Opinion
Index No. 805843/2021E
01-10-2022
YING J. YAN and JIE Y. CAO, Plaintiffs, v. AMERICAN UNITED TRANSPORTATION, INC., YIMING LIN, and MOHAMMED MURSHED, Defendants.
Unpublished Opinion
HON. BEN R. BARBATO JUDGE.
The following two Motions are decided in this same Order: The Motion by Plaintiffs, YING J. YAN and JIE Y. CAO (Seq #1), for partial summary judgment in their favor, as against Defendants, on the issue of liability, and for related relief; and the Motion by Plaintiff on the Counterclaim YAN (Seq #2) for summary judgment in his favor dismissing the Counterclaim on Plaintiff's comparative fault, and for related relief.
This is an action to recover damages for alleged personal injuries sustained by Plaintiffs in a three-vehicle accident which occurred on, or about, March 4, 2021, at about 9:20 p.m., on the Long Island Expressway, westbound, at or near Exit 19, in Queens County, New York. The front-most vehicle was a Lexus operated by Plaintiff YAN, in which Plaintiff CAO was a passenger. The middle vehicle, bearing New York State license plate number T744755C, was operated and owned/leased by Defendants, YIMING LIN and AMERICAN UNITED TRANSPORTATION, INC., respectively. The rear-most vehicle, a Toyota bearing New York State license plate number T749597C, was operated and owned by Defendant MOHAMMED MURSHED.
The submissions include the pleadings, the Affidavit by Plaintiff YAN, and a photograph from a dash camera video.
In Defendant MURSHED's Answer, he asserts a Counterclaim against Plaintiff YAN, seeking indemnification or contribution from Plaintiff due to alleged negligence on the part of the said Plaintiff. Also, in MURSHED's second affirmative defense, he alleges culpable conduct on the part of the Plaintiff.
In the Answer of Defendants UN/AMERICAN, they assert, as their second, and twelfth affirmative defense, that any damages sustained were caused by Plaintiff's culpable conduct, and/or violation of the Vehicle and Traffic Law, respectively. Also, in LIN/AMERICAN's thirteenth affirmative defense, they invoke the emergency doctrine.
Alleged Facts:
Plaintiff YING J. YAN describes the accident as follows:
"At the time of the accident, I was pulled over on the side of the road with my hazard lights flashing. My mother, plaintiff, JIE Y. CAO, was in the front passenger seat. While completely stopped on the side of the road, the vehicle operated by Defendant YIMING LIN struck my vehicle in the rear. This impact caused the vehicle to move forward and my body to jolt forward. I did not hear the sound of any horns, brakes, or screeching of tires prior to the accident. I did not hear any warnings that I was about to be involved in a motor vehicle accident
After this initial impact, the vehicle operated by defendant, MOHAMMED MURSHED, then struck defendant, YIMING UN's, vehicle in the rear, which caused a second impact with my vehicle".
(Plaintiff YAN Affidavit, dated July 23, 2021).
In response to Plaintiffs version of the accident, Defendant MURSHED alleges that Plaintiff's vehicle suddenly stopped, in the middle of the traveling lane of the subject highway, when it was unsafe to do so. In support of his position, Defendant MURSHED submits a photograph, allegedly captured from a dash camera video, purportedly evidencing the same. (NYSCEF Doc Nos. 27 and 31).
It is noted that the subject photograph appears to show, on a dark road, a motor vehicle which is located, mostly, in a travel lane, positioned at an angle, with its right front tire over a solid white line. The vehicle behind it seems to be that of Defendants LIN/AMERICAN, since it bears license plate number T744755C.
Defendants LIN/AMERICAN concur, and allege that they are not, yet, in possession of the full subject dash camera video footage.
Defendants maintain that the motion for summary judgment is premature because discovery has not been exchanged; and that essential facts exist, which cannot yet be stated, since they are in the exclusive knowledge of other parties, whose interests are adverse to their respective positions.
Applicable Law/Analysis:
Vehicle and Traffic Law § 1129(a) "Following too closely", 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."
