Opinion
16-608818
03-20-2019
Nicole UMBREIT, Plaintiff, v. Tomasa Y. FUENTES, Defendant.
DAY & ASSOCIATES, P.C., Attorney for Plaintiff, 1710 Hempstead Turnpike, East Meadow, New York 11554 RUSSO & TAMBASCO, Attorney for Defendant, 115 Broad Hollow Road, Suite 300, Melville, New York 11747
DAY & ASSOCIATES, P.C., Attorney for Plaintiff, 1710 Hempstead Turnpike, East Meadow, New York 11554
RUSSO & TAMBASCO, Attorney for Defendant, 115 Broad Hollow Road, Suite 300, Melville, New York 11747
Sanford N. Berland, J.
Upon the following papers read on this motions for partial summary judgment: Notice of Motion and supporting papers by the plaintiff dated October 1, 2018; Affidavits and supporting papers by the defendant dated October 5, 2018; and Replying Affidavits and supporting papers by the plaintiff dated October 25, 2018; it is,
ORDERED that the motion by plaintiff Nicole Umbreit for partial summary judgment in her favor on the issue of defendant's liability is granted.
This action was commenced by plaintiff Nicole Umbreit to recover damages for injuries she allegedly sustained on March 8, 2016, when her motor vehicle was struck in the rear by a motor vehicle operated by defendant Tomasa Y. Fuentes while traveling on Route 110 in Amityville, New York.
Plaintiff now moves for partial summary judgment in her favor, arguing that defendant's actions were the sole proximate cause of her alleged injuries. In support of her motion plaintiff submits copies of the pleadings, transcripts of the parties' deposition testimony, and a certified copy of an MV-104A police accident report.
Plaintiff testified that at approximately 6:00 a.m. on the date in question, she was operating a motor vehicle northbound on Route 110, a roadway with two lanes of travel in each direction, heading toward her place of employment in Plainview, New York. She indicated that the weather was clear and that the traffic was light. Upon questioning, plaintiff explained that when she first began traveling on Route 110 she was in the right lane of traffic, but soon moved into the left lane and continued in that lane until the time of the accident. She stated that she was operating her vehicle at approximately 30 miles per hour when she observed a silver-colored truck in her rear-view mirror. Plaintiff testified that as she drove forward at a steady rate of speed, not slowing or stopping her vehicle, she heard "screeching brakes" and was struck in the rear by the silver truck.
At her deposition, defendant gave a somewhat different account of the incident. She testified that on the date in question, she was operating her motor vehicle northbound on Route 110, having entered that roadway from Route 27 West, and that she first observed plaintiff's blue Ford traveling northbound in the left lane of Route 110 as she entered Route 110 from Route 27. Defendant stated that she continued driving in the right lane until she reached Route 110's intersection with Smith Street, and that after passing through that intersection, she moved her vehicle into the left lane of Route 110 because plaintiff had "cut" in front of her in the right lane, at the same time making an obscene finger gesture inside her vehicle with her upraised right hand. Defendant testified that after she moved her vehicle into the left lane, plaintiff "again ... cut me and again moved to the left lane," about three car lengths ahead of her. Defendant further testified that although she had "wanted to pass her cause I was thinking this is a crazy woman or a crazy man so I just wanted to go," after plaintiff "wouldn't let me through," she "let her go. I though to myself, she's crazy so I let her go." Defendant remained in the left northbound lane of Route 110, with plaintiff traveling ahead of her, for the next four or five minutes, at which point what defendant described as a "very big huge truck" entered Route 110 from a driveway on the highway's right side. Defendant testified that as the truck turned into the roadway, it obstructed both lanes of Route 110, forcing plaintiff's vehicle to an abrupt stop. Defendant stated that when she observed plaintiff's vehicle stop in response to the truck entering Route 110, she applied "heavy" pressure to her brakes and collided with the rear of plaintiff's vehicle. Asked to describe the severity of the resultant impact, defendant described it as "light," despite her vehicle subsequently being declared "totaled" by her insurance company.
A party moving for summary judgment "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 Hosp. , 68 NY2d 320, 324, 508 NYS2d 923 [1986] ). Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers ( Winegrad v. New York Univ. Med. Ctr. , 64 NY2d 851, 853, 487 NYS2d 316 [1985] ). If the moving party produces the requisite evidence, the burden then shifts to the nonmoving party to establish the existence of material issues of fact which require a trial of the action (see Vega v. Restani Constr. Corp. , 18 NY3d 499, 942 NYS2d 13 [2012] ; Zuckerman v. City of New York , 49 NY2d 557, 427 NYS2d 595 [1980] ). Mere conclusions or unsubstantiated allegations are insufficient to raise a triable issue (see O'Brien v. Port Auth. of NY & N.J. , 29 NY3d 27, 52 NYS3d 68 [2017] ). In deciding the motion, the Court must view all evidence in the light most favorable to the nonmoving party (see Ortiz v. Varsity Holdings, LLC , 18 NY3d 335, 339, 937 NYS2d 157 [2011] ).
A plaintiff "is no longer required to show freedom from comparative fault in order to establish his [or her] prima facie entitlement to judgment as a matter of law on the issue of liability" ( Merino v. Tessel , 166 AD3d 760, 760, 87 NYS3d 554 [2d Dept 2018] ; see Rodriguez v. City of New York , 31 NY3d 312, 76 NYS3d 898 [2018] ). The Vehicle and Traffic Law establishes standards of care for motorists, and an unexcused violation of such standards of care constitutes negligence per se (see Shui-Kwan Lui v. Serrone , 103 AD3d 620, 959 NYS2d 270 [2d Dept 2013] ; Barbieri v. Vokoun , 72 AD3d 853, 900 NYS2d 315 [2d Dept 2010] ).
