Opinion
2012-09-28
Martha ARGUETA and Jose Argueta, Plaintiffs, v. Ravinder THIND, Defendant.
Malone, Tauber & Shohn, P.C., for Plaintiffs. Martyn Toher & Martyn, for Defendant.
Malone, Tauber & Shohn, P.C., for Plaintiffs. Martyn Toher & Martyn, for Defendant.
F. DANA WINSLOW, J.
In this personal injury action, plaintiff moves pursuant to CPLR § 3212 for partial summary judgment on the issue of liability.
This action seeks damages for personal injuries allegedly sustained in a motor vehicle accident (the “Accident”) between a vehicle operated by plaintiff MARTHA L. ARGUETA (“ARGUETA”) and a vehicle owned and operated by defendant RAVINDER P. THIND (“THIND”). The Accident occurred on November 16, 2010 at or near the intersection of Sunrise Highway and Mill Road in Valley Stream, New York. Plaintiffs seek summary judgment on the ground that the Accident, a rear-end collision, was caused solely by the negligence of defendant. Defendant argues that the motion is premature insofar as depositions have not yet been held, and that there are issues of fact as to ARGUETA's potential liability which mandate denial of the motion.
In support of their motion for summary judgment, plaintiffs submit (i) a copy of the Summons and Verified Complaint; (ii) an uncertified copy of the Police Accident Report on Department of Motor Vehicles Form MV–104A (the “Police Report”); (iii) the Affidavit of ARGUETA, sworn to on March 19, 2012 (the “ARGUETA Affidavit”); and (iv) the Affirmation in Support of plaintiffs' counsel. In opposition, defendant submits the Affidavit of RAVINDER THIND, sworn to on April 13, 2012 (the “THIND Affidavit”) and the Affirmation in Opposition of defendant's counsel.
It is well settled that a rear-end collision with a stopped vehicle establishes a prima facie case of negligence against the operator of the rear vehicle, shifting the burden to that operator to rebut the inference of negligence by providing a non-negligent explanation for the collision. Napolitano v. Galletta, 85 A.D.3d 881, 925 N.Y.S.2d 163;Franco v. Breceus, 70 A.D.3d 767, 895 N.Y.S.2d 152;Eybers v. Silverman, 37 A.D.3d 403, 830 N.Y.S.2d 240. This rule extends to the situation where the lead vehicle was slowing at the time of the collision. Dattilo v. Best Transp. Inc., 79 A.D.3d 432, 913 N.Y.S.2d 163. Further, at least one lower Court has held that a rear-end collision, in and of itself, gives rise to a presumption of negligence on the part of the following driver, even when both vehicles are in motion, and neither is stopped or slowing. See Leguen v. City of New York, 30 Misc.3d 1235(A), 2011 WL 873554.
The rule is generally said to be predicated on the statutory duty of a following driver to maintain a safe speed and distance between his or her vehicle and the vehicle ahead. See Vehicle & Traffic Law § 1129; See also LaMasa v. Bachman, 56 A.D.3d 340, 869 N.Y.S.2d 17;Pena v. Allen, 272 A.D.2d 311, 707 N.Y.S.2d 643;Mitchell v. Gonzalez, 269 A.D.2d 250, 703 N.Y.S.2d 124;Zakutny v. Gomez, 258 A.D.2d 521, 685 N.Y.S.2d 255. In order to defeat summary judgment in the context of a rear-end collision, the operator of the rear vehicle must present proof in admissible form sufficient to rebut the inference of negligence.
Although the case law states that the defendant must provide a “non-negligent” explanation for the accident, that burden is often met by a showing of negligence on the part of the lead driver, such as the lead driver's failure to signal [Klopchin v. Masri, 45 A.D.3d 737, 738, 846 N.Y.S.2d 311;Drake v. Drakoulis, 304 A.D.2d 522, 756 N.Y.S.2d 881], the lead driver's unexplained stop in moving traffic [Vargas v. Luxury Family Corp., 77 A.D.3d 820, 821, 908 N.Y.S.2d 744;Foti v. Fleetwood Ride, Inc., 57 A.D.3d 724, 725, 871 N.Y.S.2d 215;Chepel v. Meyers, 306 A.D.2d 235, 237, 762 N.Y.S.2d 95], or the lead driver's sudden lane change before the stop [Fajardo v. City of New York, 95 A.D.3d 820, 943 N.Y.S.2d 587;Briceno v. Milbry, 16 A.D.3d 448, 791 N.Y.S.2d 622]. The foregoing and similar cases do not consistently provide whether a showing of negligence on the part of the lead driver rebuts the inference of negligence on the part of the rear driver, or only the inference that such negligence was the sole proximate cause of the accident. That being unanswered, the question of liability is left for the jury to determine.
