Opinion
Index No. 615831/2020 Motion Seq. Nos. 001-MotD 002 - MG
01-25-2022
JOHN A. VAETH, Plaintiff, v. SAMUEL F. ASHKENAZY and UBER TECHNOLOGIES, INC., Defendants.
PLTF'S/PET'S ATTY: Law Offices of John Coco, PLLC DEFT'S/RESP'S ATTY: Lewis Johns Avallone Aviles, LLP Goldberg Segalla, LLP
Unpublished Opinion
ORIG. RETURN DATE: 01/04/21;01/21/21
ADJOURNED DATE: 11/04/21
PLTF'S/PET'S ATTY: Law Offices of John Coco, PLLC
DEFT'S/RESP'S ATTY: Lewis Johns Avallone Aviles, LLP
Goldberg Segalla, LLP
VINCENT J. MARTORANA, J.S.C.
Upon efiled documents numbered 12-19, 21-22, 26-31, 35-47; it is
ORDERED that Plaintiffs motion seeking partial summary judgment on the issue of liability is granted as against defendant Samuel F. Ashkenazy and his sixth affirmative defense of culpable conduct is dismissed. The portion of Plaintiff s motion seeking partial summary judgment against Uber Technologies, Inc. is denied. Defendant Uber Technologies, Inc.'s cross-motion seeking partial summary judgment dismissing Plaintiff s second cause of action alleging vicarious liability under Vehicle and Traffic Law §388 based upon ownership of the vehicle, is granted.
The within action seeks to recover damages for personal injuries allegedly sustained as a result of a motor vehicle accident that occurred on May 2, 2020. Issue has been joined as to both defendants and Plaintiff now seeks summary judgment on the issue of liability (001). Defendant Uber Technologies, Inc. ("Uber") cross-moves seeking summary judgment (002) dismissing Plaintiff s second cause of action which alleges vicarious liability as against Uber under Vehicle and Traffic Law §388, based upon Uber's alleged ownership of defendant Samuel F. Ashkenazy's ("Ashkenazy") vehicle.
Plaintiff alleges by affidavit that Defendant Ashkanazy's vehicle impacted Plaintiff s vehicle in the rear when Plaintiffs foot was firmly on the brake and his vehicle was fully stopped in traffic for at least ten seconds. Plaintiffs moving papers assert no facts as against Uber. Belatedly, in reply, Plaintiff asserts that at the time of the accident Ashkenazy was in the process of making an Uber Eats delivery. The accident occurred at or near the intersection of Sunrise Highway and Bayview Avenue in the Town of Babylon. Defendant Ashkenazy alleges by affidavit that just prior to the accident.
As both vehicles approached the intersection in the right-hand lane, a tractor-trailer headed in an eastbound direction began to execute a U-turn across all three westbound lanes on Sunrise Highway. At that time, my vehicle was traveling at approximately 30 miles per hour and approximately two to three car lengths behind the vehicle being driven by the plaintiff, John Vaeth. During that time, I continued to keep Mr. Vaeth's vehicle under my constant observation. As the tractor-trailer began to block all three lanes of travel on westbound Sunrise Highway, I observed the brake lights of the black Hyundai illuminate with Mr. Vaeth's vehicle decelerating and coming to an abrupt and almost immediate stop. In response thereto, I immediately applied my brakes and attempted to navigate my vehicle to avoid Mr. Vaeth's rapidly decelerating SUV. Approximately only two to three seconds passed from the time that Mr. Vaeth undertook this abrupt deceleration and immediate stop to the time my vehicle made contact with Mr. Vaeth's SUV.
Although Ashkenazy was aware that a tractor trailer was obstructing the roadway ahead, he asserts that Plaintiff stopped short and is therefore culpable in the happening of the accident. There is no indication that Plaintiffs vehicle stopped an unreasonable distance from the tractor trailer or that there was any other reasonable course of action to avoid colliding with the truck.
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 N.Y.2d 320, 324, 508 N.Y.S.2d 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 N.Y.2d 851, 853,487 N.Y.S.2d 316 11985]). 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 (Vega v Restani Constr. Corp., 18 N.Y.3d 499,942 N.Y.S.2d 13 [2013], Zuckerman v City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595 [1980]). Mere conclusions or unsubstantiated allegations are insufficient to raise a triable issue (see O'Brien v Port Auth. of N.Y. &N.J., 29 N.Y.3d 27, 52 N.Y.S.3d 68 [2017]). The opposing party must "produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" (Stonehill Capital Mgmt., LLC v. Bank of the West., 28 N.Y.3d 439,448,68 NE3d 683, 688 [2016] (quoting Alvarez v Prospect Hosp., 68 N.Y.2d at 324, 508 N.Y.S.2d 923, 501 N.E.2d 572). In deciding the motion, the Court must view all evidence in the light most favorable to the nonmoving party (Ortiz v Varsity Holdings, LLC, 18 N.Y.3d 335, 339, 937 N.Y.S.2d 157 [2011]).
