Opinion
Index 619040/2016
11-05-2018
RACHELLE OPMAN & JOHN OPMAN, Plaintiff, v. RONALD POLLIO, Defendant. Mot Seq No. 001 MG
PLAINTIFF'S COUNSEL: Parker Waichman, LLP By: Denny Tang, Esq. DEFENDANT'S COUNSEL: Russo & Tambasco By: Steven R. Kartzinel, Esq.
Unpublished Opinion
Motion Submit Date: 03/01/18
PLAINTIFF'S COUNSEL:
Parker Waichman, LLP
By: Denny Tang, Esq.
DEFENDANT'S COUNSEL:
Russo & Tambasco
By: Steven R. Kartzinel, Esq.
WILLIAM G. FORD, J.S.C.
On plaintiffs motion for partial summary judgment on liability pursuant to CPLR 3212. the following was considered: Notice of Motion & Affirmation in Support dated January 19. 2018 and supporting papers: Affirmation in Opposition dated February 27. 2018; Plaintiffs Reply Affirmation in Further Support dated March 1, 2018; and upon due deliberation and full consideration, it is
ORDERED that plaintiffs motion seeking partial summary judgment as to liability pursuant to CPLR 3212 against defendant is granted as follows; and it is further
ORDERED that plaintiffs counsel is hereby directed to serve a copy of this decision and order with notice of entry on counsel for all parties by overnight mail, return receipt requested forthwith.
FACTUAL BACKGROUND & PROCEDURAL POSTURE
Plaintiffs Rachelle & John Opman brought this personal injury negligence action against defendant arising out of a motor vehicle collision which occurred on Friday, June 13, 2014 at the intersection of Veterans Memorial Highway and the Long Island Expressway South Service Road in the Town of Islip, Suffolk County, New York.
This action commenced with plaintiff electronically filing a summons and complaint against defendant seeking recovery of damages for alleged personal injury premised on defendant's alleged negligence as a proximate cause of the underlying motor vehicle collision on November 23, 2016. Defendant joined issue filing an answer to the complaint January 22, 2017. Plaintiff amplified her pleadings filing a verified bill of particulars on August 1, 2017. Discovery in this matter is ongoing. Presently before the Court is plaintiffs opposed motion for partial summary judgment on liability against the defendant, which is resolved as follows.
In support of her application, plaintiff submits a copy of the pleadings, an affidavit in support dated January 20, 2017, a certified copy of the transcript of her deposition held on November 2, 2017; as well as an uncertified copy of the police accident investigation report.
At her pretrial deposition held on November 2, 2017, plaintiff testified that she was involved in a collision with a vehicle operated by defendant on Friday, June 13, 2014 at approximately 4:00 p.m. She recalled it was a dry clear day. Plaintiff was on her commute home from work in medium to heavy traffic on Veterans Memorial Highway, in the outermost left-hand turn lane, with the intention of turning left onto the Long Island Expressway South Service Road. She was stopped in traffic at a red light-controlled intersection, the fourth vehicle in traffic for approximately a minute when she felt a medium impact to the rear of her vehicle, a Lexus convertible. She did not observe defendant's vehicle prior to impact, nor did she recall hearing squealing/screeching of tires or horns blaring. Immediately after impact, she observed damage to the rear bumper of her vehicle. At the time of impact, plaintiffs right foot was on her brake pedal.
Based on this presentation, plaintiff presently moves pursuant to CPLR 3212 seeking partial summary judgment on liability based upon the rear-end collision in this case, arguing that her affidavit supports a determination as a matter of law that the defendant is liable for the incident plaintiff alleges as proximate cause for her damages
STANDARD OF REVIEW
It is well settled that summary judgment is a drastic remedy which should not be granted when there is doubt as to the existence of a triable issue of fact. Where, however, one seeking summary judgment tenders evidentiary proof in admissible form establishing its defense sufficiently to warrant the court as a matter of law in directing judgment in its favor, the burden falls upon the opposing party to show, also by evidentiary proof in admissible form, that there is a material issue of fact requiring a trial of the matter (see Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595 [1980]). The evidence presented on a motion for summary judgment must be scrutinized in the light most favorable to the party opposing the motion (see Goldstein v. Monroe County, 77 A.D.2d 232, 236, 432 N.Y.S.2d 966 [1980]).