"It is well settled that a rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the driver of the rear vehicle, and imposes a duty on the part of the operator of the moving vehicle to come forward with an adequate nonnegligent explanation for the accident (see Tutrani v County of Suffolk, 10 N.Y.3d 906, 908, 891 N.E.2d 726, 861 N.Y.S.2d 610 [2008]... Once such a prima facie showing has been made, the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form sufficient to raise material issues of fact which require a trial of the action"(Cabrera v Rodriguez, 72 A.D.3d 553, 553-554 [1st Dept 2010]).
Herein, however, Plaintiffs have not made a prima facie showing of entitlement to partial summary judgment on the issue of the liability of the parties, respectively, because Plaintiff YAN's conclusory statements are too vague concerning key, essential facts, including where, on the expressway, he had stopped his vehicle. Plaintiff YAN merely states that he "was pulled over on the side of the road", but does not specify, for example, whether his vehicle was situated in any part of a travel lane; whether his brake lights were illuminated; what were the road conditions, including as to the slope and curve of the road, the lighting, and the weather; what were the traffic conditions, including as to the vehicles' speed of travel at the relevant times, and the speed limit; and how long YAN's vehicle had been in that position prior to the collision.
"As we have stated frequently, 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 demonstrate the absence of any material issues of fact (Winegrad v New York Univ. Med. Center, 64 N.Y.2d 851, 853; Zuckerman v City of New York, 49 N.Y.2d 557, 562; Sillman v Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 404). Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers (Winegrad v New York Univ. Med. Center, supra, at p 853). Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" [emphasis added]Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324 [1986]).
Even assuming, arguendo, that Plaintiffs herein had make a prima facie showing of entitlement to judgment as a matter of law, summary judgment would be denied, as premature, because discovery has not been exchanged, and essential facts may exist, which cannot yet be stated within the meaning of CPLR 3212 (f) "Facts unavailable to opposing party", which provides that:
"Should it appear from affidavits submitted in opposition to the motion that facts essential to justify opposition may exist but cannot then be stated, the court may deny the motion or may order a continuance to permit affidavits to be obtained or disclosure to be had and may make such other order as may be just."
In this regard, a defendant may have a non-negligent explanation for a rear-end collision, where, for example, a front-most driver stops his vehicle in a travel lane of the Long Island Expressway, where parties reasonably expected that traffic would continue unimpeded. (See Tutrani v County of Suffolk, 10 N.Y.3d 906 [2008]).
Following Tutrani, the First Department held that the sudden stop of the front vehicle, on the Major Deegan Expressway, was sufficient to raise a triable issue of fact as to whether the rear-ending driver had a non-negligent explanation for the accident, because that driver "could have "reasonably expect[ed] that traffic would continue unimpeded" (Tutrani, 10 N.Y.3d at 907), since traffic was flowing smoothly" on the subject highway (Baez-Pena v MM Truck & Body Repair, Inc., 151 A.D.3d 473, 477 [1st Dept 2017]). Also, summary judgment was denied when the testimony raised a triable issue of fact as to whether a defendant was entitled to expect that traffic would continue unimpeded on the Cross Bronx Expressway (Richards v Mitchell, 172 A.D.3d 439, 440 [1st Dept 2019]; see Richards v Mitchell, [Sup Ct, Bronx County Oct. 24, 2018, No. 303620/2016]).
Accordingly, herein, the parties should have the "opportunity to develop the record regarding the factual basis of defendants' [allegations,]... the applicability of which is generally an issue of fact." (Nelson v Bestway Coach Express, 36 A.D.3d 488, 488 [1st Dept 2007]; see Diaz v Jadan, 116 A.D.3d 600 [1st Dept 2014]}; see Belziti v Langford, 105 A.D.3d 649 [1st Dept 2013]; see Yant v Mile Sq. Transp., Inc., 89 A.D.3d 492 [1st Dept 2011]).
Thus, the parties herein, in this multi-vehicle accident which occurred on a highway, should exchange relevant discovery, including conducting depositions, to obtain testimony expounding on the vehicles' locations vis-a-vis the travel lanes, and the traffic and road conditions; and gathering all relevant documents as well as the entire dash camera video.
Accordingly, the Motions are denied, without prejudice to the making of a timely motion, if warranted, after the completion of discovery and the filing of the
Note of Issue. This constitutes the decision and order of this court.