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 (see Rodriguez v City of New York, 31 N.Y.3d 312, 319, 76 N.Y.S.3d 898 [2018]; Poon v Nisanov, 162 A.D.3d 804, 79N.Y.S.3d227 [2d Dept 2018]; Wray v. Galella, 172A.D.3d 1446, 101 N.Y.S.3d401 [2d Dept. 2019]; Hai Ying Xiao v. Martinez, 185 A.D.3d 1014, 126 N.Y.S.3d 369 [2d Dept. 2020]). To be entitled to partial summary judgment, Plaintiff does not bear the burden of proving the absence of his or her own comparative fault (Rodriguez, supra; Outar v. Sumner, 164 A.D.3d 1356, 81 N.Y.S.3d 751 [2d Dept. 2018]; Lopez v. Dobbins, 164 A.D.3d 776,79 N.Y.S.3d 566 [2d Dept. 2018]; Balladares v. City of New York, 177 A.D.3d 942, 944, 114 N.Y.S.3d 448, 451 [2d Dept. 2019]). Culpable conduct on the part of Plaintiff would not preclude recovery, it would only proportionally reduce the amount of damages that could be recovered (CPLR§ 1411; Rodriguez, supra). Therefore, an assertion that Plaintiff is comparatively negligent has no impact, on Plaintiffs prima facie claim of negligence and cannot act as a bar to summary judgment (Rodriguez, supra; Poon, supra; Wray, supra; Maliakel v. Morio, 185 A.D.3d 1018, 129 N.Y.S.3d 99 [2d Dept. 2020]).
Vehicle and Traffic Law §1129(a) provides that, "The 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 vehicles and the traffic upon and the condition of the highway." Every driver has a common law duty to see that which should be seen through the proper use of his or her senses and to exercise reasonable care to avoid colliding with another vehicle (Cicalese v Burier, 123 A.D.3d 1078, 1 N.Y.S.3d 210 [2d Dept 2014]; Bennett v Granata, 118 A.D.3d 652, 987 N.Y.S.2d 424 [2d Dept 2014]; Colpan v Allied Cent. Ambulette, Inc., 97 A.D.3d 776, 948 N.Y.S.2d 124 [2d Dept 2012]; Pollack v Margolin, 84 A.D.3d 1341,924N.Y.S.2d 282 [2d Dept 2011]; Francavilla, supra; Shvydkaya, supra; Laurent v. Bass, 177 A.D.3d 724, 724-25, 113 N.Y.S.3d 252, 253-54 [2d Dept. 2019]). It is the duty of the operator of a motor vehicle to not follow other vehicles more closely than is reasonable and prudent and to maintain awareness of surroundings to avoid colliding with another vehicle. ( Vehicle and Traffic Law § 1129; Vavoulis v Adler, 43 A.D.3d 1154, 842 N.Y.S.2d 526 [2d Dept 2007]; Maxwell v Lobenberg, 227 A.D.2d 598, 643 N.Y.S.2d 1 86 [2d Dept. 1996]; Nsiah-Ababio v Hunter, 78 A.D.3d672, 913 N.Y.S.2d659 [2d Dept. 2010]; Cicalese v Burier, 123 A.D.3d 1078, 1 N.Y.S.3d210 [2d Dept 2014].) "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." (Ortiz v. Hub Truck Rental Corp., 82 A.D.3d 725, 726,918 N.Y.S.2d 156, 157 [2d Dept. 2011] (quoting Nsiah-Ababio v Hunter, 78 A.D.3d672, 672, 913 N.Y.S.2d 659); see also Strickland v. Tirino, 99 A.D.3d 888, 952 N.Y.S.2d 599 [2d Dept. 2012]; Hauswirth v. Transcare New York, Inc., 97 A.D.3d 792, 949 N.Y.S.2d 154 [2d Dept. 2012]; Martinez v. Martinez, 93 A.D.3d 767, 941 N.Y.S.2d 189 [2d Dept. 2012]). A rear end collision with a stopped or stopping vehicle gives rise to a claim of prima facie negligence on the part of the rear vehicle, shifting the burden to the rear vehicle driver to establish a non-negligent cause for the collision (Hauswith v Transcare New York, Inc, 97 A.D.3d 792,949N.Y.S.2d 154, [2d Dept 2012]; Leal v Wolff 224 A.D.2d 392, 638 N.Y.S.2d 110 [2d Dept. 1996]).
Here, Plaintiff has made a prima facie case of entitlement to judgment as a matter of law with respect to the liability of Ashkenazy. In the context of the version of events set forth by Ashkenazy, the claim that Plaintiff "stopped short" is insufficient to raise a triable issue of fact. Summary judgment is granted to Plaintiff on the issue of Ashkenazy's liability and Ashkanazy's sixth affirmative defense of culpable conduct is dismissed. The portion of Plaintiffs motion seeking summary judgment as against Uber is denied. Plaintiff alleged no facts whatsoever as against Uber in its initial moving papers with respect to its two vicarious liability claims or its negligent hiring and retention claim. Plaintiff failed to make a prima facie case of entitlement to judgment as a matter of law in this regard. Any arguments offered for the first time in reply or in opposition to Uber's cross-motion will not be considered to bolster Plaintiffs motion. Furthermore, the evidence in the record establishes that Uber did not own Ashkenazy's vehicle, Ashkenazy owned it. Accordingly, Uber's motion seeking summary judgment dismissing Plaintiffs second cause of action which alleges liability based upon Uber being the owner of the vehicle, pursuant to Vehicle and Traffic Law §388, is granted.