The proponent on a motion of summary judgment 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 fact (Alvarez v Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923 [1986]; Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 487 N.Y.S.2d 316 [1985];]; Zuckerman v City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595 [1980]).
If the moving party fails in meeting this burden, the motion must be denied. If, however, this burden is satisfied, then the burden shifts to the opposing party to establish the existence of material issues of fact requiring a trial (see Zuckerman, supra). The function of the court in determining a motion for summary judgment is issue finding, not issue determination (Pantote Big Alpha Foods, Inc. v Schefman, 121 A.D.2d 295, 503 N.Y.S.2d 58 [1st Dept. 1986]).
The burden then shifts to the party 2 of 7 motion which must produce evidentiary proof in admissible form sufficient to require a trial of the material issues of fact (Roth v Barreto, 289A.D.2d 557. 735 N.Y.S.2d 197 T2d Dent. 20011: Rebecchi v Whitmore, 172 A.D.2d 600, 568 N.Y.S.2d 423 [2d Dept. 1991]; O'Neill v Fishkill, 134 A.D.2d 487, 521 N.Y.S.2d 272 [2d Dept. 1987]). The law is well-established that summary judgment is a drastic remedy to be granted only when there is clearly no genuine issue of fact to be presented at trial (see Andre v Pomeroy, 35 N.Y.2d 361, 362 N.Y.S.2d 131 [1974]; Benincasa v Garrubo, 141 A.D.2d 636, 529 N.Y.S.2d 797 [2d Dept. 1988]).
A rear-end collision with a stopped or stopping vehicle creates a prima facie case of negligence with respect to the operator of the moving vehicle and imposes a duty on the operator to rebut the inference of negligence by providing a non-negligent explanation for the collision" (Mulhern v Gregory, 161 A.D.3d 881, 883, 75 N.Y.S.3d 592, 594 [2d Dept 2018]; Comas-Bourne v City of New York, 146 A.D.3d 855, 856, 45 N.Y.S.3d 182, 183 [2d Dept 2017]; Whelan v Sutherland, 128 A.D.3d 1055, 1056, 9 N.Y.S.3d 639, 640 [2d Dept 2015]; Tutrani v. County of Suffolk, 10 N.Y.3d 906, 908; Gutierrez v. Trillium USA, LLC, 111 A.D.3d 669, 670-671, 974 N.Y.S.2d 563; Pollard v. Independent Beauty & Barber Supply Co., 94 A.D.3d 845, 846, 942 N.Y.S.2d 360; Perez v Roberts, 91 A.D.3d 620, 621, 936 N.Y.S.2d 259, 260 [2d Dept 2012]; Le Grand v Silberstein, 123 A.D.3d 773, 774, 999 N.Y.S.2d 96, 97 [2d Dept 2014]).
The claim that the lead vehicle made a sudden stop, standing alone, is insufficient to rebut the presumption of negligence on the part of the following vehicle (see Zdenek v Safety Consultants, Inc., 63 A.D.3d 918, 918, 883 N.Y.S.2d 57, 58 [2d Dept 2009]; Kastritsios v. Marcello, 84 A.D.3d 1174, 923 N.Y.S.2d 863; Franco v. Breceus, 70 A.D.3d 767, 895 N.Y.S.2d 152; Mallen v. Su, 67 A.D.3d 974, 890 N.Y.S.2d 79; Rainford v. Han, 18 A.D.3d 638, 795 N.Y.S.2d 645; Russ v. Investech Sees., 6 A.D.3d 602, 775 N.Y.S.2d 867; Xian Hong Pan v Buglione, 101 A.D.3d 706, 707, 955 N.Y.S.2d 375, 377 [2d Dept 2012]). However, "[i]f the operator cannot come forward with any evidence to rebut the inference of negligence, the plaintiff may properly be awarded judgment as a matter of law" (Barile v. Lazzarini, 222 A.D.2d 635, 636, 635 N.Y.S.2d 694; D'Agostino v YRC, Inc., 120 A.D.3d 1291, 1292, 992 N.Y.S.2d 358, 359 [2d Dept 2014]).
