Opinion
Index No. 26784/2018E
01-29-2019
JEMAR WAGSTAFFE and SHAKIRA THOMAS, Plaintiffs, v. MICHAELA ALEXANDRA WEKSLER and MILDRED WEKSLER, Defendants.
Unpublished Opinion
DECISION AND ORDER
Hon JOHN R. HIGGITT, A.J.S.C.
The following papers numbered 6 to 11, 27 to 29 and 30 to 31 in the N YSCEF System were read on this motion for SUMMARY JUDGMENT (LIABILITY) (Motion Sequence #1), noticed on November 8, 2018 and duly submitted as No. 52 on the Motion Calendar of November 8,2018 and the following papers numbered 15 to 21 in the NYSCEF System were read on this motion for SUMMARY JUDGMENT (LIABILITY) (Motion Sequence #2) , noticed on November 8, 2018 and duly submitted as No. 54 on the Motion Calendar of November 8, 2018.
| NYSCEF Doc. Nos. | |
| Notice of Motion - Exhibits and Affidavits Annexed (Motion Sequence #1) | 6-11 |
| Notice of Cross-Motion - Exhibits and Affidavits Annexed | |
| Answering Affidavit and Exhibits (Motion Sequence #1) | 27-29 |
| Replying Affidavit and Exhibits (Motion Sequence #1) | 30-31 |
| Notice of Motion - Exhibits and Affidavits Annexed (Motion Sequence #2) | 15-21 |
Upon the foregoing papers, plaintiff Thomas' motion for partial summary judgment on the issue of defendants' liability for causing the subject motor vehicle accident is granted (Motion Sequence #1), and plaintiff Wagstaffe's motion for partial summary judgment on the issue of defendants' liability is granted (Motion Sequence #2), in accordance with the annexed decision and order.
Plaintiffs' respective motions for summary judgment (motion sequences #1 and #2) are consolidated for disposition herein, as they involve common questions of law and fact.
This is a negligence action to recover damages for personal injuries plaintiffs sustained in a motor vehicle accident that occurred on February 1, 2018. Plaintiff Wagstaffe was a passenger in plaintiff Thomas' vehicle when the vehicle operated by Michaela Alexandra Weksler (Michaela) and owned by defendant Mildred Weksler struck plaintiffs' vehicle in the rear. Plaintiffs seek partial summary judgment on the issue of defendants' liability for the subject accident. For the reasons that follow, plaintiffs' motions for summary judgment are granted.
"A rear-end collision with a stationary vehicle creates a prima facie case of negligence requiring a judgment in favor of the stationary vehicle unless defendant proffers a nonnegligent explanation for the failure to maintain a safe distance ... A driver is expected to drive at a sufficiently safe speed and to maintain enough distance between himself [or herself] and cars ahead of him [or her] so as to avoid collisions with stopped vehicles, taking into account weather and road conditions" (LaMasa v Bachman, 56 A.D.3d 340, 340 [1st Dept 2008]). The happening of a rear-end collision is itself a prima facie case of negligence of the rearmost driver in a chain confronted with a stopped or stopping vehicle (see Cabrera v Rodriguez, 72 A.D.3d 553 [1st Dept 2010]).
Vehicle and Traffic Law § 1129(a) states that a "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" (see Darmento v Pacific Molasses Co., 81 N.Y.2d 985, 988 [1993]). Based on the plain language of the statute, a violation is clear when a driver follows another too closely without adequate reason and that conduct results in a collision (id.).
Plaintiffs satisfied their prima facie burdens, establishing their entitlement to judgment as a matter of law on the issue of defendants' liability (see CPLR 3212[b]). Each plaintiff submitted a copy of the pleadings and an affidavit. Plaintiffs averred that they were driving southbound on Clearview Expressway when their vehicle came to a complete stop due to traffic. At that time, defendants' vehicle rear ended plaintiffs' vehicle, causing plaintiffs' injuries.
In opposition, defendants argue that the motion should be denied because plaintiff Thomas made an abrupt stop without engaging her brake lights. Defendants submitted the affidavit of defendant Michaela in which she avers that she was driving behind plaintiff Thomas' vehicle, which was travelling at 30 to 40 miles per hour. Defendant Michaela also averred that she observed plaintiffs' vehicle come to an abrupt stop but did not observe the brake lights illuminate. Defendant Michaela further avers that before the accident her vehicle was more than a car length from the rear of plaintiffs' vehicle. Defendant Michaela, however, offered no explanation for her failure to maintain a safe distance between her vehicle and plaintiffs' vehicle (see Profita v Diaz, 100 A.D.3d 481 [1st Dept 2012]). Because defendant Michaela averred that she saw plaintiffs' vehicle stop even though she did not observe the brake light illuminate, the failure of plaintiffs' brake lights to illuminate does not constitute a non-negligent explanation (see Farrington v New York City Tr. Auth., 33 A.D.3d 332 [1st Dept 2006]]).
Defendants failed to oppose plaintiff Wagstaffe's motion and, therefore, failed to raise a triable issue of material fact (see Zuckerman v City of New York, 49 N.Y.2d 557 [1980]).
The court notes that neither plaintiff sought (and the court has not considered) dismissal of defendants' affirmative defenses of plaintiffs' comparative fault (see CPLR 2214[a]; cf. Poon v Nisanov, 162 A.D.3d 804 [2nd Dept 2018]).
Accordingly, it is
ORDERED, that plaintiff Thomas' motion for partial summary judgment on the issue of defendants' liability is granted; (Motion Sequence # 1) and its further
ORDERED, that plaintiff Wagstaffe's motion for partial summary judgment on the issue of defendants' liability is granted. (Motion Sequence # 2)
This constitutes the decision and order of the court.