Opinion
Index No. 613675/2019 Mot. Seq. : 001 MotD 002 XMG
01-10-2020
EDWARD PERSCHBACH, Plaintiff, v. GEORGE W. DAW and ROBERT A. DOUGLAS, Defendants.
Pltf's Attorney: Rosenberg & Gluck, LLP Deft's Attorney for George W. Daw: Law Offices of Denis J. Kennedy Deft's Attorney for Robert A. Douglas: Martin, Fallon & Mulle
Unpublished Opinion
Orig. Return Date: November 8, 2019, November 22, 2019
Final Return Date: November 22, 2019
Pltf's Attorney: Rosenberg & Gluck, LLP
Deft's Attorney for George W. Daw: Law Offices of Denis J. Kennedy
Deft's Attorney for Robert A. Douglas: Martin, Fallon & Mulle
Present: Hon. Paul J. Baisley, Jr., J.S.C.
PAUL J. BAISLEY, JR. JUDGE
Upon the following papers read on this e-filed motion for summary judgment: Notice of Motion/ Order to Show Cause and supporting papers by plaintiff, dated October 7, 2019; Notice of Cross Motion and supporting papers by defendant Robert Douglas, dated November 13, 2019; Answering Affidavits and supporting papers defendant George Daw, dated November 13, 2019; defendant George Daw, dated November 14, 2019; Replying Affidavits and supporting papers by defendant Robert Douglas, dated November 18, 2019; by plaintiff, dated November 21, 2019; Other; (and after hearing counsel in support and opposed to the motion) it is, ORDERED that the motion by plaintiff for, inter alia, summary judgment in his favor on the issue of defendants' negligence and for an order striking defendants' affirmative defense of comparative negligence is granted to the extent set forth therein, and is otherwise denied; and it is further
ORDERED that the cross motion by defendant Robert Douglas for summary judgment dismissing the complaint against him is granted; and it is further
ORDERED that counsel for the parties shall appear for a preliminary conference at 10:00 a.m. on January 27, 2020, at the DCM-J Part of the Supreme Court, 1 Court Street, Riverhead, New York.
This is an action to recover damages for injuries allegedly sustained by plaintiff Edward Perschbach as a result of a multi-vehicle accident, which occurred on March 27, 2017, on westbound Route 495, at or near its intersection with Exit 57, in Islip, New York. The accident allegedly occurred when a vehicle owned and operated by defendant George Daw struck a vehicle owned and operated by defendant Robert Douglas in the rear, which was then propelled forward into plaintiffs vehicle.
Plaintiff now moves for summary judgment in his favor on the issue of defendants' negligence and for an order striking defendants' affirmative defense of comparative negligence. He contends that his vehicle was stopped for traffic for at least 60 seconds when it was struck in the rear by Douglas' vehicle. He also contends that Douglas' vehicle was struck in the rear by Daw's vehicle at the time of the accident. In support of his motion, plaintiff submits, among other things, his affidavit. In opposition to plaintiffs motion, Daw agues that triable issues of fact exist as to which party was at fault in the happening of the collision, and that his motion is premature because the parties have yet to be deposed.
Douglas cross-moves for summary judgment dismissing the complaint against him. He contends that his stopped vehicle was struck in the rear by Daw's vehicle, and that the force of the impact propelled his vehicle into plaintiffs vehicle. By his cross motion, Douglas opposes plaintiffs motion on the same grounds. In support of his cross motion, Douglas submits, among other things, his affidavit. Daw opposes the cross motion, contending that triable issues of fact remain as to the surrounding circumstances of the accident preclude the award of summary judgment at this time, and that the cross motion is premature because the parties have yet to be deposed.
The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law by tendering evidence in admissible form sufficient to eliminate any material issues of fact from the case (see Alvarez v Prospect Hasp., 68 N.Y.2d 320, 508 N.Y.S.2d 923 [ 1986]; Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 87 N.Y.S.2d 316 [1985]). The movant has the initial burden of proving entitlement to summary judgment (Winegrad v New York Univ. Med. Ctr., supra). Once the movant demonstrates a prima facie entitlement to judgment as a matter of law, the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action (see Vega v Restani Constr. Corp., 18 N.Y.3d 499, 942 N.Y.S.2d 13 [2012]; Alvarez v Prospect Hosp., supra: Zuckerman v City of New York, 49 N.Y.2d 557; 427 N.Y.S.2d 595 [1980]; see also CPLR 3212 [b]). The failure to make a prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers (see Winegrad v New York Univ. Med. Ctr., supra). In deciding the motion, the court must view all evidence in the light most favorable to the nonmoving party (see Matter of New York City Asbestos Litig, 33 N.Y.3d 20, 99 N.Y.S.3d 734 [2019]; Vega v Restani Constr. Corp., supra).