"When the driver of an automobile approaches another automobile from the rear, he or she is bound to maintain a reasonably safe rate of speed and control over his vehicle, and to exercise reasonable care to avoid colliding with the other vehicle" (Comas-Bourne v City of New York, 146 A.D.3d 855, 856, 45 N.Y.S.3d 182, 183 [2d Dept 2017]). Drivers have a duty to see what should be seen and to exercise reasonable care under the circumstances to avoid an accident (Williams v Spencer-Hall, 113 A.D.3d 759, 760, 979N.Y.S.2d 157, 159 [2d Dept 2014]). a rear-end collision with a stopped vehicle creates a prima facie case of liability with respect to the operator of the rearmost vehicle, thereby requiring that operator to rebut the inference of negligence by providing a nonnegligent explanation for the collision (Sayyed v Murray, 109 A.D.3d 464, 464, 970 N.Y.S.2d 279, 281 [2d Dept 2013]).
A possible non-negligent explanation for a rear-end collision could be the sudden stop of the lead vehicle," however, it is equally true that "vehicle stops which are foreseeable under the prevailing traffic conditions, even if sudden and frequent, must be anticipated by the driver who follows, since he or she is under a duty to maintain a safe distance between his or her car and the car ahead" (Tumminello v City of New York, 148 A.D.3d 1084, 1085, 49 N.Y.S.3d 739, 741 [2d Dept 2017]; Shamah v. Richmond County Ambulance Serv., 279 A.D.2d 564, 565, 719 N.Y.S.2d 287; see Gutierrez v Trillium USA, LLC, 111 A.D.3d 669, 671, 974 N.Y.S.2d 563, 566 [2d Dept 2013]; Robayo v. Aghaabdul, 109 A.D.3d 892, 893, 971 N.Y.S.2d 317). Even assuming that a lead vehicle stopped short or suddenly, following vehicles should not escape liability for an assumed failure to maintain a proper or safe following distance under the presented circumstances, where the record presents a scenario with triable questions of fact ripe for jury determination, rather than summary determination on the law (see e.g. Romero v Al Haag & Son Plumbing & Healing, Inc., 113 A.D.3d 746, 747, 978 N.Y.S.2d 895, 896 [2d Dept 2014][even assuming that the defendant driver failed to maintain a reasonably safe distance and rate of speed while traveling behind the plaintiffs vehicle under Vehicle and Traffic Law § 1129[a], defendant's deposition testimony relied upon by plaintiff, itself raised a triable issue of fact on whether the plaintiff contributed to the accident by driving in an erratic manner]; accord Fernandez v Babylon Mun. Solid Waste, 117 A.D.3d 678, 679, 985 N.Y.S.2d 289, 290 [2d Dept 2014] [under circumstances where plaintiff came to an abrupt stop for no apparent reason resulting in a collision, a triable issue of fact exists]; Sokolowska v Song, 123 A.D.3d 1004, 1004, 999 N.Y.S.2d 847, 848 [2d Dept 2014]).
Thus, the burden is placed on the driver of the offending vehicle, as he or she is in the best position to explain whether the collision was due to a mechanical failure, a sudden stop of the vehicle ahead, unavoidable skidding on wet pavement, or some other reasonable cause (see Abbott v Picture Cars E, Inc., 78 A.D.3d 869, 911 N.Y.S.2d 449 [2d Dept 2010]; DeLouise v S.K.I. Wholesale Beer Corp., 75 A.D.3d 489, 904 N.Y.S.2d 761 [2d Dept 2010]; Moran v Singh, 10 A.D.3d 707, 782 N.Y.S.2d 284 [2d Dept 2004]).
Most importantly, the New York Court of Appeals has recently clarified plaintiff-movant's burden on a motion such as that sub judice. The Court has reaffirmed and reminded motion courts that "a plaintiff is no longer required to show freedom from comparative fault in establishing his or her prima facie case, holding that plaintiff-movant seeking partial summary judgment on liability in a motor vehicle accident litigation "[t]o be entitled to partial summary judgment, ... does not bear the double burden of establishing a prima facie case of defendant's liability and the absence of his or her own comparative fault." (Rodriguez v City of New York, 31 N.Y.3d 312, 324-25 [2018]; Edgerton v City of New York, 160 A.D.3d 809, ___ N.Y.S.3d ___ [2d Dept 2018]).
