Opinion
Index No. 620473/2018 Mot. Seq. 1 MG
11-01-2019
ERIC SCHULMAN, Plaintiff. v. JOSEPH BOCCIO, TRIUS, INC., CAROLYN DAWSON, and FRANK DAWSON, Defendants.
PLTF'S ATTORNEY: LITMAN & LITMAN, P.C. DEFT'S ATTORNEY for: Boccio & Trius LESTER SCHWAB K.ATZ & DWYER LLP DEFT'S ATTORNEY for: Dawsons MARTYN TOHER & MARTYN, ESQS.
Unpublished Opinion
ORIG. RETURN DATE: July 17, 2019
FINAL RETURN DATE: September 11, 2019
PLTF'S ATTORNEY:
LITMAN & LITMAN, P.C.
DEFT'S ATTORNEY for: Boccio & Trius
LESTER SCHWAB K.ATZ & DWYER LLP
DEFT'S ATTORNEY for: Dawsons
MARTYN TOHER & MARTYN, ESQS.
SHORT FORM ORDER
Hon. Paul J. Baisley, Jr., J.S.C.
Upon the following papers read on this motion for summary judgment: Notice of Motion/ Order to Show Cause and supporting papers by the Dawson defendants, dated June 12, 2019; Notice of Cross Motion and supporting papers;
Answering Affidavits and supporting papers by the defendant Boccio, dated July 11, 2019; Replying Affidavits and supporting papers by the Dawson defendants, dated August 7, 2019: Other; (and after hearing counsel in support and opposed to the motion) it is,
ORDERED
that the motion by the defendants Carolyn Dawson and Frank Dawson seeking summary judgment dismissing the complaint against them is granted; and it is further
ORDERED that parties in the instant action shall appear on December 2, 2019 at 10:00 a.m. at the DCM-J Part of the Supreme Court, 1 Court Street, Riverhead, New York for a preliminary conference.
The plaintiff Eric Schulman commenced this action to recover damages for injuries he allegedly sustained as a result of a motor vehicle accident that occurred on the westbound Long Island Expressway, near exit 56, approximately 100 feet from the Motor Parkway Bridge, in the Town of Smithtown on April 24, 2018. It is alleged that the accident occurred when the vehicle operated by the defendant Joseph Boccio struck the rear of the vehicle operated by the defendant Carolyn Dawson and owned by the defendant Frank Dawson while it was stopped in the westbound right lane of travel on the Long Island Expressway. As a result of the impact between the Boccio and Dawson vehicles, the Dawson vehicle was propelled forward into the rear of the vehicle owned and operated by the plaintiff.
The defendants Carolyn Dawson and Frank Dawson (collectively referred to as the "Dawson defendants") now move for summary judgment on the basis that the defendant Boccio's negligent operation of his vehicle was the sole proximate cause of the subject accident. In support of the motion, the Dawson defendants submit copies of the pleadings, Carolyn Dawson's affidavit, and a certified copy of the police accident report. The defendant Boccio opposes the motion on the ground that there are material triable issues of fact as to the subject accident's occurrence. Specifically, the defendant Boccio alleges that the Dawson vehicle struck the plaintiffs vehicle prior to his vehicle striking the Dawson vehicle. In opposition to the motion, the defendant Boccio submits his own affidavit.
To establish prima facie entitlement to judgment as a matter of law, a movant must come forward with evidentiary proof, in admissible form, demonstrating the absence of any material issues of fact (see Alvarez v Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923 [1986]; Sillman v Twentieth Century Fox Film Corp., 3 N.Y.2d 395, 165 N.Y.S.2d 498 [1957]). The failure to make such showing requires a denial of the motion, regardless of the sufficiency of the opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 487 N.Y.S.2d 316 [1985]).
