Opinion
402612/08.
March 1, 2010.
By notice of motion dated December 24, 2009, plaintiff moves pursuant to CPLR 3212 for an order granting him summary judgment on his claim for damages arising from physical injuries he sustained as a result of a motor vehicle accident. Defendants oppose the motion. For the reasons that follow, plaintiff's motion is granted.
I. UNDISPUTED FACTUAL BACKGROUND
On October 31, 2007, at approximately 8:30 pm, while plaintiff was driving his Toyota in the Lincoln Tunnel, he brought it to a stop when a yellow cone fell onto and under it. After five seconds he felt a bang to the rear end of his car. (Affirmation of H. Bruce Fischer, Esq., dated Dec. 24, 2009 [Fischer Aff.], Exh. A, Affidavit of Syed S. Ali, dated Dec. 17, 2009). Sweeney, who had been driving his sanitation department truck behind plaintiff at 30 miles per hour, heard from behind him a honk and briefly looked into his left rear view mirror. Some 10 to 20 seconds later, he saw that plaintiff's car was stopped and that the brake lights were on. Sweeney then struck plaintiff's car in the middle of the rear portion. ( Id., Exh. E [Transcript of Examination Before Trial of Bryan J. Sweeney, dated Aug. 24, 2009], at 6-14). After the accident, Sweeney saw a cone that appeared to be "broken" under the front of his truck. ( Id.). Sweeney was issued a summons as a result of the accident and he ultimately paid a fine. ( Id., at 22).
II. CONTENTIONS
Plaintiff contends that the undisputed facts demonstrate that Sweeney caused the accident by failing to comply with Vehicle and Traffic Law § 1129(a) which prohibits drivers from following another vehicle "more closely than is reasonable and prudent," and without "due regard for the speed . . . and the traffic upon and the condition of the highway," and that his own abrupt stop does not relieve defendants of liability for the accident. (Fischer Aff.).
Claiming that plaintiff violated Vehicle and Traffic Law § 1123(c), defendants argue that the inference of negligence arising from the rear-end collision with plaintiff's car is rebutted sufficiently to withstand a summary disposition in plaintiff's favor. They ask that plaintiff's affidavit be disregarded as self-serving, contrary to his deposition, and tailored to the instant motion, and maintain that plaintiff is barred from recovery absent serious injury within the meaning of Insurance Law § 5102. (Affirmation of Lynn M. Leopold, Esq., dated Jan. 2010).
III. ANALYSIS
"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 issues of fact from the case." ( Gilbert Frank Corp. v Federal Ins. Co., 70 NY2d 966; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853; Zuckerman v City of New York, 49 NY2d 557, 562). If this burden is not met, summary judgment must be denied, regardless of the sufficiency of the plaintiff's opposition papers. ( Winegrad, 64 NY2d 851, 853).
When the moving party has demonstrated entitlement to summary judgment, the burden of proof shifts to the opposing party which must demonstrate by admissible evidence the existence of a factual issue requiring trial. ( Alvarez v Prospect Hosp., 68 NY2d 320, 324; Zuckerman, 49 NY2d 557, 562). The opposing party must "lay bare" its evidence ( Silbertstein, Awad Miklos v Carson, 304 AD2d 817, 818 [1st Dept 2003]); "unsubstantiated allegations or assertions are insufficient." ( Zuckerman, 49 NY2d 557, 562).
The driver of a motor vehicle approaching another from the rear is required to maintain a reasonably safe rate of speed and control over the vehicle, and exercise reasonable care to avoid colliding with the other vehicle. ( Halakian v McCabe, 38 AD3d 493, 493-494 [2d Dept 2007]; Francisco v Schoepfer, 30 AD3d 275-276 [1st Dept 2006]; Danner v Campbell, 302 AD2d 859, 860 [4th Dept 2003]). By the same token, the driver in front is prohibited, pursuant to section 1123(c) of the Vehicle and Traffic Law, from stopping or suddenly decreasing speed "without first giving an appropriate signal in the manner provided herein to the driver of any vehicle immediately to the rear when there is opportunity to give such signal."