Although a plaintiff is no longer required to show freedom from comparative fault to establish his or her prima facie entitlement to judgment as a matter of law on the issue of negligence (Rodriguez v City of New York, 31 N.Y.3d 312, 76 N.Y.S.3d 898 [2018]; see Liu v Lowe, 173 A.D.3d 946, 102 N.Y.S.3d 713 [2d Dept 2019]; Catanzaro v Edery, 172 A.D.3d 995, 101 N.Y.S.3d 170 [2d Dept 2019]; Marks v Rieckhoff 172 A.D.3d 847, 101 N.Y.S.3d 63 [2d Dept 2019]), a defendant moving for summary judgment in a negligence action has the burden of demonstrating, prima facie, that he or she was not at fault in the happening of subject collision (see M.M. T. v Relyea, ___A.D.3d___, 2019 NY Slip Op 08591 [2d Dept 2019]; Richardson v Cablevision Sys. Corp., 173 A.D.3d 1083, 104 N.Y.S.3d 655 [2d Dept 2019]; Greenv Masterson, 172 A.D.3d 826, 98 N.Y.S.3d 443 [2d Dept 2019]). The issue of a plaintiff s comparative negligence may, however, be decided in the context of a summary judgment motion if the plaintiff moves for summary judgment dismissing a defendant's affirmative defense of comparative negligence (see Higashi v M & R Scarsdale Rest., LLC, 176 A.D.3d 788, 2019 NY Slip Op 07240 [2d Dept 2019]; Wray v Galella, 172 A.D.3d 1446, 101 N.Y.S.3d 401 [2d Dept 2019]; Poon v Nisanov, 162 A.D.3d 804, 79 N.Y.S.3d 227 [2d Dept 2018]). A motor vehicle accident can have more than one proximate cause (see M.M. T. v Relyea, supra; Elkholy v Dawkins, 175 A.D.3d 1487, 109 N.Y.S.3d 392 [2d Dept 2019]; Richardson v Cablevision Sys. Corp., supra). Further, the issue of comparative fault is generally a question for the fact finder to determine (see Richardson v Cablevision Sys. Corp., supra; Vuksanaj v Abbott, 159 A.D.3d 1031, 73 N.Y.S.3d 224 [2d Dept. 2018]; Ortiz v Welna, 152 A.D.3d 709, 58 N.Y.S.3d 556 [2d Dept 2017]).
A driver of an automobile approaching another automobile from the rear must maintain a reasonably safe rate of speed and control over his or her vehicle, and exercise reasonable care to avoid colliding with the other vehicle (see Bloechle v Heritage Catering, Ltd., 172 A.D.3d 1294, 101 N.Y.S.3d 424 [2d Dept 2019]; Schmertzler v Lease Plan U.S.A., Inc. , 137 A.D.3d 1101, 27 N.Y.S.3d 648 [2d Dept 2016]; McLaughlin v Lunn, 137 A.D.3d 757, 26 N.Y.S.3d 338 [2d Dept 2016]). A rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the operator of the rear vehicle, and thereby requires that operator to rebut the inference of negligence by providing a non-negligent explanation for the collision (see Ordonez v Lee, ___A.D.3d ___, 2019 NY Slip Op 08199 [2d Dept 2019]; Gelo v Meehan, ___ A.D.3d ___, 2019 NY Slip Op 08175 [2d Dept 2019]; Morgan v Flippen, 173 A.D.3d 735, 102 N.Y.S.3d 108 [2d Dept 2019]). A non-negligent explanation may include evidence of a mechanical failure, a sudden, unexplained stop of the leading vehicle, an unavoidable skidding on wet pavement, or any other reasonable cause (see Grant v Carrasco, 165 A.D.3d 631, 84 N.Y.S.3d 235 [2d Dept 2018]; Tumminello v City of New York, 148 A.D.3d 1084, 49 N.Y.S.3d 739 [2d Dept 2017]; Orcel v Haber, 140 A.D.3d 937, 33 N.Y.S.3d 429 [2d Dept 2016]). However, a driver who follows another vehicle must anticipate that the leading vehicle may stop, even suddenly, based on prevailing traffic conditions (see Catanzaro v Edery, supra; Buchanan v Keller, 169 A.D.3d 989, 991 N.Y.S.3d 252 [2d Dept 2019]; Annan v New York State Off of Mental Health, 165 A.D.3d 1020, 87 N.Y.S.3d 70 [2d Dept 2018]). In a chain-collision accident, the operator of the middle vehicle may establish prima facie entitlement to judgment as a matter of law by demonstrating that his or her vehicle was properly stopped behind the lead vehicle when it was struck from behind by the rear vehicle and propelled into the lead vehicle (see Gonzalez v Goudiaby, ___ A.D.3d___, 2019 NY Slip Op 07929 [2d Dept 2019]; Mihalatos v Barnett, 175 A.D.3d 492, 106 N.Y.S.3d 165 [2d Dept 2019]; Skura v Wojtlowski, 165 A.D.3d 1196, 87 N.Y.S.3d 100 [2d Dept 2018]]). Further, in a chain-reaction collision, responsibility presumptively rests with the rearmost driver (see Chang v Rodriguez, 57 A.D.3d 295, 869 N.Y.S.2d 427 [1st Dept 2008]; De La Cruz v Ock Wee Leong, 16 A.D.3d 199, 791 N.Y.S.2d 102 [1st Dept 2005]; Mustafaj v Driscoll, 5 A.D.3d 138, 773 N.Y.S.2d 26 [1st Dept 2004]).
