Opinion
Index No. 620450/2018 Mot Seq No. 002 MG
02-04-2020
JOSE PINEDA, Plaintiff, v. LOUMIDIS FOODS INC & JOSE J. PEGUERO-PARRA, Defendants.
PLAINTIFF'S COUNSEL: Schulman & Hill PLLC DEFENDANTS' COUNSEL: Hammill O'Brien Croutier Dempsey Pender Koehler PC
Unpublished Opinion
Motion Submit Date: 09/19/19
PLAINTIFF'S COUNSEL: Schulman & Hill PLLC
DEFENDANTS' COUNSEL: Hammill O'Brien Croutier Dempsey Pender Koehler PC
WILLIAM G. FORD JUSTICE
In this electronically filed motor vehicle accident negligence action, on plaintiffs opposed motion for partial summary judgment on liability pursuant to CPLR 3212, this Court considered the following: NYSCEF Docs. Nos. 19-24; and upon due deliberation and full consideration of all of the above, it is
ORDERED that plaintiffs motion seeking partial summary judgment as to liability pursuant to CPLR 3212 against defendants 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 via electronic filing and electronic mail upon defendant's counsel forthwith; and it is further
ORDERED that, if applicable, within 30 days of the entry of this decision and order, that defendant's counsel is also hereby directed to give notice to the Suffolk County Clerk as required by CPLR 8019(c) with a copy of this decision and order and pay any fees should any be required.
BACKGROUND & POSTURE
Plaintiff commenced this personal injury negligence action against defendants arising out of a motor vehicle collision which occurred on June 6, 2018. By the pleadings filed, plaintiff seeks damages for personal injury premised on defendants negligence as a proximate cause of the underlying motor vehicle collision and attendant alleged serious injuries. Presently, plaintiff moves for an award of partial summary judgment on liability against the defendant.
In support of the application, plaintiff submits a copy of the pleadings, his affidavit, and a certified copy of the police accident investigation report.
Plaintiffs Testimony
In brief fashion, by his affidavit dated March 24, 2019, plaintiff testifies that on June 6, 2018 at approximately 5:00 p.m. he was operating his vehicle travelling on Sunrise Highway, State Highway 27 in dry and clear weather when he was rear-ended by a vehicle owned and operated by defendant Peguero-Parra.
The Police Accident Investigation Report
In support of his application for judgment as a matter of law on liability, plaintiff also submits a certified copy of the police accident investigation report dated June 6, 2018. Therein, a police officer who responded to the incident scene reports that a vehicle operated by a nonparty to this action stated that he was stopped in traffic when his vehicle was struck by plaintiffs vehicle. Plaintiff reported to the officer that he was slowing his vehicle in traffic when he was stuck in turn by defendant and pushed into the non-party's vehicle, not being able to stop his vehicle in time to avoid a collision.
Plaintiffs Argument in Support of Summary Judgment
Relying on the above testimony and evidence, plaintiff seeks partial summary judgment on liability arguing that defendants are liable to him as the proximate cause for the incident having initiated a rear-end collision with her vehicle stopped in traffic. This motion is unopposed.
STANDARDS OF REVIEW
The motion court's role on review of a motion for summary judgment is issue finding, not issue determination (Trio Asbestos Removal Corp. v Gabriel & Sciacca Certified Pub. Accountants, LLP, 164 A.D.3d 864, 865, 82 N.Y.S.3d 127, 129 [2d Dept 2018]). The court should refrain from making credibility determinations (Gniewek v Consol. Edison Co., 271 A.D.2d 643, 643, 707 N.Y.S.2d 871 [2d Dept 2000]).
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., 64N.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 opposing the 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 [2d Dept. 2001]; 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]).
However, whereas here, the non-movant fails to oppose a motion for summary judgment, there is, in effect, a concession that no question of fact exists, and the facts as alleged in the moving papers may be deemed admitted (Kuehne & Nagel v Baiden, 36 N.Y.2d 539, 369 N.Y.S.2d 667 [1975]).
DISCUSSION
The plaintiff in a negligence action moving for summary judgment on the issue of liability must establish, prima facie, that the defendants breached a duty owed to the plaintiff and that the defendants' negligence was a proximate cause of the alleged injuries (Montalvo v Cedeno, 170 A.D.3d 1166 [2d Dept 2019]; accord Buchanan v Keller, 169 A.D.3d 989, 991, 95 N.Y.S.3d 252, 254 [2d Dept 2019] [holding that plaintiff-movant seeking summary judgment on liability is no longer required to show freedom from comparative fault in order to establish prima facie entitlement to judgment as a matter of law]. Stated another way, "[t]o be entitled to partial summary judgment a plaintiff does not bear the ... burden of establishing ... the absence of his or her own comparative fault" (Balladares v City of New York, 2018-11929, 2019 WL 6334162, at *2 [2d Dept Nov. 27, 2019]; quoting Rodriguez v. City of New York, 31 N.Y.3d 312 [2018]).
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, 979 N.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 vAl Haag & Son Plumbing & Heating, 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 K, 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]).
Here, on review of the moving papers, the Court finds that plaintiff has dispensed with the requisite burden entitling him to judgment as a matter of law regarding liability with submission of her deposition testimony and the certified police accident investigation report. All taken together, the Court finds plaintiffs papers demonstrate a prima facie case of negligence against the defendants. Accordingly, the burden shifts to defendants to come forward with a non-negligent explanation for the incident. There being no opposition to plaintiffs application, this Court grants plaintiffs motion for summary judgment.
Defendants having submitted no opposition to plaintiffs summary judgment motion, have thus 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 and thereby conceded the issue. Thus, having not raised a triable issue of fact warranting trial on the question of liability, this Court accordingly, grants plaintiffs unopposed motion and enters judgment as a matter of law on liability for the plaintiff.
The foregoing constitutes the decision and order of this Court.