In the case at bar, plaintiffs set forth a prima facie case of negligence on the part of defendant. ARGUETA states that she was driving westbound on Sunrise Highway in the left lane and that she stopped for a red light at the intersection of Sunrise Highway and Mill Road. When the light turned green, ARGUETA says, she slowly proceeded forward, when her vehicle was suddenly struck in the rear by plaintiff's vehicle. ARGUETA claims that THIND told the police officer at the scene that his brakes were not working. [ See ARGUETA Affidavit ¶ 2.]
Defendant, however, offers a “non-negligent” explanation for the Accident. THIND states that he was driving westbound on Sunrise Highway, and that he approached Mill Road in the left-most lane of two left turn lanes. He proceeded to make a left turn from Sunrise Highway onto Mill Road, when ARGUETA's vehicle, making a “wide turn,” suddenly cut into his lane without any warning signal. The contact occurred in the lane in which THIND had been traveling. The front of THIND's vehicle came into contact with the left rear of ARGUETA's vehicle. THIND denies telling the police officer that his brakes were not working, and claims that, in fact, they were working properly at the time of the Accident. [ See THIND Affidavit ¶¶ 3–7.]
The Police Report is not inconsistent with either version of the Accident, and can be read to support both versions. The Police Report states, as asserted by ARGUETA, that the Accident was a rear-end collision in which the THIND vehicle struck the ARGUETA vehicle. It also indicates, however, that the point of impact was to the front right section of the THIND vehicle and to the left rear section of the ARGUETA vehicle, which is consistent with THIND's account. The admissibility of the Police Report, therefore, does not affect the determination of this motion. [ See Rivera v. GT Acquisition 1 Corp., 72 A.D.3d 525, 899 N.Y.S.2d 46 (Court properly disregarded the uncertified police report as inadmissible hearsay) ].
On a motion for summary judgment, the Court must accept as true the evidence presented by the non-moving party and give the non-moving party the benefit of every favorable inference that may be drawn from the pleadings and proof. Summary judgment is inappropriate where questions of fact or credibility are raised that require a trial. Myers v. Fir Cab Corp., 64 N.Y.2d 806, 486 N.Y.S.2d 922, 476 N.E.2d 321;Fleming v. Graham, 34 A.D.3d 525, 526, 824 N.Y.S.2d 376,revd. on other grounds 10 N.Y.3d 296, 857 N.Y.S.2d 8, 886 N.E.2d 769;Nicklas v. Tedlen Realty Corp., 305 A.D.2d 385, 386, 759 N.Y.S.2d 171 (internal citations omitted).
Here, defendant has raised an issue of fact with respect to the question of plaintiff's culpability. The determination of that question will likely turn on the credibility of the witnesses. The Second Department has held that where plaintiff's freedom from negligence is not established as a matter of law, summary judgment is properly denied. Abbott v. Picture Cars East, 78 A.D.3d 869, 911 N.Y.S.2d 449. The Court notes that a recent decision in the First Department holds to the contrary—that a plaintiff may be granted summary judgment without disproving the affirmative defense of comparative negligence. See Capuano v. Tishman Const. Corp., 98 A.D.3d 848, 950 N.Y.S.2d 517. Although the Court may subscribe to the latter view, it's application in the present circumstances is doubtful. In the case at bar, the allegations with respect to plaintiff's conduct—changing lanes in a dynamic context (not being stopped or stopping)—not only raise issues of fact with respect to plaintiff's culpability, but also raises questions as to the culpability or non-culpability of defendant. Thus, the question of each party's negligence, and the respective apportionment of fault, are properly left to the jury.
In view of the foregoing, it is unnecessary to address defendant's argument that summary judgment is premature. It is therefore
ORDERED, that plaintiffs' motion pursuant to CPLR § 3212 for partial summary judgment on the issue of liability is denied.