Opinion
2021–08375 Claim No. 133121
10-25-2023
Susana TENEZACA, respondent, v. STATE of New York, appellant.
Letitia James, Attorney General, New York, NY (Judith N. Vale, Eric Del Pozo, and Kristin C. Holladay of counsel), for appellant. Ferro, Kuba, Mangano, P.C., Hauppauge, NY (Michael N. Manolakis of counsel), for respondent.
Letitia James, Attorney General, New York, NY (Judith N. Vale, Eric Del Pozo, and Kristin C. Holladay of counsel), for appellant.
Ferro, Kuba, Mangano, P.C., Hauppauge, NY (Michael N. Manolakis of counsel), for respondent.
ANGELA G. IANNACCI, J.P., PAUL WOOTEN, BARRY E. WARHIT, LILLIAN WAN, JJ.
DECISION & ORDER In a claim to recover damages for personal injuries, the defendant appeals from an interlocutory judgment of the Court of Claims (Gina M. Lopez–Summa, J.), dated November 29, 2021. The interlocutory judgment, upon an order of the same court dated October 5, 2021, inter alia, granting the claimant's motion, in effect, for summary judgment on the issue of liability and dismissing the defendant's affirmative defense alleging comparative negligence and culpable conduct on her part and determining that the defendant was 100% at fault in the happening of the accident, is in favor of the claimant and against the defendant on the issue of liability.
ORDERED that on the Court's own motion, the notice of appeal from the order dated October 5, 2021, is deemed to be a premature notice of appeal from the interlocutory judgment (see CPLR 5520[c] ); and it is further,
ORDERED that the interlocutory judgment is affirmed; and it is further,
ORDERED that one bill of costs is awarded to the claimant.
The claimant commenced this claim to recover damages for personal injures she allegedly sustained when the vehicle she was operating was struck in the rear by a dump truck owned by the defendant, the State of New York, and operated by its employee, Brian Fitzgerald, on the South Service Road of the Long Island Expressway near its intersection with Route 112. The claimant moved, in effect, for summary judgment on the issue of liability and dismissing the defendant's affirmative defense alleging comparative negligence and culpable conduct on her part. The Court of Claims, inter alia, granted the claimant's motion, determining that the defendant, through its agent, was 100% at fault in the happening of the accident. An interlocutory judgment was entered in favor of the claimant and against the defendant on the issue of liability. The defendant appeals.
"A plaintiff in a negligence action moving for summary judgment on the issue of liability must establish, prima facie, that the defendant breached a duty owed to the plaintiff and that the defendant's negligence was a proximate cause of the alleged injuries" ( Tsyganash v. Auto Mall Fleet Mgt., Inc., 163 A.D.3d 1033, 1033–1034, 83 N.Y.S.3d 74 ). "A plaintiff is no longer required to show freedom from comparative fault to establish her or his prima facie entitlement to judgment as a matter of law on the issue of liability" ( Xin Fang Xia v. Saft, 177 A.D.3d 823, 825, 113 N.Y.S.3d 249 ; see Rodriguez v. City of New York, 31 N.Y.3d 312, 76 N.Y.S.3d 898, 101 N.E.3d 366 ). However, while "a plaintiff is not required to establish his or her freedom from comparative negligence to be entitled to summary judgment on the issue of liability, the issue of a plaintiff's comparative negligence may be decided in the context of a summary judgment motion where the plaintiff moves for summary judgment dismissing a defendant's affirmative defense alleging comparative negligence and culpable conduct on the part of the plaintiff" ( Sapienza v. Harrison, 191 A.D.3d 1028, 1029, 142 N.Y.S.3d 584 ; see Seizeme v. Levy, 208 A.D.3d 809, 810, 174 N.Y.S.3d 421 ).
"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, 913 N.Y.S.2d 659 ; see Vehicle and Traffic Law § 1129[a] ). Thus, "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" ( Drakh v. Levin, 123 A.D.3d 1084, 1085, 1 N.Y.S.3d 202 ; see Newfeld v. Midwood Ambulance & Oxygen Serv., Inc., 204 A.D.3d 813, 814, 164 N.Y.S.3d 497 ). "Although a sudden stop of the lead vehicle may constitute a nonnegligent explanation for a rear-end collision, 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 vehicle and the vehicle ahead" ( Quintanilla v. Mark, 210 A.D.3d 713, 714, 177 N.Y.S.3d 687 [internal quotation marks omitted]; see Arslan v. Costello, 164 A.D.3d 1408, 1409, 84 N.Y.S.3d 229 ).
Here, the claimant established her prima facie entitlement to judgment as a matter of law on the issue of liability through the deposition testimony of herself and Fitzgerald, which demonstrated that the claimant was stopped for a traffic condition ahead when her vehicle was struck in the rear by the truck operated by Fitzgerald (see Genao v. Cassetta, 214 A.D.3d 626, 627, 182 N.Y.S.3d 904 ; Quintanilla v. Mark, 210 A.D.3d at 714, 177 N.Y.S.3d 687 ). The claimant also established her prima facie entitlement to judgment as a matter of law dismissing the defendant's affirmative defense alleging comparative negligence and culpable conduct on her part by demonstrating that she was not at fault in the happening of the accident (see Seizeme v. Levy, 208 A.D.3d at 811, 174 N.Y.S.3d 421 ). Although Fitzgerald testified that the claimant came to an abrupt stop prior to the collision, he admitted that, just prior to the collision, he took his eyes off the road ahead of him and took his foot off the brake. He further testified that when he looked back in the direction he was traveling, the claimant's vehicle was stopped in front of him. Under these circumstances, the accident was attributable to Fitzgerald's own inattentiveness in taking his eyes off the road in front of him, and not to any negligence on the part of the claimant (see Clarke v. Phillips, 112 A.D.3d 872, 874–875, 978 N.Y.S.2d 281 ; Hauswirth v. Transcare N.Y., Inc., 97 A.D.3d 792, 793, 949 N.Y.S.2d 154 ).
In opposition, the defendant failed to raise a triable issue of fact as to Fitzgerald's negligence or whether the claimant was comparatively at fault in the happening of the accident (see Newfeld v. Midwood Ambulance & Oxygen Serv., Inc., 204 A.D.3d at 814, 164 N.Y.S.3d 497 ). Further, contrary to the defendant's contention, the claimant's motion was not premature (see Quintanilla v. Mark, 210 A.D.3d at 714–715, 177 N.Y.S.3d 687 ). Accordingly, the Court of Claims properly granted the claimant's motion, in effect, for summary judgment on the issue of liability and dismissing the defendant's affirmative defense alleging comparative negligence and culpable conduct on her part.
IANNACCI, J.P., WOOTEN, WARHIT and WAN, JJ., concur.