Opinion
Index 21012/2012E
01-09-2014
Nilo Reyna and Yahira Reyna, Plaintiffs, v. Rahmat Al-Hassan, Shades Trans, Inc. a/k/a Shades Transit Inc., Jose R. Diaz, Jr. and Teresa Dellicarpini, Defendants.
Unpublished Opinion
DECISION AND ORDER
Lizbeth González, Judge.
Recitation of the papers considered in reviewing the underlying motion for summary judgment as required by CPLR § 2219(a):
Notice of Motion and annexed Exhibits and Affidavits........................................................1
Affirmations in Opposition and annexed Exhibits................................................................2
Reply Affirmation.................................................................................................................3
The plaintiffs claim that plaintiff Nilo Reyna sustained serious injuries as a result of the defendants' negligence. The plaintiffs allege that on 4/4/12 Mr. Nilo was the rear-seat passenger in a yellow taxicab owned by defendant Shades Trans, Inc. a/k/a Shades Transit Inc. ("Shades") and operated by defendant Al-Hassan when it rear-ended a vehicle owned by defendant Dellicarpini and operated by defendant Diaz. Plaintiff Yahira Reyna, the spouse of Nilo Reyna, seeks loss of consortium damages. The plaintiffs move for partial summary judgment on liability grounds. The defendants respectively oppose the plaintiffs' motion.
DISCUSSION
Summary judgment is a drastic remedy which "deprives the litigant of his day in court [and therefore] should only be employed when there is no doubt as to the absence of triable issues.'' (Martin v Briggs, 235 A.D.2d 192 [1st Dept 1997].)
In New York State, drivers are required to maintain a safe distance between their vehicles and any vehicles in front of them. (Vehicle and Traffic Law § 1129 [a]; De La Cruz v Ock Wee Leong, 16 A.D.3d 199 [1st Dept 2005].) In a chain-reaction collision, responsibility presumptively rests with the rearmost driver (De La Cruz v Ock Wee Leong, 16 A.D.3d 199 [ 1st Dept 2005]; Mustafaj v Driscoll and Lugo, 5 A.D.3d 138 [1st Dept 2004]) who must rebut the inference of negligence by providing a non-negligent explanation for the collision. (Garcia v. Bakemark Ingredients (East) Inc., 19 A.D.3d 224 [1st Dept 2005].) However, a triable issue of fact may be presented if the driver of the forward vehicle stopped or slowed suddenly. (Sawhney v Bailey, 13 A.D.3d 203 [1st Dept 2004].)
In support of their motion, the Reyna plaintiffs proffer a certified police report and the affidavit of Nilo Reyna.
By affidavit dated 9/25/13, Mr. Reyna states that on 4/4/12 at approximately 4:47PM he was in a taxicab on his way to meet his wife and mother-in-law for dinner. Mr. Reyna was a rear-seated passenger in the taxicab when it collided with the Dellacarpini/Diaz vehicle. He states that when the collision occurred, his body was thrown into the plexiglass separating the taxicab driver from the rear cabin causing him to break his nose, cut his lips and chin and injure his shoulder and knees. Mr. Reyna states that he possessed no control over the operation of the taxi at any time.
The police report states the following:
At T/P/O motorist of vehicle #1 states that he was going straight and was hit by vehicle #2. Vehicle #2 states that vehicle #1 made a quick right turn without signaling and vehicle #2 motorist didn't had [sic] time to break. Vehicle #2 passenger and one witness said that vehicle #1 motorist made a quick right turn with no signal light. Vehicle #1 motorist and the passenger from vehicle #2 went to St. Lukes Hosp by 323 bus. No towed required.Defendants Shades and Al-Hassan oppose the plaintiffs' motion on the ground that simply because the plaintiff was not negligent does not constitute negligence on behalf of the defendants. This argument is not dispositive since the initial question before the Court is whether plaintiff Nilo Reyna caused, created or contributed to the accident. The defendants also contend that the plaintiffs' motion is premature because discovery is incomplete but they proffer no evidence that further discovery may uncover something. (W&W Glass Systems, Inc. v Admiral Insurance Company, 91 A.D.3d 530 [1st Dept 2012].)
Defendants Dellicarpini and Diaz state that partial summary judgment as to the plaintiffs liability "may be appropriate" but oppose the plaintiff s motion to the extent that the "apportionment of liability between the defendants remain at issue."
CONCLUSION
The Reyna plaintiffs move for partial summary judgment on liability grounds. The Court has reviewed the plaintiffs' evidence and finds that they have met their burden. The defendants, however, have not met their shifting burden.
An attorney's affirmation lacks probative value on a summary judgment motion unless accompanied by competent evidence which constitutes admissible proof. (Adam v Cutner & Rathkopf, 238 A.D.2d 234 [1st Dept 1997].) Here, defendant Al-Hassan, the driver of the offending vehicle, submits no affidavit to explain, first-hand, the events leading to the rear-end collision. Defendants Shades and Al-Hassan contend that the plaintiffs' motion is premature but present nothing to suggest that discovery may impute liability to the taxi passenger plaintiff Nilo Reyna. (Progressive Northeastern Insurance Company v Penn-Star Insurance Company, 89 A.D.3d 547 [1stDept 2011] citing Bailey v New York City Tr. Auth., 270 A.D.2d 156 [2000].) The defendants cannot avoid summary judgment based on mere speculation. (W&W Glass Systems, Inc. v Admiral Insurance Company, 91 A.D.3d 530, supra.)
Defendants Dellicarpini and Diaz do not oppose the granting of partial summary judgment to the plaintiff-passenger.
Based on the foregoing, the plaintiffs' motion for partial summary judgment on liability grounds is granted; no evidence establishing plaintiff Reyna's culpability has been presented.
The plaintiffs shall serve a copy of this Decision and Order upon the defendants with notice of entry within 20 days.
This is the Decision and Order of the Court. Dated: January 9, 2014
So ordered.