Opinion
Index 603589/2017
09-05-2019
JEFFREY S. WASSERMAN, Plaintiff, v. DAVID BOURGADE AND DANIELLE BOURGAGE, Defendant. Motion Seq. No. 001 - MG
Unpublished Opinion
DECISION AND ORDER
HON. LINDA KEVINS, J.S.C.
The following papers have been read on this Motion by Plaintiff:
Notice of Motion, Affirmation, Affidavit & Exhibits................................ 1
Affirmation in Opposition & Memorandum of Law.................................. 2
Reply Affirmation........................................................................ 3
Upon the foregoing papers, it is Ordered that this Motion is decided as follows:
Plaintiff seeks an Order granting Summary Judgment against Defendants pursuant to CPLR 3212. Defendants oppose the Application.
Plaintiff Jeffrey S. Wasserman commenced this action to recover damages for personal injuries allegedly sustained in a motor vehicle accident that occurred on September 22, 2015, while traveling westbound in the left lane of the Long Island Expressway near exit 46, Suffolk County, New York. Plaintiff alleges the accident occurred when Defendant Danielle Bourgade, operating a 2008 Ford vehicle owned by Defendant David Bourgade, struck the rear of the vehicle Plaintiff was operating, a 2015 Audi. Issue has been joined.
Plaintiff now moves for an order granting summary judgment in his favor on the issue of liability. In support of the motion, Plaintiff submits copies of the pleadings, bill of particulars, and verified answer. Defendant opposes the motion and submits an affirmation in opposition.
The proponent of a summary judgment motion must make a. prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issue of fact (see Alvarez v Prospect Hosp., 68 N.Y.2d 320 [1986]; Winegrad v New York Univ. Med Ctr., 64 N.Y.2d 851 [1985]). The burden then shifts to the party opposing the motion which must produce evidentiary proof in admissible form sufficient to require a trial of the material issues of fact (Roth v Barreto, 289 A.D.2d 557 [2d Dept 2001]; Rebecchi v Whitmore, 172 A.D.2d 600 [2d Dept 1991 ]; O'Neill v Town of Fishkill, 134 A.D.2d 487 [2d Dept 1987]).
It is well settled that a driver has a duty to maintain control of their vehicle so that when approaching another vehicle from the rear, the driver is bound to maintain a reasonably safe rate of speed, and to use reasonable care to avoid colliding with the other vehicle (see Tutrani v County of Suffolk, 64 A.D.3d 53 [2d Dept 2009]; Gaeta v Carter, 6 A.D.3d 576 [2d Dept 2004]; Chepal v Meyers, 306 A.D.2d 235 [2d Dept 2003]). Drivers must maintain safe distances between their cars and cars in front of them (Vehicle and Traffic Law § 1129 [a]) and this rule imposes on them a duty to be aware of traffic conditions, including vehicle stoppages, to see what should be seen and to exercise reasonable care under the circumstances to avoid an accident (see Johnson v Phillips, 261 A.D.2d 269 [1st Dept 1999]). Thus, the occurrence of a rear-end collision with a stopped or stopping vehicle creates a prima facie case of negligence on the part of the operator of the following vehicle and imposes a duty on that operator to come forward with a non-negligent explanation for the collision (see Hauser v Adamov, 74 A.D.3d 1024 [2d Dept 2010]; Arias v Rosario, 52 A.D.3d 551 [2d Dept 2008]; Leal v Wolff, 224 A.D.2d 392 [2d Dept 1996]). This burden is placed on the driver of the offending vehicle, as he or she is in the best position to explain whether the collision was due to a mechanical failure, a sudden stop of the vehicle ahead, unavoidable skidding on wet pavement, or some other reasonable cause (see Abbott v Picture Cars K, Inc., 78 A.D.3d 869 [2d Dept 2010]; DeLouise v S.K.I. Wholesale Beer Corp, 75 A.D.3d 489 [2d Dept 2010]; Moran v Singh, 10 A.D.3d 707 [2d Dept 2004]; Barile v Lazzarini, 222 A.D.2d 635 [2d Dept 1995]).
