Opinion
Index No. 28560/2018E
01-31-2020
ROBERT RIVARA, Plaintiff, v. JINESH DOSHI and DILIP K. DOSHI, Defendants.
Unpublished Opinion
The following papers numbered 26 to 33 and 35 in the NYSCEF System were read on this motion for SUMMARY JUDGMENT (LIABILITY) , noticed on December 17, 2019 and duly submitted as No. 34 on the Motion Calendar of December 17, 2019
NYSCEF Doc. Nos.
Notice of Motion - Exhibits and Affidavits Annexed
26-33
Notice of Cross-Motion - Exhibits and Affidavits Annexed
Answering Affidavit and Exhibits
35
Replying Affidavit and Exhibits
Filed Papers
Memoranda of Law
Stipulations
Upon the foregoing papers, plaintiff s motion for summary judgment on the issue of defendants' liability for causing the subject motor vehicle accident is granted, in accordance with the annexed decision and order.
DECISION AND ORDER
Hon. JOHN R. HIGGITT, J.S.C.
Upon plaintiffs November 25, 2019 notice of motion and the affirmation and exhibits submitted in support thereof; defendants' December 10, 2019 affirmation in opposition; and due deliberation; plaintiffs motion for partial summary judgment on the issue of defendants' liability for causing the subject accident is granted.
This is a negligence action to recover damages for personal injuries that plaintiff allegedly sustained in a motor vehicle accident that took place on October 3, 2017. In support of his motion, plaintiff submitted the pleadings, the police accident report, and the transcripts of the parties' deposition testimony.
Plaintiff testified that he was traveling northbound on Grand Concourse in Bronx County when he had to bring his vehicle to a stop due to traffic. Plaintiff testified that he was stopped for about six seconds when his vehicle was struck in the rear by defendants' vehicle.
Defendant Jinesh Doshi testified that he brought defendants' vehicle to a stop behind plaintiffs vehicle, which was stopped due to traffic. When the light turned green, traffic began to move. However, defendant Jinesh Doshi heard a siren and glanced in his rearview mirror while defendants' vehicle was moving. When defendant Jinesh Doshi looked back out of his windshield, he observed that plaintiffs vehicle had stopped abruptly. Defendant Jinesh Doshi activated his brakes, but was unable to avoid striking plaintiffs vehicle.
"A rear-end collision with a stationary vehicle creates a prima facie case of negligence requiring a judgment in favor of the stationary vehicle unless defendant proffers a non-negligent explanation for the failure to maintain a safe distance ... A driver is expected to drive at a sufficiently safe speed and to maintain enough distance between himself [or herself] and cars ahead of him [or her] so as to avoid collisions with stopped vehicles, taking into account weather and road conditions" (LaMasa v Bachman, 56 A.D.3d 340. 340 [1st Dept 2008]). The happening of a rear-end collision is itself a prima facie case of negligence of the rearmost driver in a chain confronted with a stopped or stopping vehicle (see Cabrera v Rodriguez, 72 A.D.3d 553 [1st Dept 2010]).
Vehicle and Traffic Law § 1129(a) states that a "driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon and the condition of the highway" (see Darmento v Pacific Molasses Co., 81 N.Y.2d 985, 988 [1993]). Based on the plain language of the statute, a violation is clear when a driver follows another too closely without adequate reason and that conduct results in a collision (id.)
In opposition to plaintiffs prima facie showing of entitlement to judgment as a matter of law on the issue of liability, defendants failed to provide a non-negligent explanation for the accident or otherwise raise a triable issue of fact as to their liability. Defendants assert that they are not negligent because there was an emergency situation created by the sudden sound of the siren of an emergency vehicle and due to plaintiffs sudden stop. Defendants, however, waived the emergency doctrine as a defense because they failed to include it as an affirmative defense in their answer (see Bello v Transit Auth., 12 A.D.3d 58, 61 [2d Dept 2004]).
In any event, the emergency doctrine applies when a defendant provides evidence that he or she was confronted with a sudden and unexpected situation that leaves little or no time for reflection or deliberation and that his or her reaction was reasonable under the circumstances (see Caristo v Sanzone, 96 N.Y.2d 172 [2001]; see also Ferrer v Harris, 55 N.Y.2d 285 [1982]). The emergency doctrine is typically inapplicable to rear-end traffic accidents (see Johnson v Phillips, 261 A.D.2d 269, 271 [1st Dept 1999]).
Additionally, defendants' conclusory assertion that plaintiff made a sudden stop is insufficient to raise a triable issue of fact as to defendants' liability. Generally, a claim that the driver of a rear-ended vehicle made a sudden stop is insufficient to constitute a non-negligent explanation for the accident (see Bajrami v Twinkle Cab Corp., 147 A.D.3d 649[ 1 st Dept 2017]). Thus, the general rule regarding liability for rear-end accidents "has been applied when the front vehicle stops suddenly in slow-moving traffic; even if the sudden stop is repetitive; when the front vehicle, although in stop-and-go traffic, stopped while crossing an intersection; and when the front car stopped after having changed lanes" (Johnson v Phillips, 261 A.D.2d at 271). Furthermore, "[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" (Nsiah-Ababio v Hunter, 78 A.D.3d 672, 672 [2d Dept 2010]). Thus, defendants' claim that plaintiff made a sudden stop is insufficient to raise a triable issue of fact as to defendant's liability.
The court notes that plaintiff did not seek (and the court has not considered) dismissal of defendants' affirmative defense of comparative fault (see CPLR 2214[a]; cf. Poon v Nisanov, 162 A.D.3d 804 [2nd Dept 2018]).
Accordingly, it is
ORDERED, that plaintiffs motion for summary judgment on the issue of defendants' liability is granted.
The parties are reminded of the March 16, 2020 pre-trial conference before the undersigned.
This constitutes the decision and order of the court.