Our courts have held that a movant establishes a prima facie entitlement to judgment as a matter of law on the issue of liability, based on an affidavit testimony stating that plaintiffs vehicle was stopped in traffic when it was struck in the rear by the defendants' vehicle, thus shifting the burden to the defendants to come forward with a non-negligent explanation for the accident (Oguzturk v. Gen. Elec. Co., 65 A.D.3d 1110, 1110, 885 N.Y.S.2d 343, 344 [2d Dept 2009]; see also McLaughlin v Lunn, 137 A.D.3d 757, 758, 26 N.Y.S.3d 338, 339 [2d Dept 2016][ plaintiff established prima facie entitlement to judgment as a matter of law on submission of affidavit providing that while completely stopped behind three other vehicles for 5 to 10 seconds at a red light at an intersection, her vehicle was hit in the rear by the defendants' vehicle, sufficient to raise an inference of with respect to the operator of the defendants' vehicle]).
DISCUSSION
Having reviewed his moving papers, the Court finds that both plaintiff has met her prima facie burden for entitlement to summary judgment on liability based on the submission of her sworn deposition testimony which demonstrates a prima facie case of negligence against the defendants. Thus, the burden has shifted to defendant to come forward with a non-negligent explanation for the incident.
Defendants have submitted opposition to plaintiffs motion by way of counsel's affirmation. Within that affirmation, defendants principally argue that plaintiffs motion is premature or inappropriate and should be denied since discovery in the matter is incomplete. More particularly, defendants argue that defendants' depositions are outstanding and incomplete. Further, defendants argue that triable issues of fact exist concerning the degree to which defendants might argue or rely upon the emergency doctrine as a potential non-negligent explanation for the rear-end collision here.
I. Premature Application Under CPLR 3212(f)
For reasons more fully articulated below, defendant cannot successfully rely on the fact that defendants have yet to be deposed as the sole basis to deprive plaintiff s judgment as a matter of law on liability at this time.
Defendant argues that plaintiffs motion is premature because it comes before the close of discovery relying in part on Adrianis v Fox, 30 A.D.3d 550, 550-51, 817 N.Y.S.2d 374, 375 (2d Dept 2006) holding that a motion court properly denies a partial liability summary judgment motion as premature where at least one party's deposition was still outstanding and the parties had previously stipulated to hold that deposition only seven days after the motion was made. Put differently, defendant's argument is that they have been unfairly deprived the opportunity to fully probe whether plaintiff bore any contributing or comparative fault in the resulting rear-end collision, not having the benefit of party depositions (see Amico v Melville Volunteer Fire Co., Inc., 39 A.D.3d 784, 785, 832 N.Y.S.2d 813 [2d Dept 2007][resolving that a party should be afforded a reasonable opportunity to conduct discovery prior to the determination of a motion for summary judgment]).
However, the Second Department is clear that defendant's mere hope or speculation that additional discovery might lead to or create a triable fact issue is insufficient to preclude the entry of summary judgment on liability in this negligence motor vehicle action (see e.g. Rodriguez v Farrell, 115 A.D.3d 929, 931, 983 N.Y.S.2d 68, 70 [2d Dept 2014][appellate court determining that summary judgment not premature where defendant failed to demonstrate that discovery would lead to relevant evidence or that facts essential to justify opposition to the motions were exclusively within the knowledge and control of the plaintiffs]; Medina v Rodriguez, 92 A.D.3d 850, 851, 939 N.Y.S.2d 514, 515 [2d Dept 2012]; Kimyagarov v Nixon Taxi Corp., 45 A.D.3d 736, 737, 846 N.Y.S.2d 309, 310-11 [2d Dept 2007]; Hill v Ackall, 71 A.D.3d 829, 829-30, 895 N.Y.S.2d 837, 838 [2d Dept 2010]). This is even more so in the wake of recently decided matter in the Court of Appeals making painstakingly clear that New York plaintiffs no longer bear the burden of establishing freedom from comparative fault to be entitled to partial summary judgment on liability (see e.g. Rodriguez supra.).
