Opinion
Index No. 611986/19 Motion Seq. No. 001 MG
01-21-2021
JEFFREY SUMNER, Plaintiff, v. "JOHN DOE" and ROSEMARY EKPUNOBI, Defendants.
Unpublished Opinion
PRESENT: Hon. Carmen Victoria St. George Justice of the Supreme Court
DECISION/ORDER
Carmen Victoria St. George J.S.C.
The following electronically-filed papers were read upon this motion:
Notice of Motion/Order to Show Cause............ 11-17
Answering Papers........................................
Reply.......................................................
Briefs: Plaintiffs/Petitioner's........................
Defendant's/Respondent's..................
Plaintiff moves this Court for an Order granting summary judgment against the defendants on the issue of liability for the happening of the subject accident between plaintiffs bicycle and defendants' motor vehicle. Plaintiff also requests that defendants' answer be stricken, that the defendants be precluded from offering affidavits in opposition to the instant motion, and that they be precluded from testifying at a trial of this matter. The defendants have failed to oppose the instant motion; accordingly, that portion of plaintiff s motion to preclude them from offering affidavits in opposition is moot.
The only answer interposed in this matter is the answer of defendant Rosemary Ekpunobi, which is not verified by her.
It is well recognized that summary judgment is a drastic remedy and as such should only be granted in the limited circumstances where there are no triable issues of fact (Andre v. Pomeroy, 35 N.Y.2d 361 [1974]). Summary judgment should only be granted where the court finds as a matter of law that there is no genuine issue as to any material fact (Cauthers v. Brite Ideas, LLC, 41 A.D.3d 755 [2d Dept 2007]). The Court's analysis of the evidence must be viewed in the light most favorable to the non-moving party, herein the defendants (Makaj v. Metropolitan Transportation Authority, 18 A.D.3d 625 [2d Dept 2005]).
"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] [denial of summary judgment for plaintiff reversed; summary judgment on liability granted where both vehicles were moving at the time of the rear-end collision]; Batashvili v. Veliz-Palacios, 170 A.D.3d 791 [2d Dept 2019] [front end of defendant's vehicle collided with the rear of plaintiff's vehicle while both vehicles were moving in the same direction on the Van Wyck Expressway]).
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 of the moving vehicle to rebut the inference of negligence by providing a non-negligent explanation for the collision (McCoy v. Zaman, 67 A.D.3d 653 [2d Dept 2009]; Velasquez v. Denton Limo., Inc., 7 A.D.3d 787 [2d Dept 2004]).
A bicycle is considered a "vehicle," "being granted all of the rights and shall be subject to all of the duties applicable to the driver of a vehicle by this title..." (Vehicle and Traffic Law § 1231 ). VTL § 1129 (a) provides that, "[t]he 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 a vehicle and the traffic upon and the condition of the highway." VTL § 1122-a provides: "The operator of a vehicle overtaking, from behind, a bicycle proceeding on the same side of a roadway shall pass to the left of such bicycle at a safe distance until safely clear thereof." Finally, VTL § 1146(a) provides in pertinent part: "Notwithstanding the provisions of any other law to the contrary, every driver of a vehicle shall exercise due care to avoid colliding with any bicyclist, pedestrian, or domestic animal upon any roadway and shall give warning by sounding the horn when necessary."
In support of his summary judgment motion on the issue of liability, plaintiff submits the pleadings, his deposition transcript and a certified police accident report.
The submitted evidence establishes that plaintiff was riding what he described as a "high-end road bike" at approximately 7:30 a.m., on July 26, 2017. The weather was hot and sunny, and the roads were dry. Plaintiff regularly rode his bicycle approximately four to five days per week at that time, for approximately twenty-five (25) to thirty (30) miles at a minimum on each day that he rode. On the date of the accident, he testified that he had made a right turn onto Montauk Highway from an intersecting street. Before he made the right-hand turn onto Montauk Highway, plaintiff looked to his left and did not see any vehicles approaching. At that point, before he made the right turn, plaintiff testified that he could see for a quarter-mile to his left, and that nothing obstructed his view of traffic on Montauk Highway at that location. Plaintiff completed his right-hand turn and proceeded approximately from a "couple feet" to ten feet before the accident occurred. Plaintiff first noticed that he was involved in an accident when he heard "the sound of a crumpling effect" and "[was] ejected instantaneously over the handlebars." Plaintiff further testified that he "blacked out for a couple of seconds" the moment he was hit.
