability asserting that a rear-end collision establishes a prima facie case of negligence on the part of defendant.
Plaintiff argues that, based on the defendant's deposition testimony, defendant Madsen was aware of plaintiffs vehicle slowing down for at least ten seconds. The Vehicle & Traffic Law requires a driver to maintain a safe distance between his vehicle and the vehicle in front of him. (McKinney's Veh. & Traffic Law §1129) Defendants have failed to offer a non-negligent explanation, and defendants' purported non-negligent explanation, that Madsen did not observe plaintiffs brake lights or turn signal, is insufficient to raise a triable issue of fact.
Opposition
In opposition to plaintiffs motion, defendants argue that there is a triable issue of fact as to whether plaintiffs actions caused or contributed to the motor vehicle collision. Defendant Madsen testified that plaintiffs vehicle stopped suddenly and he did not observe any brake lights or left-hand turn signal that would indicate that the plaintiff was stopping. Therefore, defendants argue, a valid non-negligent explanation for the rear-end collision sufficient to deny a motion for summary judgment has been put forth.
Plaintiffs Reply
In reply, plaintiff essentially argues that defendants have failed to raise a triable issue of fact precluding summary judgment on the issue of liability for violating Vehicle and Traffic Law Section 1129(a).
Discussion
For the reasons which follow, plaintiffs motion is granted.
Summary judgment is a drastic remedy and is appropriate only when there is a clear demonstration of the absence of any triable issue of fact. (Piccirillo v. Piccirillo, 156 A.D.2d 748 [2d Dept 1989], citing Andre v. Pomeroy, 35 N.Y.2d 361 [1974]) The function of the Court on such a motion is issue finding, and not issue determination. (Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395 [1957]) The Court is not to engage in the weighing of evidence; rather, the Court's function is to determine whether "by no rational process could the trier of facts find for the non-moving party." (Jastrzebski v. N. Shore Sch. Dist., 232 A.D.2d 677, 678 [2d Dept 1996]) The Court is obliged to draw all reasonable inferences in favor of the non-moving party. (Rizzo v. Lincoln Diner Corp., 215 A.D.2d 546 [2d Dept 1995])
A rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the driver of the moving vehicle, in the absence of any negligence on the part of the plaintiff. (Velazquez v. Denton Limo, Inc., 7 A.D.3d 787 [2d Dept 2004]; Trombetta v. Cathone, 59 A.D.3d 526 [2d Dept 2009]) A driver of an automobile is charged with the duty to maintain a reasonably sale rate of speed and control over his vehicle and to exercise reasonable care to avoid a collision. A driver has a duty to see what should be seen. (Filippazzo v. Santiago, 277 A.D.2d 419 [2d Dept 2000]) Vehicle and Traffic Law Section 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 conditions of the highway.
In the matter at bar, plaintiff established prima facie entitlement to summary judgment. The parties' deposition testimony establishes that plaintiffs vehicle was struck from behind by defendant's vehicle. Such testimony is sufficient to establish plaintiffs claim. Such a showing requires defendant to come forward with a non-negligent explanation for the accident. (Velazquez, citing Shaman v. Richmond County Ambulance Serv., 279 A.D.2d 564 [2d Dept 2001]) If the operator of the trailing vehicle cannot come forward with evidence to rebut the inference of negligence, the operator of the lead vehicle is entitled to summary judgment on liability. (Cortes v. Whelm, 83 A.D.3d 763 [2d Dept 2011])
Here, defendants' testimony that there was a sudden stop by plaintiffs vehicle and Madsen did not observe plaintiffs brake lights or turn signal is insufficient to rebut the prima facie showing. (Trombetta, 59 A.D.3d at 527; Lampkin v. Chan, 68 A.D.3d 727 [2d Dept 2009]) Defendants' opposition has failed to rebut the inference of negligence by providing a non-negligent explanation for the collision. (Cortes, 83 A.D.3d at 763)
Conclusion
On the basis of the foregoing, it is
ORDERED that plaintiffs application for partial summary judgment on liability is granted.
The parties shall appear for a virtual conference on February 9, 2021 at 9:30 a.m. A Microsoft Teams link will be provided prior to the conference.
This decision shall constitute the order of the Court.