Opinion
Index 64723/2018
04-15-2019
KELLY SOUMBASKIS, Plaintiff, v. MAURA E. FITZGERALD, MICHAEL R. HERMAN and CAB EAST, LLC, Defendants. Seq. No. 2
Unpublished Opinion
DECISION & ORDER
HON. CHARLES D. WOOD Justice
New York State Courts Electronic Filing ("NYSCEF") Documents Numbers 23-32, 35-36 were read in connection with plaintiffs motion for partial summary judgment on the issue of liability.
This is an action for serious personal injuries arising out of an automobile accident that occurred on March 4, 2016, when defendant owner Michael R. Hermans's motor vehicle that was being operated by defendant Maura E. Fitzgerald struck the rear of the vehicle operated by plaintiff while she was stopped at a red light.
Plaintiff brings this motion for summary judgment on the issue of liability, claiming that there is no triable issue of fact. Defendants failed to oppose the motion. Upon the foregoing papers, the motion is decided as follows:
A proponent of a summary judgment motion 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 Hospital, 68 N.Y.2d 320, 324 [1986]; Orange County-Poughkeepsie Ltd. Partnership v Bonte, 37 A.D.3d 684, 686-687 [2d Dept 2007]; Rea v Gallagher. 31 A.D.3d 731 [2d Dept 2007]). Moreover, failure to make such a prima facie showing requires a denial of the motion, regardless of the sufficiency of the motion papers (Winegrad v New York University Medical Center, 64 N.Y.2d 851, 853 [1986]; Jakabovics v Rosenberg. 49 A.D.3d 695 [2d Dept 2008]; Menzel v Plotkin. 202 A.D.2d 558, 558-559 [2d Dept 1994]). Once the movant has met this threshold burden, the opposing party must present the existence of triable issues of fact (Zuckerman v New York, 49 N.Y.2d 557, 562 [1980]; Khan v Nelson. 68 A.D.3d 1062 [2d Dept 2009]). In deciding a motion for summary judgment,, the court is "required to view the evidence presented in the light most favorable to the party opposing the motion and to draw every reasonable inference from the pleadings and the proof submitted by the parties in favor of the opponent to the motion" Welder v. Walters. 64 A.D.3d 762, 767 [2d Dept 2009]; Nicklas v Tedlen Realty Corp., 305 A.D.2d 385, 386 [2d Dept 2003]). Summary judgment is a drastic remedy and should not be granted where there is any doubt as to existence of a triable issue (Alvarez v Prospect Hospital, 68 N.Y.2d 320, 324 [1986]).
Generally, Vehicle and Traffic Law S 1129(a) imposes a duty on all drivers to drive at a safe speed and maintain a safe distance between vehicles, always compensating for any known adverse road conditions (Ortega v City of New York, 721 N.Y.S.2d 790 [2d Dept 2000]). "When a driver approaches another vehicle from the rear, he is bound to maintain a reasonably safe rate of speed and to maintain control of his vehicle and use reasonable care to avoid colliding with the other vehicle" (Young v City of New York, 113 A.D.2d 833, 834 [2d Dept 1985]). "A rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the operator of the rear vehicle, thereby requiring that operator to rebut the inference of negligence by providing a nonnegligent explanation for the collision" (Fernandez v Babylon Mun. Solid Waste, 117 A.D.3d 678 [2d Dept 2014]). In other words, proof of a rear-end collision establishes a prima facie case of negligence on the part of the driver of the vehicle that strikes the forward vehicle and imposes a duty upon said offending vehicle to come forward with admissible proof to establish an adequate, non negligent explanation for a rear-end collision (Parise v Meltzer. 204 A.D.2d 295 [2d Dept 1994]; Moran v. Singh, 10 A.D.3d 707, 708 [2d Dept 2004]); Cerda v Parsley, 273 A.D.2d 339 [2d Dept 2000]). In addition, where a vehicle is lawfully stopped, there is a duty imposed on the operators of vehicles traveling behind it in the same direction to come to a timely halt (Carter v Castle Elec. Contr. Co., 26 A.D.2d 83 [2d Dept 1966]). The operator of the moving vehicle is required to rebut the inference of negligence created by an unexplained rear-end collision because he or she is in the best position to explain whether the collision was due to a reasonable, non-negligent cause (Carter v Castle Elec. Contr. Co., at 85).
The sudden stop of a lead car is one of the non-negligent explanations of a rear-end collision, because the operator of that car has a duty to avoid stopping suddenly without properly signaling to avoid a collision "when there is opportunity to give such signal" (Vehicle and Traffic Law 91163; see id.; Colonna v. Suarez, 278 A.D.2d 355 [2d Dept 2000]); Taveras v. Amir, 24 A.D.3d 655, 656 [2d Dept 2005]). Moreover, under Vehicle and Traffic Law 91163, it is incumbent upon a driver to turn on the signal when making a left turn, and the failure to do so has been found to be sufficient to preclude the granting of summary judgment to a plaintiff on an argument that a rear ending collision is negligence against the rearward operator (Klochpin v. Masri, 45 A.D.3d 737 [2d Dept 2006]). But if defendant cannot come forward with any evidence to rebut the inference of negligence, plaintiffs may properly be awarded judgment as a matter of law on the issue of liability (Lopez v Minot, 258 A.D.2d 564 [2d Dept 1999]).
Here, plaintiffs motion is supported by evidence that establishes prima facie entitlement to judgment as a matter of law on the undisputed facts that defendants rear ended plaintiffs car.
Accordingly, plaintiff has met her prima facie burden of establishing defendants' negligence, and plaintiff is entitled to summary judgment unless defendants present a negligent explanation for the car accident.
Defendants offer no opposition to this summary judgment on the issue of liability. Accordingly, defendants failed to provide any other evidence as to any negligence on the part of plaintiff or to provide a non-negligent explanation for the accident sufficient to raise a triable question of fact (Grimm v Bailey, 105 A.D.3d 703 [2d Dept 2013]).
NOW, therefore for the above stated reasons, it is hereby
ORDERED, that the plaintiffs motion for partial summary judgment on the issue of liability is granted, and the Clerk is directed to enter judgment accordingly; and it is further
ORDERED, that the issue of serious injury will be tried during the trial on damages, and that the granting of this summary judgment motion does not preclude further determination that plaintiff may or may not have sustained serious injury as defined by Insurance Law S5102 [d]; and it is further
ORDERED, that the parties are directed to appear in the Compliance Conference Part on May 1, 2019 at 9:30 A.M. in room 800 of the Westchester County Courthouse, 111 Dr. Martin Luther King Jr. Blvd., White Plains, New York 10601. If necessary, a trial on damages shall be scheduled in accordance with standard Westchester DCM, SCP and TRP protocols.
All matters not herein decided are denied. This constitutes the Decision and Order of the court.