Opinion
Index 618962/2016
11-29-2018
JACQUELINE AMIN SMITH, Plaintiff, v. JESSICA ENTE & LISA ENTE, Defendants. Mot. Seq. No. 001 MG
PLAINTIFF'S COUNSEL: Robert T. Acker, PC DEFENDANT'S COUNSEL: Russo Tambasco
Unpublished Opinion
Motion Submit Date: 06/28/18
Mot SCH: 05/17/18
PLAINTIFF'S COUNSEL: Robert T. Acker, PC
DEFENDANT'S COUNSEL: Russo Tambasco
SHORT FORM ORDER
HON. WILLIAM G. FORD JUSTICE
On plaintiffs motion for partial summary judgment on liability pursuant to CPLR 3212, the following was considered: Notice of Motion & Affirmation in Support dated May 22, 2018 and supporting papers; Affirmation in Opposition dated June 18, 2018; and upon due deliberation and full consideration, it is
ORDERED that plaintiffs motion seeking partial summary judgment as to liability pursuant to CPLR 3212 against defendant 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 on counsel for all parties by overnight mail, return receipt requested forthwith.
FACTUAL BACKGROUND & PROCEDURAL POSTURE
Plaintiff brought this personal injury negligence action against defendants arising out of a motor vehicle collision which occurred on December 21, 2013 on Route 110 northbound Sunrise Highway (Route 27) in the Town of Huntington, Suffolk County, New York.
This action commenced with plaintiff electronically filing a summons and complaint against defendants seeking recovery of damages for alleged personal injury premised on their alleged negligence as a proximate cause of the underlying motor vehicle collision on November 22, 2016. Defendants joined issue filing an answer to the complaint January 4, 2017. Discovery in this matter is ongoing. Presently before the Court is plaintiffs opposed motion for partial summary judgment on liability against the defendants, which is resolved as follows.
In support of her application, plaintiff submits a copy of the pleadings, and executed deposition transcripts for plaintiffs deposition held on January 12, 2018 and defendant operator's held on January 12, 2018.
At her examination before trial, plaintiff testified that on Saturday, December 21, 2013, a dry and clear day, at approximately 2:00 p.m. she was operating her 2005 Mercedes Benz C-240 vehicle with her mother, daughter and husband travelling on Route 110 in the right-hand lane of travel to the bank at her mother's request. At or near the Buy Baby retailer, traffic became heavy and stopped. While stopped in traffic with her foot on her brake pedal, plaintiff observed defendant in a SUV approach the rear-end of her vehicle in "speeding" fashion. Plaintiff warned her passengers to "hold on" as she perceived that defendant would collide with her vehicle. Defendant collided with the plaintiff, making a heavy rear-end impact to plaintiffs vehicle.
Defendant testified at her deposition that on December 21, 2013 she was operating her mother's 2007 Acura RDX vehicle. She was travelling northbound on Route 110 from her mother's house in Dix Hills with an intended destination of the Walt Whitman Mall to do some Christmas shopping at or around midday. Defendant observed the roads to be dry and clear with heavy vehicle traffic as she also travelled in the righthand lane of travel. She testified that she was involved in a motor vehicle collision with the plaintiff, with her vehicle's frontend making impact and colliding with the rear-end bumper of plaintiffs vehicle. Defendant further stated that she did not observe plaintiffs vehicle prior to impact. Defendant characterized the rear-end collision as minimal.
STANDARD OF REVIEW
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 & 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]).
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" (Muthern 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. Invested! 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, 979N.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 v AI 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]). v
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 E., Inc., 78 A.D.3d 869, 911 N.Y.S.2d 449 [2d Dept 2010]; DeLouise v S.K.1. 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]).