Plaintiff alleges that he was involved in a motor vehicle accident during rush hour which occurred on September 22, 2015, while traveling westbound in stop and go traffic on the Long Island Expressway approaching Exit 46 in Suffolk County, New York. Plaintiff claims the traffic was stop and go and that as he approached the exit, he gradually came to a stop and at that time his vehicle was struck from behind by the Defendant Danielle Bourgade. Plaintiff states she did nothing to cause the accident and was stopped at the time.
Here, Plaintiffs submissions are sufficient to make a prima facie showing of entitlement to summary judgment on the issue of liability (see Kastritsios v Marcello, 84 A.D.3d 1174 [2d Dept 2011]; Bernier v Torres, 79 A.D.3d 776 [2d Dept 2010]; Mandel v Benn, 67 A.D.3d 746 [2d Dept 2009]). The burden, then, shifted to Defendant to offer a non-negligent explanation for the accident sufficient to raise a triable issue of fact (see Emil Norsic & Son, Inc. v L.P. Transp., Inc., 30 A.D.3d 368 [2d Dept 2006]; Rainford v Han, 18 A.D.3d 638 [2d Dept 2005]).
In opposition to Plaintiffs motion, Defendants submit an affirmation of counsel, which does not provide a non-negligent explanation for failure to avoid impact with the rear of Plaintiffs vehicle. The affirmation of Defendants' attorney is insufficient to defeat summary judgment, because it lacks evidentiary value since he has no personal knowledge of the facts (see Zuckerman v City of New York, 49 N.Y.2d 557 [1980]). Furthermore, the contention that Plaintiffs motion is premature because depositions have not yet been conducted does not establish what information Defendants believe will be discovered at those depositions which would relieve them of liability (see Cajas-Romero v Ward, 106 A.D.3d 850 [2d Dept 2013]). "[T]he mere hope or speculation that evidence sufficient to defeat a motion for summary judgment may be uncovered during the discovery process is insufficient to deny the motion" (Lopez v WS Distrib., Inc., 34 A.D.3d 759 [2d Dept 2006]). Thus, Defendants have not met their burden.
Accordingly, the Plaintiffs Motion for Summary Judgment in favor of Plaintiff on the issue of liability is granted.
Accordingly, it is hereby
ORDERED, that Plaintiffs Motion for partial summary judgment on the issue of liability is GRANTED; and it is further
ORDERED, that all Parties' Counsel and if no counsel then the Parties, are directed to appear before the Court in IAS Part 29, located at the Alan D. Oshrin Courthouse, One Court Street, Riverhead, New York 11901, on Tuesday, OCTOBER 22, 2019, at 9:30 A.M., for a compliance conference; and it is further
ORDERED, that non-appearance will not be countenanced by the Court and may subject the non-appearing Party to one or more of the sanctions pursuant to 22 NYCRR §§ 202.27 and 130-2; and it is further
ORDERED, that at the call of the calendar, if any Party does not appear or proceed or announce their readiness to proceed, the Court shall consider an Order pursuant to 22 NYCRR § 202.27 as follows: (a) if the Plaintiff appears but the Defendant does not, the Court shall consider granting judgment by default and order an inquest; (b) if the defendant appears but the Plaintiff does not, the Court shall consider a dismissal of the action and order a severance of counterclaims; and (c) if no Party appears, the Court shall make such order as appears just; and it is further
ORDERED, that the Parties and their Counsel, if any, comply with Part 29 Court Rules, https://www.nycourts.gov/courts/10jd/suffolk/SC_Part_Rules/Kevins.pdf; and it is further
ORDERED, that Plaintiff(s) is/are directed to immediately serve a certified copy of this Order, pursuant to CPLR §§8019(c) and 2105, upon the Suffolk County Clerk; and it is further
ORDERED, that upon Entry of this Order by the Suffolk County Clerk, Plaintiff(s) is/are directed to serve, forthwith, a copy of this Order with Notice of Entry upon all parties and to promptly file the Affidavit(s) of Service with the Clerk of the Court.
Any requested relief not specifically granted herein is hereby DENIED.
This constitutes the Decision and Order of this Court.