Opinion
No. 605073/2019E Motion Sequence No. 001; MG
10-30-2019
Jean Arrospide, Plaintiff, v. Russel J. Murphy, Defendant.
Attorney for Plaintiff: Brian J. Levy & Associates, PC Attorney for Defendant: Gentile & Tambasco
Unpublished Opinion
Attorney for Plaintiff: Brian J. Levy & Associates, PC
Attorney for Defendant: Gentile & Tambasco
HON. WILLIAM B. REBOLINI, J.S.C.
Upon the E-file document list numbered 9 to 17 read on plaintiff s application for an order granting summary judgment on liability pursuant to CPLR 3212; it is
ORDERED that plaintiffs motion for summary judgment on liability is granted.
This is a personal injury action arising from a motor vehicle accident alleged to have occurred on January 16, 2018 at approximately 6:55 p.m. on Interstate 495 approximately .25 miles west of Route 110 in Suffolk County, New York. Plaintiff commenced this action by the filing of a summons and complaint on March 15, 2019 and alleges therein that defendant's vehicle struck his vehicle in the rear. Issue was joined on May 23, 2019 by the service of an answer. A preliminary conference, was held on July 10, 2019. Plaintiff now moves for summary judgment on the issue of liability and submits in support thereof an affirmation of counsel, a sworn affidavit, a copy of the pleadings, verified bill of particulars, and the police report. Defendant opposes the motion and plaintiff replies.
It is well settled that a party moving for summary judgment 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, 508 N.Y.S.2d 923 [1986]; Friends of Animals v. Associated Fur Mfrs., 46 N.Y.2d 1065, 1067, 416 N.Y.S.2d 790 [1979]). The failure of the moving party to make a prima facie showing requires the denial of the motion regardless of the sufficiency of the opposing papers (see Winegrad v. New York Univ. Med. Ctr.,64 N.Y.2d 851,487 N.Y.S.2d 316 [1985]). However, once the movant has made the requisite showing, the burden then shifts to the party opposing the motion to produce evidentiary proof in admissible form sufficient to require a trial on any material issue of fact (Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595 [1980]. To defeat a motion for summary judgment, a party opposing such motion must lay bare his proof in evidentiary form; conclusory allegations are insufficient to raise a triable issue of fact (see Friends of Animals, Inc. v. Associated Fur Mfrs., 46 N.Y.2d 1065, 416 N.Y.S.2d 790; Burns v. City of Poughkeepsie, 293 A.D.2d 435, 739 N.Y.S.2d 458 [2d Dept 2002]). In deciding the motion, the Court must view all evidence in the light most favorable to the nonmoving party (Nomura, supra; see also Ortiz v. Varsity Holdings, LLC, 18 N.Y.3d 335, 339, 937 N.Y.S.2d 157 [2011]). A motion for summary judgment should be denied where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility (see Chimbo v. Bolivar, 142 A.D.3d 944, 37 N.Y.S.3d 339 [2d Dept 2016]; Benetatos v. Comerford, 78 A.D.3d 730, 911 N.Y.S.2d 155 [2d Dept. 2010]).