It is well settled that a driver approaching a vehicle from the rear is bound to maintain a reasonably safe rate of speed and control over his or her vehicle, and to exercise reasonable care to avoid colliding with the other vehicle (see Vehicle and Traffic Law § 1129 [a]; Brothers v Bartling, 130 A.D.3d 554, 13 N.Y.S.3d 202 [2d Dept 2015]; Brooks v High St. Professional Bldg, Inc., 34 A.D.3d 1265, 825 N.Y.S.2d 330 [4th Dept 2006]). A rear-end collision creates a prima facie case of negligence against the operator of the rear vehicle, thereby requiring that operator to rebut the inference of negligence by providing a non-negligent explanation (see Ballatore v HUB Truck Rental Corp., 83 A.D.3d 978, 922 N.Y.S.2d 180 [2d Dept 2011]; Katritsios v Marcello, 84 A.D.3d 1174, [2d Dept 2011]; Plummer v Nourddine, 82 A.D.3d 1069, 919 N.Y.S.2d 187 [2d Dept 2011]). However, the lead vehicle also has a duty not to stop suddenly or slow down without proper signaling so as to avoid a collision (Chepel v Meyers, 306 A.D.2d 235, 237, 762 N.Y.S.2d 95 [2d Dept 2003]; see Carhuayano v J&R Hacking, 28 A.D.3d 413, 813 N.Y.S.2d 162 [2d Dept 2006]; Gaeta v Carter, 6 A.D.3d 576, 775 N.Y.S.2d 86 [2d Dept 2004]; Purcell v Axelsen, 286 A.D.2d 379, 729 N.Y.S.2d 495 [2d Dept 2001]; Colonna v Suarez, 278 A.D.2d 355, 718 N.Y.S.2d 618 [2d Dept 2000]; see also Vehicle and Traffic Law § 1163). A non-negligent explanation for the collision, such as mechanical failure or the sudden and abrupt stop of the vehicle ahead, is sufficient to overcome the inference of negligence and preclude an award of summary judgment (Danner v Campbell, 302 A.D.2d 859, 859, 754 N.Y.S.2d 484 [4th Dept 2003]; see Davidoff v Mullokandov, 74 A.D.3d 862, 903 N.Y.S.2d 107 [2d Dept 2010]; Rodriguez-Johnson v Hunt, 279 A.D.2d 781, 718 N.Y.S.2d 501 [3rd Dept 2001]).
In her affidavit, Carolyn Dawson states that prior to the subject accident's occurrence she was traveling westbound in the right lane of the Long Island Expressway, that traffic conditions were moderate, and that she was traveling approximately 40 to 50 miles per hour. She further states that although she does not recall the exact speed she was traveling or whether her foot was on the brake pedal at the time of impact, when her vehicle was struck in the rear by the vehicle operated by defendant Boccio it was moving, and that as a result of the impact between her vehicle and the Boccio vehicle, her vehicle was pushed forward into plaintiffs vehicle. The Dawson defendants' submission is sufficient to establish their prima facie entitlement to judgment as a matter of law (see Abbott v Picture Cars East, Inc., 78 A.D.3d 869, 911 N.Y.S.2d 449 [2d Dept 2010]; Costa v Eramo, 76 A.D.3d 942, 907 N.Y.S.2d 510 [2d Dept 2010]; Carman v Arthur J. Edwards Mason Contr. Co., Inc., 71 A.D.3d 813, 897 N.Y.S.2d 191 [2d Dept 2010]). A driver approaching a vehicle from the rear is bound to maintain a reasonably safe rate of speed and control over his or her vehicle, and to exercise reasonable care to avoid colliding with the other vehicle (see Vehicle and Traffic Law § 1129 [a]; Brooks v High St. Professional Bldg., Inc., 34 A.D.3d 1265, 825 N.Y.S.2d 330 [4th Dept 2006]). Moreover, vehicle stops that are foreseeable under the prevailing traffic conditions, even if sudden and frequent, must be anticipated by the driver who follows, since he or she has a duty to maintain a safe distance between his or her vehicle and the car ahead (Shamah v Richmond County Ambulance Serv., 279 A.D.2d 564, 565, 719 N.Y.S.2d 287 [2d Dept 2001]; see Vehicle and Traffic Law § 1129 [a]).