A party opposing summary judgment is entitled to obtain further discovery when it appears that facts supporting the opposing party's position may exist but cannot then be stated." Chmelovsky v. Country Club Homes, Inc., 106 A.D.3d 684, 964 N.Y.S.2d 245, 246 [2d Dept 2013]; Martinez v. 305 W. 52 Condo., 128 A.D.3d 912, 914, 9 N.Y.S.3d 375, 377 [2d Dept 2015]["A party should be afforded a reasonable opportunity to conduct discovery prior to the determination of a motion for summary judgment"]). The non-movant should be afforded a reasonable opportunity to conduct discovery prior to the determination of a motion for summary judgment (see Video Voice, Inc. v. Local T.V., Inc., 114 A.D.3d 935, 980 N.Y.S.2d 828; Bank of Am., N.A. v. Hillside Cycles, Inc., 89 A.D.3d 653, 932 N.Y.S.2d 128; Venables v. Sagona, 46 A.D.3d 672, 673, 848 N.Y.S.2d 238). Further, non-movant is also entitled to obtain further discovery when it appears that facts supporting the opposing party's position may exist but cannot then be stated (see CPLR 3212[f]; Nicholson v. Bader, 83 A.D.3d 802, 920 N.Y.S.2d 682; Family-Friendly Media, Inc. v. Recorder Tel. Network, 74 A.D.3d 738, 739, 903 N.Y.S.2d 80; Juseinoski v. New York Hosp. Med. Ctr. of Queens, 29 A.D.3d 636, 637, 815 N.Y.S.2d 183). Molester v. Rampil, 118 A.D.3d 855, 856, 988 N.Y.S.2d 226, 227-28 [2d Dept 2014]).
Under CPLR 3212(f), "where facts essential to justify opposition to a motion for summary judgment are exclusively within the knowledge and control of the movant, summary judgment may be denied.... This is especially so where the opposing party has not had a reasonable opportunity for disclosure prior to the making of the motion" (Juseinoski v. New York Hosp. Med. Ctr. of Queens, 29 A.D.3d 636, 637, 815 N.Y.S.2d 183, 184-85 [2d Dept 2006]; Baron v. Inc. Vil. of Freeport, 143 A.D.2d 792, 92-93; 533 N.Y.S.2d 143, 148 [2d Dept 1998]).
This Court remains unpersuaded by defendant's submission that he has carried his burden of demonstrating that this application cannot be resolved absent defendants' depositions. Thus, because this Court does not agree that the pre-disclosure status of plaintiff s application warrants denial solely for that reason under CPLR 3212(f), that aspect of defendant's opposition is unsuccessful.
II. No Triable Issue of Fact Precludes Entry of Summary Judgment for Plaintiff
Further, defendant opposes plaintiffs motion for summary judgment arguing the existence of triable questions of fact. However, this opposition exists solely in the form of counsel's affirmation, argument which in and of itself does not constitute competent or admissible evidence. Nowhere in defendants' opposition is any affidavit from either defendant or any other tangible piece of evidence supplied. Thus, defendants fail to carry their shifted burden of rebutting plaintiff s prima facie case of negligence against them by competent or admissible proof raising a triable question of fact meriting a liability trial and precluding judgment as a matter of law on liability for the plaintiff.
The law in this regard is settled. Defendants' reliance on their attorney's affirmation, without further submission of sworn testimony by any competent witness with direct personal or firsthand knowledge of the facts and circumstances underlying the subject accident, is insufficient to establish triable issues of fact warranting denial of summary judgment. The Second Department has repeatedly cautioned counsel on this point (Huerta v Longo, 63 A.D.3d 684, 685, 881 N.Y.S.2d 132, 133 [2d Dept 2009]; Collins v Laro Serv. Sys. of New York, Inc., 36 A.D.3d 746, 746-47, 829 N.Y.S.2d 168, 169 [2d Dept 2007][attorney's affirmation, together with inadmissible hearsay documents insufficient to warrant denial of the motion]; Cordova v Vinueza, 20 A.D.3d 445, 446, 798 N.Y.S.2d 519, 521 [2d Dept 2005][attorney's affirmation offering speculation unsupported by any evidence insufficient to raise a triable issue of fact]).
Thus, having found that plaintiff has met his prima facie their burden for entitlement to summary judgment on liability for a case of negligence against defendants, and further that defendants have failed to come forward with competent and admissible proof demonstrating triable issues of fact or non-negligent explanations for the rear-end collision here, necessitating a trial on their liability, this Court accordingly grants plaintiff partial summary judgment on liability against defendants under CPLR 3212.
The foregoing constitutes the decision and order of this Court.