Opinion
Mot. Seq. 001 - MG 002 - MG
05-07-2020
CONNIE BUFE, Plaintiff, v. JANE REILLY and RENEE GRUJLO, Defendants. Index No. 17-606512
WINKLER KURTZ LLP Attorney for Plaintiff GENTILE & TAMBASCO Attorney for Defendant Grillo FRENCH & CASEY, LLP Attorney for Defendant Reilly
Unpublished Opinion
MOTION DATE: 10-29-2019
ADJ. DATE: 12-17-2019
WINKLER KURTZ LLP Attorney for Plaintiff
GENTILE & TAMBASCO Attorney for Defendant Grillo
FRENCH & CASEY, LLP Attorney for Defendant Reilly
C. RANDALL HINRICHS, J.S.C.
Upon the following papers read on these motions for summary judgment: Notice of Motion/ Order to Show Cause and supporting papers by plaintiff dated September 25, 2019; Notice of Motion/Order to Stow Cause and supporting papers by defendant Jane Reilly date September 25, 2019; Notice of Cross Motion and supporting papers: Answering Affidavits and supporting papers by defendant Renee Grillo dated November 26, 2019: Replying Affidavits and supporting papers by plaintiff dated November 27, 2019; Other (and after hearing counsel in support and opposed to the motion) it is, ORDERED that the motion (001) by the plaintiff and the motion (002) by defendant Reilly are consolidated for the purposes of this determination; and it is further
ORDERED that the motion (001) by the plaintiff for an order pursuant to CPLR 3212, granting partial summary judgment on the issue of liability against defendant Grillo, is granted; and it is further
ORDERED that the motion (002) by defendant Reilly for an order pursuant to CPLR 3212, granting summary judgment and dismissing plaintiffs complaint and all cross-claims against defendant Reilly, is granted.
This is an action to recover damages for injuries allegedly sustained by plaintiff Connie Bufe as a result of a multi-vehicle accident, which occurred on July 14, 2016, on Nesconset Highway, at or near its intersection with Hallock Road, in the Town of Smithtown, State of New York, The accident allegedly occurred when a vehicle owned by defendant Renee Grillo and operated by Robert Grillo struck a vehicle owned and operated by defendant Jane Reilly in the rear, which was then propelled forward into plaintiffs vehicle.
Plaintiff now moves for partial summary judgment in her favor on the issue of defendant Grillo's negligence and for an order striking defendants' affirmative defense of comparative negligence. She contends that her vehicle was stopped for traffic when it was struck in the rear by Reilly* s vehicle. She also contends that Reilly's vehicle was struck in the rear by Grillo's vehicle at the time of the accident hi support of her motion, plaintiff submits, among other things, her affidavit In opposition to plaintiffs motion, Grillo argues that triable issues of fact exist as to which party was at fault in die happening of the collision.
The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law by tendering evidence in admissible form sufficient to eliminate any material issues of fact from the case (see Alvarez v Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923 [1986]; Winegrad v. New York Univ. Med. Ctn, 64 N.Y.2d 851, 87 N.Y.S.2d 316 [1985]). The movant has the initial burden of proving entitlement to summary judgment (Winegrad v. New York Univ. Med. Ctr., supra). Once the movant demonstrates a prima facie entitlement to judgment as a matter of law, the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form sufficient to establish die existence of material issues of fact which require a trial of the action (see Vega v Restani Constn Corp., 18 N.Y.3d 499, 942 N.Y.S.2d 13 [2012]; Alvarez v. Prospect Hosp., supra; Zuckerman v City of New York, 49 N.Y.2d 557; 427 N.Y.S.2d 595 [1980]; see also CPLR 3212 [b]).
The presumption of negligence in rear-end cases arises from the duty of the driver of the following vehicle to keep a safe distance and not collide with the traffic ahead (see Vehicle and Traffic Law § 1129 [a]; Witonsky v. New York City Tn Auth., 145 A.D.3d 938, 43 N.Y.S.3d 505 [2d Dept 2016]; Service v McCoy; 131 A.D.3d 1038, 16N.Y.S.2d283 [2d Dept 2015]). A rear-end collision with a stopped or stopping vehicle creates a prima facie case of negligence on the part of the driver of the rear vehicle, and imposes a duty on that driver to proffer a non-negligent explanation for the collision (Conroy v New York City Tr. Auth., 167 A.D.3d 977, 91 N.Y.S.3d 183 [2d Dept 2018]; Tsyganash v Auto Mall Fleet Mgt, Inc., 163 A.D.3d 1033, 83 N.Y.S.3d 74 [2d Dept 2018]; Edgerton v City of New York, 160 A.D.3d 809, 74 N.Y.S.3d 617 [2d Dept 2018]; Bmkowitz v. Kotb, 135 A.D.3d 884, 24 N.Y.S.3d 186 [2d Dept 2016]).
If the driver of the offending vehicle cannot come forward with evidence to rebut the inference of negligence, the driver of the stopped or stopping vehicle is entitled to summary judgment on the issue of liability (Tsyganash v Auto Mall Fleet Mgt, Inc., supra; Cortes v Wketen, 83 A.D.3d 763, 922 N.Y.S.2d 419 [2d Dept 2011]).