The 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" ( Auguste v. Jeter , 167 AD3d 560, 560, 88 NYS3d 509 [2d Dept 2018], quoting Nsiah-Ababio v. Hunter , 78 AD3d 672, 672, 913 NYS2d 659 [2d Dept 2010] ; see Vehicle and Traffic Law § 1129 [a] ). "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, requiring that operator to come forward with evidence of a non-negligent explanation for the collision in order to rebut the inference of negligence" ( Cortese v. Pobejimov , 136 AD3d 635, 636, 24 NYS3d 405 [2d Dept 2016] ; see Tutrani v. County of Suffolk , 10 NY3d 906, 861 NYS2d 610 [2008] ). Examples of such non-negligent explanations include mechanical failure, a sudden, unexplained stop of the vehicle ahead, an unavoidable skidding on wet pavement or any other reasonable cause ( Tumminello v. City of New York , 148 AD3d 1084, 49 NYS3d 739 [2d Dept 2017] ; see also Foti v. Fleetwood Ride, Inc. , 57 AD3d 724, 871 NYS2d 215 [2d Dept 2008] ; Klopchin v. Masri , 45 AD3d 737, 846 NYS2d 311 [2d Dept 2007] ; Filippazzo v. Santiago , 277 AD2d 419, 716 NYS2d 710 [2d Dept 2000] ). It is also well settled that when a driver of a motor vehicle approaches another automobile from the rear, he or she not only is bound to maintain a safe rate of speed, but also has the duty to keep control over his or her vehicle and to exercise reasonable care to avoid colliding with the other vehicle ( Carhuayano v. J & R Hacking , 28 AD3d 413, 813 NYS2d 162 [2d Dept 2006] ; Gaeta v. Carter , 6 AD3d 576, 775 NYS2d 86 [2d Dept 2004] ; see also Vehicle and Traffic Law § 1129 [a] ). Moreover, an operator of a motor vehicle has a "common-law duty to see that which [he or she] should have seen through the proper use of [his or her] senses" ( Botero v. Erraez , 289 AD2d 274, 275, 734 NYS2d 565, 566 [2d Dept 2001] ; see also Ferrara v. Castro , 283 AD2d 392, 724 NYS2d 81 [2d Dept 2001] ).
Here, plaintiff established a prima facie case of entitlement to partial summary judgment on the issue of defendant's negligence (see Merino v. Tessel , supra ; see Rodriguez v. City of New York , supra ; see generally Alvarez v. Prospect Hosp. , supra ). Notwithstanding the marked differences in the parties' respective accounts of the circumstances antecedent to the collision, it is undisputed that both vehicles were traveling in the same lane of track for some period of time prior to the collision and that defendant's vehicle struck the rear of plaintiff's vehicle. Thus, the burden shifted to defendant to raise a triable issue with respect to her own claimed negligence and whether it was a proximate cause of the collision (see Cortese v. Pobejimov , supra ; see generally Vega v. Restani Constr. Corp. , supra ).
Defendant has failed to do so. In opposition to plaintiff's motion, defendant argues that plaintiff's "erratic behavior contributed to the happening of this accident by causing a distraction to both herself and defendant and by preventing the defendant from maintaining a safe travel distance away from the plaintiff." Again, the Court of Appeals has made clear, however, that a plaintiff need not demonstrate her own freedom from comparative fault in order to obtain partial summary judgment on the issue of liability against a defendant whose conduct is shown, prima facie, to have been both tortious and a proximate cause of the plaintiff's injury (Rodriguez v. City of New York , supra , 31 NY3d 323). Although it may well be that the jury, if it credits defendant's account of the events leading up to the accident, will attribute a proportion of plaintiff's damages to her own culpable conduct, it cannot be said here that her conduct at the time the accident occurred, as described by defendant, was so egregious or reckless as to constitute, as a matter of law, the sole cause of her injuries, thereby absolving the defendant of any liability (compare Manning by Manning v. Brown , 91 NY2d 116, 122 [1997] ("plaintiff's active participation in joyriding in the circumstances presented here was such a serious violation of the law as to preclude recovery for injuries stemming directly from the violation"); Hathaway v. Eastman , 122 AD3d 964, 967 [3d Dept 2014] ("[g]iven all the relevant facts and circumstances admitted by plaintiff" - a passenger in a vehicle that had been engaged in a drag race when it struck a tree - "we agree with Supreme Court that public policy precludes a recovery"); and Thomas v. City of New York , 16 AD3d 203, 203-04 [1st Dept 2005] (facts supported jury's "finding that plaintiff's attempt at a one-legged vault over the depression was so unsafe and unreasonable as to constitute the sole cause of her accident"), with Soto v. New York City Tr. Auth. , 6 NY3d 487, 492 [2006] ("[p]laintiff's conduct was undeniably reckless, but the jury appropriately considered plaintiff's actions and determined that he bore a far greater share of the fault. This is in keeping with the doctrine of comparative negligence (see CPLR 4211 )"). Further, defendant herself testified that plaintiff stopped her vehicle in response to the a large truck entering their respective vehicles' lane of travel; accepting that version of events as true, plaintiff's stop was in response to traffic conditions and, therefore, not "unexplained" within the meaning of Tumminello v. City of New York , supra . Thus, defendant had a duty to remain a safe distance behind plaintiff and to avoid colliding with her (see Auguste v. Jeter , supra ).
Accordingly, plaintiff's motion for partial summary judgment with respect to defendant's negligence is granted.