When a driver approaches another vehicle from the rear, he is bound to maintain a reasonably safe rate of speed and to maintain control of his vehicle and use reasonable care to avoid colliding with the other vehicle (Vehicle and Traffic Law § 1129 [a]; Gallo v. Jairath, 122 A.D.3d 795, 996 N.Y.S.2d 682 [2d Dept 2014]; Cajas-Romero v. Ward, 106 A.D.3d 850, 965 N.Y.S.2d 559 [2d Dept 2013]; Nsiah-Ababio v. Hunter, 78 A.D.3d 672, 913 N.Y.S.2d 659 [2d Dept 2010]). A driver is negligent in failing to see that which under the facts and circumstances he should have seen by the proper use of his senses (see Barbieri v. Vokoun, 72 A.D.3d 853, 900 N.Y.S.2d 315 [2d Dept. 2010]; Domanova v. State of New York, 41 A.D.3d 633, 838 N.Y.S.2d 644 [2d Dept. 2007]; Lester v Jolicofur et al, 120 A.D.2d 574; 502 N.Y.S.2d 61 [2d Dept 1986]). The occurrence of a rear-end collision with a stopped or stopping vehicles creates a prima facie case of negligence on the part of the operator of the rear vehicle and imposes a duty on that operator to come forward with a non-negligent explanation for the collision (Montalvo v. Cedeno, 170 A.D.3d 1166, 96 N.Y.S.3d 638 [2d Dept. 2019],McLaughlin v Lunn, 137 A.D.3d 757, 26 N.Y.S.3d 338 [2d Dept 2016]; Cheow v Cheng Lin Jin, 121 A.D.3d 1058, 995 N.Y.S.2d 186 [2d Dept 2014]; Perez v Roberts, 91 A.D.3d 620, 936 N.Y.S.2d 259 [2d Dept 2012]; Volpe v Limoncelli, 74 A.D.3d 795, 902 N.Y.S.2d 152 [2d Dept 2010]; Ramirez v Konstanzer, 61 A.D.3d 837, 878 N.Y.S.2d 381 [2d Dept 2009]). This burden is placed on the driver of the rear vehicle because he 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 (Sayyed v. Murray, 109 A.D.3d 464, 970 N.Y.S.2d 279 [2d Dept 2013]; Fajardo v. City of New York, 95 A.D.3d 820, 943 N.Y.S.2d 587 [2d Dept 2012]). "Vehicle stops which are foreseeable under the prevailing traffic conditions, even if sudden and frequent, must be anticipated by the driver who follows, since he or she is under a duty to maintain a safe distance between his or her car and the car ahead" (Volpe v. Limoncelli, supra at 795-796,902 N.Y.S.2d 152 [2d Dept 2010], quoting Shamah v. Richmond County Ambulance Serv., 279 A.D.2d 564, 565, 719 N.Y.S.2d 287 [2d Dept 2001]; see Gutierrez v. Trillium, USA, LLC, 111 A.D.3d 669, 974 N.Y.S.2d 563 [2d Dept 2013]; Kimyagarov v. Nixon Taxi Corp., supra). Thus, the assertion that the lead car suddenly stopped, by itself, is insufficient to rebut the presumption of negligence by the rear vehicle (see Waide v. Ari Fleet, LT, 143 A.D.3d 975,39 N.Y.S.3d 512 [2d Dept. 2016]; Brothers v. Bartling, 130 A.D.3d 554, 13 N.Y.S.3d 202 [2d Dept. 2015](assertion of a "sudden stop" is insufficient to provide a non-negligent explanation); LeGrand v. Silberstein, 123 A.D.3d 773, 999 N.Y.S.2d 96 [2d Dept. 2014]; Gutierrez v. Trillium USA, LLC, 111 A.D.3d 669, 974 N.Y.S.2d 563 [2d Dept. 2013]; Volpe v. Limoncelli, supra at 795-796, 902 N.Y.S.2d 152 [2d Dept 2010], quoting Shamah v. Richmond County Ambulance Serv., 279 A.D.2d 564, 565, 719 N.Y.S.2d 287 [2d Dept 2001]Animah v. Agyei, 63 Misc.3d 783, 97 N.Y.S.3d 440 [Bronx Cty. 2019]). If the operator of the rear vehicle cannot come forward with evidence to rebut the inference of negligence, then the plaintiff is entitled to summary judgment (Gibson v Levine, 95 A.D.3d 1071, 944 N.Y.S.2d 6 10 [2d Dept 2012]; Kimyagarov v. Nixon Taxi Corp., 45 A.D.3d 736, 846 N.Y.S.2d 309 [2d Dept 2007]). A plaintiff may obtain partial summary judgment on the issue of liability without demonstrating the absence of his or her own comparative fault (Rodriguez v. City of New York, 31 N.Y.3d 312, 76 N.Y.S.3d 898 [2018]; Poon v. Nisanov, 162 A.D.3d 804, 79 N.Y.S.3d 227 [2d Dept 2018]; Edgerton v. City of New York, 160 A.D.3d 809, 74 N.Y.S.3d 617 [2d Dept 2018]).
