Opinion
524095/2019
08-20-2020
Ignat PETROV and Svetlana Berrios, Plaintiffs, v. Pamela B. DEYCH, Defendant.
Attorney for Plaintiffs Petrov and Berrios, Tarasov & Associates, P.C., 2566 86th Street, Brooklyn, NY 11214 Attorney for Plaintiff Petrov as to the Counter-Claim, Pillinger Miller Tarallo, LLP, 555 Taxer Road, 5th Floor, Elmsford, NY 10523 Attorney for Pamela B. Deych, James G. Bilello & Associates, 100 Duffy Avenue Ste. 500, Hicksville, NY 11801
Attorney for Plaintiffs Petrov and Berrios, Tarasov & Associates, P.C., 2566 86th Street, Brooklyn, NY 11214
Attorney for Plaintiff Petrov as to the Counter-Claim, Pillinger Miller Tarallo, LLP, 555 Taxer Road, 5th Floor, Elmsford, NY 10523
Attorney for Pamela B. Deych, James G. Bilello & Associates, 100 Duffy Avenue Ste. 500, Hicksville, NY 11801
Francois A. Rivera, J.
Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of motion filed on November 4, 2019, by plaintiffs Ignat Petrov (hereinafter Petrov) and Svetlana Berrios (hereinafter Berrios) for an order pursuant to CPLR 3212 granting summary judgment in Petrov's and Berrios' favor on the issue of liability and dismissing the defendant's affirmative defenses alleging comparative negligence, contributory negligence and culpable conduct. The motion is unopposed.
Notice of Motion
Affirmation of Petrov's counsel in support
Exhibits A-F
BACKGROUND
On November 4, 2019, Petrov and Berrios commenced this action by filing a summons and verified complaint with the Kings County Clerk's office. On December 12, 2019, defendant Pamela B. Deych (hereinafter Deych) joined issue by filing a verified answer with counterclaim. On February 11, 2020, Ignat Petrov responded to Deych's counterclaim by filing a verified answer to counterclaim.
Petrov's verified complaint and affidavit allege the following salient facts. On December 13, 2016 at approximately 1:40 p.m., Berrios was a passenger in a 2016 Nissan motor vehicle operated by Petrov. The vehicle operated by Petrov was completely stopped in the left lane on Ocean Avenue near an apartment building with the address of 1430 Ocean Avenue waiting for the red light to change.
At the same time, date, and place, Deych was operating a 2014 Honda motor vehicle bearing the New York State license plate number GTW1160. Deych was also travelling on the left lane of Ocean Avenue. About fifteen seconds after Petrov came to a stop, Deych collided with the rear of Petrov's vehicle. The collision was caused by Deych and seriously injured Petrov and Berrios.
LAW AND APPLICATION
A plaintiff moving for summary judgment on the issue of liability in a negligence action must establish, prima facie showing that the defendant breached a duty owed to the plaintiff and the defendant's negligent actions were a proximate cause of the alleged injuries ( Hall v. Powell, 183 AD3d 576 [2nd Dept 2020] ). A rear-end collision establishes a prima facie case of negligence on the part of the operator of the rear vehicle, thereby requiring that operator to rebut the inference of negligence by providing a non-negligent explanation for the collision ( Witonsky v. New York City Transit Authority, 145 AD3d 938 [2nd Dept 2016] ; Hall v. Powell, 183 AD3d 576 [2nd Dept 2020] ; Tsyganash v. Auto Mall Fleet Mgt., Inc., 163 AD3d 1033 [2nd Dept 2018] ).
A motion for summary judgment shall be supported by an affidavit, by a copy of the pleadings and by other available proof, such as, depositions and written admissions ( CPLR 3212 (b) ; Poon v. Nisanov , 162 AD3d 804 [2nd Dept 2018] ; Marriot v. Jackson, 67 Misc 3d 1211(A) [Kings Supreme Court 2020] ).
In support of their motion, the plaintiff Petrov submitted his own affidavit and a copy of a police accident report containing the defendant driver's admission that she was driving straight on Ocean Avenue when she rear-ended Petrov's vehicle causing damage. Party admissions contained in an uncertified police report are admissible ( Harrinarain v. Sisters of St. Joseph, 173 AD3d 983 [2nd Dept 2019] ; Pivetz v. Brusco , 145 AD3d 806 [2nd Dept 2016] ). The plaintiffs established their prima facie entitlement to judgment as a matter of law through Petrov's affidavit and police report. Petrov's affidavit averred that Petrov's vehicle was stopped behind at least ten other cars at a red light for approximately 15 seconds when it was struck in the rear end by the defendant's vehicle.
The defendant did not oppose the motion and therefore failed to raise a triable issue of fact as to whether there was a nonnegligent explanation for the rear end collision ( Hall, 183 AD3d 576 ). A driver of a vehicle approaching another vehicle from the rear is required to maintain a reasonably safe distance and rate of speed under the prevailing conditions to avoid colliding with the other vehicle ( Vehicle and Traffic Law § 1129 [a] ; Witonsky , 145 AD3d 938 ). Here, the defendant breached a duty owed to the plaintiffs, thus causing Petrov's injuries. It is well established that summary judgment may be granted only when it is clear that no triable issue of fact exists. A failure to make that showing requires the denial of the summary judgment motion, regardless of the adequacy of the opposing papers. ( Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851 [1985] ; Campbell v. Mehmood , 68 Misc 3d 1205(A) [Kings Supreme Court 2020] ).
Plaintiff Petrov's affidavit was also sufficient to establish prima facie, Petrov was not at fault in the happening of the accident, as it demonstrated that in operating his vehicle he exercised due to care by stopping at the red light for at least 15 seconds and that the collision occurred so suddenly that he could not avoid it. The affidavit and police report also establish that Berrios was a passenger in Petrov's vehicle who played no role in causing the accident. The defendant did not oppose the motion and consequently failed to raise a triable issue of fact.
CONCLUSION
The motion of Ignat Petrov for an order pursuant to CPLR 3212 granting summary judgment in Petrov's favor on the issue of liability against the defendant Pamela Deych is granted.
The motion of Ignat Petrov for an order pursuant to CPLR 3212 granting summary judgment in Petrov's favor dismissing the defendant's affirmative defenses alleging comparative negligence, contributory negligence and culpable conduct is granted.
The motion of Svetlana Berrios for an order pursuant to CPLR 3212 granting summary judgment in Berrios' favor on the issue of liability against the defendant Pamela Deych is granted.
The motion of Svetlana Berrios for an order pursuant to CPLR 3212 granting summary judgment in Berrios' favor dismissing the defendant's affirmative defenses alleging comparative negligence, contributory negligence and culpable conduct is granted.
The foregoing constitutes the decision and order of this Court.