Plaintiff made a prima facie case of entitlement to summary judgment in her favor on the issue of liability by demonstrating that defendant Grillo's negligence was the sole legal and proximate cause of the accident (see Lopez v Dobbins, 164 A.D.3d 776, 79 N.Y.S.3d 566 [2d Dept 2018]; Niyazov v Hunter EMS, Inc., 154 A.D.3d 954, 63 N.Y.S.3d 457 [2d Dept 2017]). She stated that her vehicle was completely stopped when it was struck from behind by defendant Reiliy's vehicle which had been struck from behind by defendant Grillo's vehicle. Plaintiffs affidavit also established, prima facie, that she was not comparatively negligent (see McLaughlin v Lunn, 137 A.D.3d 757, 26 N.Y.S.3d 338 [2d Dept 2016]).
The burden now shifts to defendant Grillo to raise a triable issue of fact as to whether there was a non-negligent explanation for the accident (see Alvarez v Prospect Hasp., supra; Cortes v Wketmn, supra). Defendant has failed to raise a triable issue of fact Accordingly, plaintiffs motion is granted.
Turning to motion sequence 002, a defendant moving for summary judgment in a negligence action has the burden of establishing, prima facie, that he or she was not at fault in the happening of the subject accident (Wctor v Daley, 150 A.D.3d 1307, 56 N.Y.S.3d 223 [2d Dept 2017]; Faust v Gertie, 150 A.D.3d 1204, 52 N.Y.S.3d 1204 [2d Dept 2017]; Estate of Cook v Gomez, 138 A.D.3d 675, 30 N.Y.S.3d 148 [2d Dept 2016]). While there can be more than one proximate cause of an accident and it is generally for the trier of fact to determine, the issue of proximate cause may be decided as a matter of law where only one conclusion may be drawn from the established facts (Victor v Daley, supra; Faust v Gerde, supra; Estate of Cook v Gomez, supra).
When the driver of an automobile approaches another automobile from the rear, he or she is bound to maintain a reasonably safe rate of speed and control over his or her vehicle, and to exercise reasonable care to avoid colliding with the other vehicle (see Vehicle and Traffic Law § 1129 [a]; Melendez v McCrowell, 139 A.D.3d 1018, 32 N.Y.S.3d 604 [2d Dept 2016]; Service v McCoy, 131 A.D.3d 1038, 16N.Y.S.2d283 [2d Dept 2015]; Singh v Avis Rent A Car Sys., Inc., 119 A.D.3d 768, 989 N.Y.S.2d 302 [2d Dept 2014]). A rear-end collision with a stopped or stopping vehicle creates a prima facie case of negligence on the part of the driver of the rear vehicle and imposes a duty on that driver to proffer a non-negligent explanation for the collision (Canny v New York City Tr. Auth., 167 A.D.3d 977, 91 N.Y.S.3d 183 [2d Dept 2018]; Tsyganask v Auto Matt Fleet Mgt. Inc., 163 A.D.3d 1033, 83 N.Y.S.3d 74 [2d Dept 2018]; Edgerton v City of New York, 160 A.D.3d 809, 74 N.Y.S.3d 617 [2d Dept 2018]; Binkowitz v Kolb, 135 A.D.3d 884, 24 N.Y.S.3d 186 [2d Dept 2016]). "Evidence that a vehicle was struck in the rear and propelled into the vehicle in front of it may provide a non-negligent explanation" (Woodridge Solano v Dick, 143 A.D.3d 698, 699, 39 N.Y.S.3d 41 [2d Dept 2016], quoting Ortiz v Haidar, 68 A.D.3d 953, 954, 892 N.Y.S.2d 122 [2d Dept 2009]. In addition, responsibility for a chain-reaction motor vehicle accident presumptively rests with the rearmost driver (see De La Cruz v Ock Wee Leong, 16 A.D.3d 199, 791 N.Y.S.2d 102 [1st Dept 2005]; Mustafuj v Driscoll, 5 A.D.3d 138, 773 N.Y.S.2d 26 [1st Dept 2004]).
Reilly established her prima facie entitlement to summary judgment dismissing the complaint against her (see Rungoo v Lemy, 110 A.D.3d 781, 972 N.Y.S.2d 672 [2d Dept 2013]; Moore v Singh, 108 A.D.3d 602, 969 N.Y.S.2d 146 [2d Dept 2013])- By her affidavit, she stated that her vehicle was fully stopped in traffic before it was hit in the rear, thereby pushing her vehicle into the rear of the plaintiffs vehicle.
The burden now shifts to the non-moving parties to raise a triable issue of fact as to whether Reilly was negligent in the operation of her vehicle. In this case, Grillo and Bufe failed to raise any triable issues of fact regarding defendant Reilly's negligence.
Accordingly, the motion by defendant Reilly for summary judgment dismissing the complaint and all cross-claims against her is granted.