Generally, an uncertified MV-104 police accident report constitutes hearsay and is inadmissible, unless it is subject to an exception to the hearsay rule (see Siemucha v. Garrison, 111 A.D.3d 1398,1399, 975 N.Y.S.2d 518 [4th Dept. 2013]; see also Lacagnino v. Gonzalez, 306 A.D.2d 250, 760 N.Y.S.2d 533 [2d Dept. 2003]; Hegy v. Coller, 262 A.D.2d 606, 692 N.Y.S.2d 463 [2d Dept. 1999]). Here, however, the police accident report contains a statement by defendant that he "bumped" plaintiff s rear bumper, which is admissible under the admission against interest exception to the hearsay rule (see Harrinarain v. Sisters of St. Joseph, 173 A.D.3d 983, 104 N.Y.S.3d 661 [2d Dept. 2019]; Lebron v. Mensalt, 161 A.D.3d 972,76 N.Y.S.3d 219 [2d Dept. 2018]; Jackson v. Trust, 103 A.D.2d 851,852,962 N.Y.S.2d 267 [2d Dept. 2013]; Scott v. Kass, 48 A.D.3d 785,851 N.Y.S.2d 649 [2d Dept. 2008]; Wu v. Continental Truck body Corp., 2019 NY Slip Op. 30571, 2019 WL 1093458 [Sup. Ct. NY Cty. 2019]). This admission, as well, supports the facts as presented by plaintiff (see Rosenblatt v. Venizelos, 49 A.D.3d 519, 853 N.Y.S.2d 578 [2d Dept. 2008]; see also Lariviere v. New York City Transit Authority, 82 A.D.3d 1165, 920 N.Y.S.2d 231 [2d Dept. 2011]).
Here, plaintiff has established his prima facie entitlement to summary judgment through a sworn affidavit that his vehicle was struck in the rear by the vehicle operated by defendant (see Rodriguez v. City of New York, 31 N.Y.3d 312,76 N.Y.S.3d 898 [2018]; Binkowitz v. Kolb, 135 A.D.3d 884, 24 N.Y.S.3d 186 [2d Dept. 2016]; Volpe v Limoncelli, supra; Johnson v. Spoto, 47 A.D.3d 888, 850 N.Y.S.2d 204 [2d Dept. 2008]). Plaintiff further averred through his affidavit that he did not make any sudden stops or abruptly change lanes and that his vehicle was in perfect working condition.
Having made the requisite prima facie showing of entitlement to summary judgment, the burden shifts to defendant to rebut the presumption of negligence or raise a triable issue of fact or offer a non-negligent explanation for the accident (see Bene v. Dalessio, 135 A.D.3d 679,22 N.Y.S.3d 237 [2d Dept. 2016]; Cortes v. Whelan, 83 A.D.3d 763, 922 N.Y.S.2d 419 [2d Dept. 2011]; Balducci v. Velasquez, 92 A.D.3d 626, 938 N.Y.S.2d 178 [2d Dept. 2012]). Defendant failed to submit any evidence in admissible form to raise a triable issue of fact (see Poon v Nisanov, 162 A.D.3d 804,79 N.Y.S.3d 227 [2d Dept 2018]). In that regard, the affirmation of defendant's attorney has no probative value (see Cullin v. Spiess, 122 A.D.3d 792,997 N.Y.S.2d 460 [2d Dept 2014]). Further, when a party fails to oppose matters advanced on a motion, the facts alleged in the moving papers may be deemed admitted by the Court (Kuehne & Nagel, Inc. v. Baiden, 36 N.Y.2d 539, 369 N.Y.S.2d 667 [1975]; Madeline D'Anthony Enter., Inc. v. Sokolowsky, 101 A.D.3d 606, 957 N.Y.S.2d 88 [1st Dept 2012]; Argent Mtge. Co, LLC v. Mentesana, 79 A.D.3d 1079, 915 N.Y.S.2d 591 [2d Dept 2010]). Thus, in the absence of an affidavit from defendant, the facts as set forth in the sworn affidavit of plaintiff describing how the accident occurred are deemed admitted.