In balancing these seemingly opposing mandates, the law permits the drawing of an inference of negligence on the part of the driver of the approaching vehicle who strikes the rear of the stopped or stopping vehicle. Thus, "[a] rear-end collision with a stopped or stopping vehicle creates a prima facie case of liability with respect to the operator of the moving vehicle and imposes a duty on that operator to come forward with a nonnegligent explanation for the collision." (88 NY Jur 2d, Automobiles § 1066 [2009]; Francisco, 30 AD3d at 275-276).
It has also been held that "[a] claim that the driver of the lead vehicle made a sudden stop, standing alone, is insufficient to rebut the presumption of negligence" (88 NY Jur 2d, Automobiles § 1066; Franco v Breceus, AD3d, 2010 NY Slip Op 00923 [2d Dept 2010]; Staton v Ilic, 69 AD3d 606 [2d Dept 2010]; Zdenek v Safety Consultants, Inc., 63 AD3d 918 [2d Dept 2009]; Jumandeo v Franks, 56 AD3d 614 [2d Dept 2008]; Francisco, 30 AD3d at 276; Mullen v Rigor, 8 AD3d 104 [1st Dept 2004]), and that "[e]vidence that the vehicle which was rear-ended came to a sudden and abrupt stop will defeat summary judgment" ( eg Chepel v Meyers, 306 AD2d 235, 236-237 [2d Dept 2003]).
Here, plaintiff has come forward with evidence that he was struck by Sweeney from behind after he had suddenly stopped due to circumstances which left him no chance to signal any following vehicle beyond the display of brake lights. As his affidavit does not contradict his deposition testimony but supplements it, I need not disregard it. ( Cf Phillips v Bronx Lebanon Hosp., 268 AD2d 318 [1st Dept 2000] [where plaintiff's self-serving affidavits submitted in opposition to motion for summary judgment clearly contradict his deposition testimony and can only be considered to have been tailored to avoid consequences of his earlier testimony, they are insufficient to raise triable issue of fact]). Plaintiff has thus satisfied his burden of establishing, prima facie, Sweeney's negligence in rear-ending him, and the burden of proof shifts to defendants to rebut the presumption of negligence.
Not only did Sweeney concede having seen a cone under his truck immediately after the accident, thereby bolstering plaintiffs allegation that he was caused to brake by a sudden and dangerous event, but he offered no evidence of the distance he kept behind plaintiff immediately before the collision or any facts from which it may be inferred that he had exercised reasonable care to avoid colliding with plaintiff. ( See Jumandeo, 56 AD3d 614 [defendant's contention in opposition to motion that she was traveling at 15 to 20 miles an hour and approximately two car lengths behind plaintiff when plaintiff suddenly stopped neither rebutted inference of negligence nor provided non-negligent explanation of collision]).
From defendants' failure to lay bare their proof, it may be inferred that Sweeney was traveling too close behind plaintiff. And even if Sweeney was not negligent in looking into his rear view mirror just before the collision, there is no evidence that the accident would not otherwise have occurred. Consequently, the inference of Sweeney's negligence remains unrebutted. The decisions cited by defendants are distinguishable.
Finally, as defendants do not cross-move for an order dismissing this action on the ground that plaintiff did not suffer serious injury, I do not address their contention in that regard.
IV. CONCLUSION
Accordingly, it is
ORDERED, that plaintiff's motion for an order granting him summary judgment is granted as to liability only; and it is further
ORDERED, that an assessment of damages against defendant be held; and it is further
ORDERED, that a copy of this order with notice of entry be served on the Clerk of the Trial Support Office (room 158), who is directed, upon the filing of a note of issue and statement of readiness and the payment of proper fees, if any, to place this action on the appropriate trial
calendar for the assessment hereinabove directed.
This constitutes the decision and order of the court.