Opinion
Index No. 26611/2018E
09-29-2020
Unpublished Opinion
The following papers numbered 1 to __ Read on th is motion.
Noticed on and duly submitted as No on the Motion Calendar of AUGUST 20, 2020.
PAPERS NUMBERED
Notice of Motion - Order to Show Cause - Exhibit s and Affidavits Annexed
Answering Affidavit and Exhibits
Replying Affidavit and Exhibits
________Affidavit and Exhibits
Pleadings - Exhibit
Stipulation (s) - Referee's Report - Minutes
Filed Papers
Memoranda of Law
Upon the foregoing papers this motion is decided in accordance with the annexed memorandum decision.
DECISION/ORDER
HON. Ben R. Barbato, Justice.
Plaintiff s motion pursuant to CPLR 3212, for summary judgment on the issue ol liability' and for dismissal of defendants' affirmative defense as to plaintiff s culpable conduct, is granted.
Plaintiff commenced the instant action to recover for injuries he allegedly sustained in a motor vehicle accident that occurred on December 7. 2017 on the Northbound Major Deegan Expressway at its intersection with Lincoln Avenue. Bronx. NY. Plaintiff now seeks summary judgment on the basis that his vehicle was struck in the rear by a vehicle owned and operated by the defendants. In support of his motion plaintiff submitted the pleadings, police report, incident report and the transcript of plaintiffs and defendant's deposition testimony.
"A rear-end collision with a stationary vehicle creates a prima facie case of negligence requiring judgment in favor of the stationary vehicle unless defendant proffers a non-negligent explanation for the failure to maintain a safe distance ... A driver is expected to drive at a sufficiently safe speed and to maintain enough distance between himself [or herself] and cars ahead of him [or her] so as to avoid collisions with stopped vehicles, taking into account weather and road conditions" (LaMasa v Bachman, 56 A.D.3d 340. 340 [1st Dept 2008]). A rear-end collision constitutes a prima facie case of negligence against the rearmost driver in a chain confronted with a stopped or stopping the vehicle (see Cabrera v Rodriguez, 72 A.D.3d 553 [1st Dept 2010]).
Vehicle and Traffic Law § 1129(a) states that a "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" (see Darmento v Pacific Molasses Co.. 81 N.Y.2d 985. 988 [1993]). Based on the plain language of the statute, a violation is evident when a driver follows another too closely without adequate reason and that conduct results in a collision (see id.).
In opposition to plaintiff s prima facie showing of entitlement to judgment as a matter of law on the issue of defendants' liability, defendants failed to raise triable issues of fact. In opposition to plaintiffs prima facie showing, defendant asserts that there is a question of fact as to whether they were faced with an emergency situation (see Rivera v New York City Transit Auth., 77 N.Y.2d 322. 327 [1991]). The emergency doctrine, however, is not available where the circumstances are of the defendant's making (see Caristo v Sanzone, 96 N.Y.2d 172 [2001]). A driver who follows another vehicle too closely may not invoke the emergency doctrine (see Herbert v Morgan Drive-A-Way, 202 A.D.2d 886 [3rd Dept 1994] [Yesawich. .1., dissenting], revd for the reasons stated by the dissent at the Appellate Division 85 N.Y.2d 895 [1995]). ''[B]ecause trailing drivers arc required to leave a reasonable distance between their vehicles and vehicles ahead of them ... [a] trailing driver's conduct in failing to leave reasonable distance creates the possibility that a sudden stop will be necessary" (Shehab v Powers, 150 A.D.3d 918, 920 [2d Dept 2017]). Given defendants' testimony that they were following the vehicle in front of them at a distance of at least two car length, the sudden stop of the vehicle in front of them vehicle did not constitute an emergency not of their making (see Vehicle and Traffic Law § 1129[a]; Matias v Grose, 123 A.D.3d 485 [1st Dept 2014]).
Defendants thus failed to rebut the presumption of their negligence (see Dattilo v Best Transp. Inc., 79 A.D.3d 432 [1st Dept 2010]; see also Buchanan v Keller, 169 A.D.3d 989, 992 [2d Dept 2019]; Little v Morillo. 168 A.D.3d 433 [1st Dept 2019]; Vasquez v Chimborazo, 1 55 A.D.3d 432 11st Dept 2017]; Torres v Kalmar, 136 A.D.3d 457 [1st Dept 2016]).
In addition, defendants' contention that plaintiff failed to meet his prima facie burden because the deposition transcripts are not signed and are unsworn has no merit, as the transcripts are certified by the Court Reporter. (Gomez v Shop-Rite of New Greenway, 110 A.D.3d 483 [1st Dept. 2013] [appropriate to rely on unsigned, certified deposition transcript where transcript was not challenged as inaccurate]); Pevzner v 1397 E. 2nd, LLC, 96 A.D.3d 921 [2d Dept. 2012] ["Supreme Court providently reviewed the unsworn deposition transcripts submitted in support of the motion, since they were certified by the reporters and the plaintiffs did not challenge their accuracy']).
As to the aspect of plaintiff motion seeking dismissal of defendants' affirmative defense of culpable conduct, plaintiff made a prima facie showing that he bears no such fault (see Soto-Maroquin v Mellet, 63 A.D.3d 449 [1st Dept 2009]), and defendants failed to raise a triable issue of fact.
Accordingly, plaintiffs motion for summary judgment on the issue of liability is granted.
Plaintiff shall serve a copy of this order, together with notice of entry, on the defendants within 30 days of the date of entry of this order.
This constitutes the decision and order of the Court.