Opinion
Index No. 502464/18
09-18-2019
HALINA WILK, Plaintiff, v. LIN YINGSHENG and RED BOWL SOUTHERN PINES PNC. Defendants.
Unpublished Opinion
PRESENT: HON. CAROLYN E. WADE, Justice
DECISION/ORDER
Carolyn E. Wade Judge:
Recitation, as required by CPLR §2219(a), of the papers considered in the review of Plaintiffs Motion:
Papers Numbered
Order to Show Cause/Notice of Motion and Affidavits/Affirmations Annexed......................... 1
Cross-Motion and Affidavits/Affirmations........... _
Answering Affidavits/Affirmations...................... 2
Reply Affidavits/Affirmations.............................. _
Memorandum of Law........................................... _
Upon the foregoing cited papers, and after oral argument, plaintiff HALINA WILK moves for an Order granting her summary judgment on the issue of liability against defendants LIN YINGSHENG and RED BOWL SOUTHERN PINES INC.
The underlying action was commenced by plaintiff HALINA WILK ("Plaintiff) as a result of personal injuries that she allegedly sustained as a passenger in an Uber vehicle driven by Boubocar Barry, and owned by Rigo Limo-Auto Corp. Plaintiff alleges that on December 11, 2017, the car that she occupied was stopped at a red light when it was rear-ended by a vehicle driven by defendant LIN YINGSHENG ("Yingsheng"), and owned by co-defendant RED BOWL SOUTHERN PINES INC. ("Red Bowl") (collectively, "Defendants").
A party moving for summary judgment meets its prima facie showing of entitlement to judgment as a matter of law "by tendering sufficient evidence to eliminate any material issues of fact from the case. (St. Claire v. Empire Gen. Const. & Painting Corp., 33 A.D.3d 611 [2d Dept 2006]) [citations omitted]. Once the movant makes its prima facie case, the burden shifts to the opposing party "to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action." Id. (see Zuckerman v. City of New York, 49 N.Y.2d 557 [1980]).
In support of her application, Plaintiff submits, inter alia, the following: 1) a certified copy of a police report, which list Yingsheng as the driver of the alleged offending vehicle, and Red Bowl's name in the registration section; 2) a copy of a sales invoice for a 2017 Infiniti, dated November 22, 2016, which identifies Red Bowl and Yua Lin as the buyers of the vehicle; (Exhibit "5" of Plaintiff s Motion); and 3) insurance documents for the 2017 Infiniti, including an amended declaration, which lists Red Bowl as an insured of Piedmont Insurance and Business Group, for the policy period of June 23, 2016 - June 23, 2017 (Exhibits "3"-"5" of Plaintiff s motion). Thus, Plaintiff argues that liability should be imposed on Red Bowl, as the owner of the offending vehicle. She further asserts that Yingsheng is unable to assert a non-negligent explanation for the accident.
Defendants, in opposition, submit an affidavit from Yingsheng, who concedes that he "tapped" Plaintiffs car when his foot slipped off the brake. Notably, Yingsheng's affidavit is silent regarding his ownership of the subject vehicle. However, the affirmation of Defendants' attorney represents that Red Bowl sold its vehicle to Yingsheng on June 20, 2017- five months before the subject occurrence. To buttress his averment, he submits a copy of Red Bowl and Yua Lin's Certificate of Title. In a section of the document entitled, "First Re-Assignment of Title by Registered Owner," Yingsheng is listed as the buyer; and Hua Lin signed as the seller, on behalf of Red Bowl. A "Motor Vehicle Bill of Sale," was also appended to their submission (Exhibit "A" of Defendants' opposition).
It is well-settled that a rear-end collision with a stopped vehicle "creates a prima facie case of liability with respect to the operator of the rearmost vehicle, thereby requiring that operator to rebut the inference of negligence by providing a non[-]negligent explanation for the collision" (Chepel v. Meyers, 306 A.D.2d 235, 237 [2d Dept 2003]). When the driver of a vehicle approaches another car from the rear, "he or she is bound to maintain a reasonably safe rate of speed and control over his or her vehicle, and to exercise reasonable care to avoid colliding with the other vehicle" Id. at 236.
In the instant case, defendant Yingsheng concedes that his foot slipped off of the brake, and that his car rear-ended the vehicle occupied by Plaintiff. Interestingly, Yingsheng's affidavit is silent as to whether he owned the vehicle that he operated. He does not dispute that the car registration that he presented at the scene of the accident had Red Bowl's name. Moreover, Defendants produce a copy of the Certificate of Title, which documents that Red Bowl is the car owner. The "First Re-Assignment of Title by Registered Owner" section of the document lists Yingsheng's name as the buyer; however, his signature and address are missing. The date that the vehicle was allegedly delivered to him, as well as the notary public's seal are also omitted. Moreover, the Bill of Sale for the vehicle lists the make of the car as an "Infinity" rather than an "Infiniti." Consequently, this Court determines that Red Bowl's alleged transfer of the title to Yingsheng is defective.
Accordingly, based upon the above, Plaintiffs Motion for Summary Judgment on the issue of liability against Defendants is GRANTED. All remaining contentions are hereby rendered meritless and/or moot.
This constitutes the Decision and Order of the court.