Most importantly, the New York Court of Appeals has recently clarified plaintiff-movant's burden on a motion such as that subjudice. The Court has reaffirmed and reminded motion courts that "a plaintiff is no longer required to show freedom from comparative fault in establishing his or her prima facie case, holding that plaintiff-movant seeking partial summary judgment on liability in a motor vehicle accident litigation "[t]o be entitled to partial summary judgment, ... does not bear the double burden of establishing a prima facie case of defendant's liability and the absence of his or her own comparative fault." (Rodriguez v City of New York, 31 N.Y.3d 312, 324-25 [2018]; Edgerton v City of New York, 160 A.D.3d 809, __N.Y.S.3d __[2d Dept 2018]).
Our courts have held that a movant establishes a prima facie entitlement to judgment as a matter of law on the issue of liability, based on an affidavit testimony stating that plaintiffs vehicle was stopped in traffic when it was struck in the rear by the defendants' vehicle, thus shifting the burden to the defendants to come forward with a non-negligent explanation for the accident (Oguzturk v. Gen. Elec. Co., 65 A.D.3d 1110, 1110, 885 N.Y.S.2d 343, 344 [2d Dept 2009]; see also McLaughlin v Lunn, 137 A.D.3d 757, 758, 26 N.Y.S.3d 338, 339 [2d Dept 2016][ plaintiff established prima facie entitlement to judgment as a matter of law on submission of affidavit providing that while completely stopped behind three other vehicles for 5 to 10 seconds at a red light at an intersection, her vehicle was hit in the rear by the defendants' vehicle, sufficient to raise an inference of with respect to the operator of the defendants' vehicle]).
DISCUSSION
Having reviewed his moving papers, the Court finds that both plaintiff has met her prima facie burden for entitlement to summary judgment on liability based on the submission of her sworn deposition testimony which demonstrates a prima facie case of negligence against the defendant. Thus, the burden has shifted to defendants to come forward with a non-negligent explanation for the incident.
Defendants have submitted opposition to plaintiffs motion by way of counsel's affirmation. Within that affirmation, defendants principally argue that plaintiffs motion is a drastic remedy and that credibility assessments or questions of fact preclude judgment as a matter of law for plaintiff on liability at this time.
I. No Triable Issue of Fact Precludes Entry of Summary Judgment for Plaintiff
Defendants oppose plaintiffs motion for summary judgment arguing the existence of triable questions of fact. However, this opposition exists solely in the form of counsel's affirmation, argument which in and of itself does not constitute competent or admissible evidence. Nowhere in defendant's opposition is any affidavit from defendants or any other tangible piece of evidence supplied. Thus, defendants fail to carry their shifted burden of rebutting plaintiff s prima facie case of negligence against them by competent or admissible proof raising a triable question of fact meriting a liability trial and precluding judgment as a matter of law on liability for the plaintiff.
The law in this regard is settled. Defendants' reliance on their attorney's affirmation, without further submission of sworn testimony by any competent witness with direct personal or firsthand knowledge of the facts and circumstances underlying the subject accident, is insufficient to establish triable issues of fact warranting denial of summary judgment. The Second Department has repeatedly cautioned counsel on this point (Huerta v Longo, 63 A.D.3d 684, 685, 881 N.Y.S.2d 132, 133 [2d Dept 2009]; Collins v Laro Sen. Sys. of New York, Inc., 36 A.D.3d 746, 746-47, 829 N.Y.S.2d 168, 169 [2d Dept 2007][attorney's affirmation, together with inadmissible hearsay documents insufficient to warrant denial of the motion]; Cordova v Vinueza, 20 A.D.3d 445, 446, 798 N.Y.S.2d 519, 521 [2d Dept 2005][attorney's affirmation offering speculation unsupported by any evidence insufficient to raise a triable issue of fact]).
Thus, having found that plaintiff has met his prima facie their burden for entitlement to summary judgment on liability for a case of negligence against defendants, and further that defendants have 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, this Court accordingly grants plaintiff partial summary judgment on liability against defendants under CPLR 3212.
The foregoing constitutes the decision and order of this Court.