In opposition, the defendant Boccio failed to raise a triable issue of fact as to the existence of a non-negligent explanation for the subject accident's occurrence (see Hill v Ackall, 71 A.D.3d 829, 895 N.Y.S.2d 837 [2d Dept 2010]; Johnson v First Student, Inc., 54 A.D.3d 492, 863 N.Y.S.2d 303 [3d Dept 2008]; Faul v Reilly, 29 A.D.3d 626, 816 N.Y.S.2d 502 [2d Dept 2006]). The defendant Boccio has submitted an affidavit in which he attests that he was traveling westbound on the Long Island Expressway, that traffic was stop and go due to vehicular volume, that he was traveling behind the Dawson vehicle and that he was "adjusting his speed accordingly." He states that the Dawson vehicle came to an abrupt stop, striking the vehicle ahead of it, and that the Dawson vehicle did not attempt to stop, since he did not observe any brake lights on the vehicle prior to it suddenly stopping and striking plaintiffs vehicle. The defendant Boccio further avers that he tried to bring his vehicle to a stop, but was unable to and struck the rear of the Dawson vehicle, which already had struck the rear of the plaintiffs vehicle.
However, the defendant Boccio's statements in the certified police accident report states that "traffic stopped and he couldn't stop in time." Thus, the defendant Boccio's affidavit is a belated attempt to avoid the consequences of his earlier admission by raising a feigned issue of fact, and is insufficient to defeat the Dawson defendants' prima facie showing (see Benedikt v Certified Lbr. Corp., 60 A.D.3d 798, 875 N.Y.S.2d 526 [2d Dept 2009]; Grange v Jacobs, 11 A.D.3d 582, 783 N.Y.S.2d 634 [2d Dept 2004]; Guevara v Zaharakis, 303 A.D.2d 555, 756 N.Y.S.2d 465 [2d Dept 2003]). The defendant Boccio's statement in the police report was taken down by an officer who was acting within the scope of his employment and concomitantly serve as an admission against a party's interest (see Sydnor v Home Dept U.S.A., Inc., 74 A.D.3d 1185, 906 N.Y.S.2d 279 [2d Dept 2010]; Scott v Kass, 48 A.D.3d 785, 851 N.Y.S.2d 649 [2d Dept 2003]; Ferrara v Poranski, 88 A.D.2d 904, 450 N.Y.S.2d 597 [2d Dept 1982]). The defendant Boccio was under a duty to see that which his senses should have readily seen, and to maintain a safe distance between his vehicle and the Dawson defendants' vehicle in order to avoid colliding with the vehicle in front of his vehicle (see Rieman v Smith, 302 A.D.2d 510, 755 N.Y.S.2d 256 [2d Dept 2003]; Karkowska v Niksa, 298 A.D.2d 561, 749 N.Y.S.2d 55 [2d Dept 2002]; Stiles v County of Dutchess, 278 A.D.2d 304, 717 N.Y.S.2d 325 [2d Dept 2000]; see also Vehicle and Traffic Law § 1129 [a]). As a consequence, the defendant Boccio has failed to come forth with a nonnegligent excuse for the happening of the accident or to show the existence of any genuine triable issue of fact as to the Dawson defendants' comparative negligence regarding the subject accident's occurrence (see Hernandez v Burkitt, 271 A.D.2d 648, 706 N.Y.S.2d 456 [2d Dept 2000]; Bolta v Lohan, 242 A.D.2d 356, 661 N.Y.S.2d 286 [2d Dept 1997]; Rebecchi v Whitmore, 172 A.D.2d 600. 568 N.Y.S.2d 423 [2d Dept 1991] cf. Guzman v Bowen, 38 A.D.3d 837, 833 N.Y.S.2d 548 [2d Dept 2007]; Perla v Wilson, 287 A.D.2d 606, 732 N.Y.S.2d 35 [2d Dept 2001]). Accordingly, the Dawson defendants' motion for summary judgment dismissing the complaint against them is granted.