Immediately prior to the accident, plaintiff testified that he was riding inside the two-to-three-foot-wide shoulder of Montauk Highway, with traffic. He described Montauk Highway at the location of the impact as a straight, flat roadway, and that he could see for a quarter-mile ahead of him. The vehicle that hit him came from behind him and he did not see or hear anything prior to impact. Plaintiff described the vehicle that struck him as a black Ram pickup truck. According to plaintiff, the front end of that truck struck the rear wheel of his bicycle. Plaintiff saw the truck "take off in the distance" after plaintiff got up off the ground. Prior to the accident, plaintiff testified that no other vehicles had passed him. In fact, plaintiff stated that "[i]t was a very quiet morning. That's why I go out riding early in the morning to avoid traffic."
After the accident, plaintiff testified that a person from another motor vehicle parked his vehicle and approached plaintiff. According to plaintiff, that individual said he was behind the black pickup truck at the time of the accident, witnessed the accident, and retrieved the license plate number for the black pickup truck, which is apparently registered to defendant Ekpunobi. The police accident report reflects Ekpunobi's ownership of that pickup truck. Plaintiff then dialed 911 and emergency personnel responded to the scene.
Accordingly, plaintiff has established his prima facie entitlement to summary judgment as a matter of law on the issue of liability for the happening of the subject accident.
In order to defeat plaintiffs motion for summary judgment, defendants must provide a non-negligent explanation for the rear-end collision sufficient to raise an issue of fact as to whether the possibly negligent operation of plaintiff s bicycle caused or contributed to the accident (Foti v. Fleetwood Ride, Inc., 57 A.D.3d 724 [2d Dept 2008]; Boockvor v. Fischer, 56 A.D.3d 405 [2d Dept 2008]).
As the instant motion is unopposed, defendants have failed to establish the existence of a triable issue of fact. By failing to controvert plaintiffs claims, the statements made in the plaintiffs deposition testimony and the information contained in the certified police accident report submitted in support of the instant summary judgment motion are deemed admitted by defendants (Kuehne & Nagel, Inc. v. Baiden, 36 N.Y.2d 539 [1975]; McNamee v. City of New Rochelle, 29 A.D.3d 544 [2d Dept 2006]; Bell Atlantic Yellow Pages Co. v. Padded Wagon, Inc., 292 A.D.2d 317 [1st Dept 2002]; Schneider Fuel Oil, Inc. v. DeGennaro, 238 A.D.2d 495 [2d Dept 1997]).
Accordingly, plaintiffs summary judgment motion is granted as to the issue of liability for the happening of the subject accident.
In light of this determination, the Court does not find it necessary to strike defendant Ekunobi's answer, nor is striking of the answer an appropriate penalty for failure to appear for deposition. "[T]he specific remedy for [defendants'] failure to appear for deposition was preclusion, not the striking of [the] answer" (Glaser v. Fugazy Limousine, 227 A.D.2d 111, 112 [1st Dept 1996]; Thompson v. New York City Transit Authority, 2019 NY Slip Op 33129 [U] [Sup Ct New York County 2019]).
Plaintiffs request to preclude the defendants from testifying at a trial of this matter due to their failure to appear for five scheduled depositions is granted to the extent that the defendants are precluded from testifying at trial as to the issue of liability for the happening of the subject accident. The defendants have flouted three separate Orders of this Court directing that the driver of the pickup truck be deposed, thereby warranting the penalty of preclusion of testimony on the issue of liability at the time of trial (CPLR § 3126 [2]).
The foregoing constitutes the Decision and Order of this Court.