Opinion
Index No. 22685/2019e Mot. Seq. No. 2
01-11-2022
MAMADOU D. BAH, Plaintiff, v. REAL'S TOURS NYC INC., JAHANNA V. CALDERON and CARLOS ALBERTO FLORES-MASCOTE, Defendants.
Unpublished Opinion
VERONICA G. HUMMEL, A.J.S.C.
In accordance with CPLR 2219(a), the decision herein is made upon consideration of all papers filed by the parties in NYSCEF in support of and in opposition to the motion of plaintiff MAMADOU D. BAH ("plaintiff") motion (Seq. No. 2) seeking (a) an order, pursuant to CPLR 3212, granting plaintiff partial summary judgment as to liability against defendants REAL'S TOURS NYC INC. (Real's Tours), JOHANNA V. CALDERON and CARLOS ALBERTO FLORES-MASCOTE ("defendants"), dismissing the defendants' affirmative defense alleging plaintiff's comparative negligence conduct (second affirmative defense) as well as an order setting this matter down for an assessment of damages; and the cross-motion of defendant Real's Tours, made pursuant to CPLR 3212, seeking an order dismissing the complaint as alleged against it.
This is a personal-injury action arising out of a two-car rear-end accident that occurred on December 20, 2018. (the "Accident").
In support of the motion, plaintiff submits an attorney affirmation, an affidavit, a statement of undisputed material facts, copies of the pleadings, a certified copy of the police accident report and deposition transcripts.
In opposition to the motion, defendants Calderon and Flores-Mascote submit an attorney affirmation and a counter-statement of material facts. Defendant Real Tour's submits an attorney affirmation.
Defendant Real Tour's also cross-moves and submits an attorney affirmation, the pleadings, the police report, and depositions transcripts. In response, plaintiff submits a reply affirmation.
The undisputed facts are as follows: The Accident occurred on December 20, 2018, on the Henry Hudson Parkway at or near 79th Street in New York County. At the time of the Accident, defendant Flores-Mascote was driving a vehicle owned by defendant Calderon (the Real Tour's Vehicle). Defendant Calderon, as owner of Real Tour's, was the employer of defendant driver Flores-Mascote. The Real Tour's Vehicle struck the rear of the Plaintiff's Vehicle.
At deposition, plaintiff testified that he was travelling on the parkway, with his focus on the cars in front of him. The Real Tour's Vehicle came up from behind and rear-ended the Plaintiff's Vehicle.
Defendant Flores-Masote testified that traffic was heavy. While he was looking in his rearview mirror, he "lost contract" with the Plaintiff's Vehicle in front of him. When he looked forward again, the Accident happened because traffic had stopped. The front of the Real Tour's Vehicle stuck the Plaintiff's Vehicle in the rear.
"The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering evidence sufficient to eliminate any material issues of fact from the case." Winegrad v. N.Y. Univ. Med. Ctr., 64 N.Y.2d 851, 853 (1985). Upon such a showing, the burden then shifts to the nonmovant to "present evidentiary facts in admissible form sufficient to raise a genuine, triable issue of fact." Mazurek v. Metro. Museum of Art, 27 A.D.3d 227, 228 (1st Dep't 2006). A plaintiff in a negligence action moving for summary judgment on the issue of liability must, therefore, establish, prima facie, that the defendant breached a duty owed to the plaintiff and that the defendant's negligence was a proximate cause of the alleged injuries. Fernandez v. Ortiz, 183 A.D.3d 443 (1st Dept 2020). A plaintiff is not required to demonstrate his or her freedom from comparative fault in order to establish a prima facie entitlement to summary judgment on the issue of liability. Rodriguez v. City of N.Y., 31 N.Y.3d 312, 324-25 (2018).
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." Urena v. GVC Ltd., 160 A.D.3d 467, 467 (1st Dep't 2018) (quoting Matos v. Sanchez, 147 A.D.3d 585, 586 (1st Dep't 2017)); Santos v. Booth, 126 A.D.3d 506, 506 (1st Dep't 2015); Woodley v. Ramirez, 25 A.D.3d 451, 452 (1st Dep't 2006). Under New York Vehicle and Traffic Law ("VTL") § 1129(a), "a 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 vehicle and traffic upon the condition of the highway." In other words, a driver must maintain a safe distance between his vehicle and the one in front of her.
A violation of VTL § 1129(a) is prima facie evidence of negligence, and "[t]his rule has been applied when the front vehicle stops suddenly in slow-moving traffic." Rodriguez v. Budget Rent-A-Car Sys., Inc., 44 A.D.3d 216, 223-24 (1st Dep't 2007) (quoting Johnson v. Phillips, 261 A.D.2d 269, 271 (1st Dep't 1999)); Mascitti v. Greene, 250 A.D.2d 821, 822 (2d Dep't 1998). In a rear-end collision, there is a presumption of non-negligence of the driver of the lead vehicle. See Soto-Maroquin v. Mellet, 63 A.D.3d 449, 450 (1st Dep't 2009).