Defendant nevertheless argues that the motion is premature and that he is entitled to discovery on the issue of plaintiffs comparative fault prior to consideration of plaintiffs within motion for summary judgment. Defendant's argument that summary judgment is premature however, is unfounded, as he failed to adequately demonstrate how discovery might lead to relevant evidence or that facts essential to justify opposition to the motion are exclusively within the knowledge or control of plaintiff (see CPLR 3212 (f); Williams v. Spencer-Hall, 113 A.D.3d 759, 979 N.Y.S.2d 157 [2d Dept. 2014]; Cajas-Romero v. Ward, 106 A.D.3d 850, 965 N.Y.S.2d 559 [2d Dept. 2013]; Romero v. Greve, 100 A.D.3d 617, 953N.Y.S.2d 296 [2d Dept. 2012]). Indeed, "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" (Cajas-Romero v. Ward, supra, 106 A.D.3d at 852; see also Niyazov v. Hunter EMS, Inc., 154 A.D.3d 954,63 N.Y.S.3d 457 [2d Dept. 2017]). Defendant provides no evidentiary basis for his claim that further discovery may reveal facts known only to plaintiff. Indeed, defendant was involved in the accident, had personal . knowledge of what occurred immediately prior to and during the time of the accident, and thus, defendant could have presented his version of the accident but declined to submit an affidavit to that effect. Again, plaintiffs testimony establishes defendant's negligence, which is deemed admitted in the absence of an affidavit from defendant. Under these circumstances, a denial of summary judgment as premature is unwarranted (see Hewitt v. Gordon-Fleetwood, 163 A.D.3d 536,79 N.Y.S.3d 641 [2d Dept. 2018]; Tsyganash v. Auto Mall Fleet Mgt., Inc., 163 A.D.3d 1033, 83 N.Y.S.3d 74 [2d Dept. 2018]; Deleg v. Vinci, 82 A.D.3d 1146, 919 N.Y.S.2d 396 [2d Dept. 2011]; see also Williams v. Spencer-Hall, 113 A.D.3d 759, 979 N.Y.S.2d 157 [2d Dept. 2014]; Cajas-Romero v. Ward, 106 A.D.3d 850,965 N.Y.S.2d 559 [2d Dept. 2013];Kimyagarov v. Nixon Taxi Corp., 45 A.D.3d 736, 846 N.Y.S.2d 309 [2d Dept. 2007]; Abramov v. Miral Corp., 24 A.D.3d 397, 398 [2d Dept. 2005]). Moreover, it is well established that plaintiff is not required to show an absence of comparative fault to be entitled to summary judgment on the issue of liability (Rodriguez v. City of New York, 31 N.Y.3d 312,76 N.Y.S.3d 898 [2018]; Harrinarain v. Sisters of St. Joseph, 173 A.D.3d 983,104 N.Y.S.3d 661 [2d Dept. 2019]) and "when a defendant's liability is established as a matter of law before trial, the jury still must determine whether the plaintiff was negligent and whether such negligence was a substantial factor in causing plaintiffs injuries. If so, the comparative fault of each party is then apportioned by the jury" (Rodriguez, 31 N.Y.3d at 324).
Based upon the foregoing, the Court concludes that the admissible evidence presented by plaintiff, which has not been refuted by any admissible evidence from defendant, establishes that the negligence of defendant Russell Murphy was the proximate cause of the accident.
Accordingly, plaintiffs motion for summary judgment on the issue of liability is granted.