Douglas established his prima facie entitlement to summary dismissing the complaint against him. In support of his cross motion Douglas submitted his affidavit which demonstrated, prima facie, that his stopped vehicle was propelled forward into the rear of plaintiff s vehicle after it was struck in the rear by Daw's vehicle, and that he was not at fault in the happening of the accident (see Arellano v Richards, 162 A.D.3d 967, 79 N.Y.S.3d 288 [2d Dept 2018]; Skura v Wojtlowski, supra; Wooldridge-Solano v Dick, 143 A.D.3d 698, 39 N.Y.S.3d 41 [2d Dept 2016]). In his affidavit, Douglas avers that his vehicle was stopped when it was struck in the rear by Daw's vehicle. He also avers that the force of that impact propelled his vehicle into plaintiff s vehicle. The opposing parties failed to raise a triable issue of fact as to whether Douglas was at fault in the happening of the accident (see Arellano v Richards, supra; Skura v Wojtlowski, supra; Wooldridge-Solano v Dick, supra).
Plaintiff established his prima facie entitlement to summary judgment on the issue of Daw's negligence by demonstrating, prima facie, that Daw's vehicle struck the rear of Douglas1 vehicle, which thereby caused the subject chain-reaction accident (see Warner v Kain, 162 A.D.3d 1384, 79 N.Y.S.3d 362 [3d Dept 2018]; Gustke v Nickerson, 159 A.D.3d 1573, 72 N.Y.S.3d 733 [4th Dept 2018], Iv denied 162 A.D.3d 1604, 74 N.Y.S.3d 923 [4th Dept 2018]; Iv dismissed and denied 32 N.Y.3d 1048, 88 N.Y.S.3d 403 [2018]). In plaintiffs affidavit, he avers that his vehicle was stopped for traffic for at least 60 seconds when it was struck in the rear by Douglas' vehicle, which was struck in the rear by Daw's vehicle. Plaintiffs submissions were also sufficient to establish his prima facie entitlement for an order striking Daw's affirmative defense of comparative negligence (see Morales v Amar, 145 A.D.3d 1000, 44 N.Y.S.3d 184, 2016 [2d Dept 2016]; De Castillo v Sormeley, 140 A.D.3d 918, 32 N.Y.S.3d 654 [2d Dept 2016]; Strickland v Tirino, 99 A.D.3d 888. 952 N.Y.S.2d 599 [2d Dept 2012]). Plaintiff demonstrated, prima facie, that he was not at fault in the happening of the accident (see Morales v Amar, 145 A.D.3d 1000, 44 N.Y.S.3d 184, 2016 [2d Dept 2016]; De Castillo v Sormeley, 140 A.D.3d 918, 32 N.Y.S.3d 654 [2d Dept 2016]; Strickland v Tirino, 99 A.D.3d 888, 952 N.Y.S.2d 599 [2d Dept 2012]). In opposition, Daw failed to raise a triable issue of fact, as he did not submit evidence either denying plaintiffs allegations or proffering a non-negligent explanation for the collision (see Montalvo v Cedeno, 170 A.D.3d 1166, 96 N.Y.S.3d 638 [2d Dept 2019]; Binkowitz v Kolb, 135 A.D.3d 884, 24 N.Y.S.3d 186 [2d Dept 2016]; Service v McCoy, 131 A.D.3d 1038, 16 N.Y.S.3d 283 [2d Dept 2015]).
The Court notes that contrary to Daw's contention, neither the motion by plaintiff nor the cross motion by Douglas is premature. Daw failed to offer any evidentiary basis to suggest that discovery may lead to relevant evidence, or that facts essential to opposing the motion were exclusively within the knowledge and control of plaintiff or Douglas (see CPLR 3212[f]; Gonzalez v Goudiaby, ___ A.D.3d ___, 2019 NY Slip Op 07929 [2d Dept 2019]; Gaston v Vertsberger, 176 A.D.3d 919, 2019 NY Slip Op 07384 [2d Dept. 2019]; Harrinarain v Sisters of St. Joseph, 173 A.D.3d 983, 104 N.Y.S.3d 661 [2d Dept 2019]). The mere hope or speculation that evidence sufficient to defeat a motion for summary judgment may be uncovered during the discovery process is an insufficient basis for denying summary judgment (see Jobson v SM Livery Inc., 175 A.D.3d 1510, 109 N.Y.S.3d 376 [2d Dept 2019]; Batashvili v Veliz-Palacios, 173 A.D.3d 983, 104 N.Y.S.3d 661 [2d Dept 2019]; Figueroa v MTLR Corp., 157 A.D.3d 861, 69 N.Y.S.3d 359 [2d Dept 2018]).
Accordingly, the motion by plaintiff is granted in part and denied in part, and the cross motion by Douglas is granted.