Based on the submissions, plaintiff has established prima facie entitlement to judgment as a matter of law by submitting evidence that plaintiff was gradually slowing his vehicle due to traffic when it was struck in the rear by the vehicle driven by defendant Flores- Mascote.
Defendants, in turn, failed to come forward with an adequate non-negligent explanation for the accident. Of note, the affirmations by the attorneys in opposition to the motion fails to generate an issue of fact as to the cause of the Accident as the affirmations have no probative value. Thompson v. Pizzaro, 155 A.D.3d 423 (1st Dep't 2017).
As for defendants Calderon and Flores-Mascote, the affirmation by their attorney contends that there are material questions of fact concerning the circumstances of the Accident, including whether plaintiff came to a sudden stop. All such purported questions of fact, however, are purely speculative, without any support in admissible evidence, and thus are insufficient to raise a question of fact. See Cabrera v. Rodriguez, 72 A.D.3d 553, 554 (1st Dep't 2010) (citing Alvord & Swift v. Muller Constr. Co., 46 N.Y.2d 276, 281-82 (1978)); Garcia v. Verizon N.Y., Inc., 10 A.D.3d 339, 340 (1st Dep't 2004). Furthermore, First Department caselaw is also clear that a claim by the rear driver that the lead vehicle made a sudden stop, standing alone, is insufficient to rebut the presumption of negligence on the part of the rear driver. Ly Giap v. Hathi Son Pham, supra. A claim of a sudden stop in "stop-and-go traffic is not a sufficient non-negligent explanation for [the Accident]." Elihu v Nicoleau, 173 A.D.3d 578, 578 (1st Dep't 2019); Moreover, any contention by the opposing attorney that the driver of the Plaintiff's Vehicle negligently failed to evade the collision is purely speculative (Harrigan v Sow, 165 A.D.3d 463 (1st Dep't 2018); Hilago v Vasquez, 187 A.D.3d 683 [1st Dep't 2020]; Jenkins v. Alexander, 9 A.D.3d 286, 288 (1st Dep't 2018)), and no other evidence was proffered to support a claim that said driver failed to take reasonable steps to avoid the collision.
In opposition to the motion and as a basis for the cross-motion, defendant Real Tour's argues that it cannot be held vicariously liability because defendant driver Flores-Mascote was driving the relevant vehicle "not in the course of his employment".
In the answer, however, defendant Real Tour's admits that it owns the defendants' vehicle and its executive admitted to owning the company and giving the defendant driver permission to use the vehicle. A titleholder of a vehicle is an owner within the meaning of the Vehicle and Traffic Law 388, and may be held liable for a plaintiff's injuries as a matter of law where that vehicle has been involved in an accident which results in those injuries, and the driver of the vehicle operated it with the titleholder's consent. see Zegarowicz v Ripatti, 77 A.D.3d 650 (2d Dep't 2010); Litvak v. Fabi, 8 A.D.3d 631(2d Dep't 2004). The police report states that the vehicle is registered to defendant Calderan. Based on the defendant Real Tour's limited moving submissions, therefore, there is conflicting evidence as to the ownership of the vehicle which is for the jury to resolve (Walker v Town of Webster, 197 A.D.3d 942 (4th Dep't 2021). Accordingly, the motion is denied.
Additionally, plaintiff makes a prima facie showing that plaintiff did not negligently contribute to the cause of the Accident, and defendants, in turn, have failed to generate a triable issue of material fact. Accordingly, the motion is also appropriately granted insofar as it seeks an order granting summary judgment dismissing defendants' second affirmative defenses alleging plaintiff's comparative negligence.
The Court has considered the additional contentions of the parties not specifically addressed herein. To the extent that any relief requested by the movant was not addressed by the Court, it is hereby denied.
Accordingly, it is hereby:
ORDERED that that the motion of plaintiff MAMADOU D. BAH ("plaintiff") motion (Seq. No. 2) seeking (a) an order, pursuant to CPLR 3212, granting plaintiff partial summary judgment as to liability against defendants REAL'S TOURS NYC INC. (Real's Tours), JOHANNA V. CALDERON and CARLOS ALBERTO FLORES-MASCOTE ("defendants") and dismissing the defendants' second affirmative defenses alleging plaintiff's comparative negligence is granted; and it is further
ORDERED that the cross-motion of defendant Real's Tours, made pursuant to CPLR 3212, seeking an order dismissing the complaint as alleged against it is denied; and it is further
ORDERED that the Clerk shall mark the motion (Seq. No. 2) disposed in all court records.
This constitutes the decision and order of the Court.