Opinion
Index No. 608453/2020 Mot. Seq. No. 001 MotD
01-22-2021
DAISY CURCIO, Plaintiff, v. NICHOLAS CARSON, NEW U.S. NONWOVENS, LLC, and EAN HOLDINGS, LLC, Defendants
PLTF'S ATTORNEY: GRUENBERG KELLY DELLA DEFTS' ATTORNEY for Nicholas Carson and New U.S. Nonwovens, LLC: WILSON ELSER MOSKOWITZ EDELMAN & DICKER, LLP DEFT'S ATTORNEY for EAN Holdings: CARMAN CALLAHAN &INGHAM, LLP
Unpublished Opinion
ORIG. RETURN DATE: September 17, 2020
FINAL RETURN DATE: November 25, 2020
PLTF'S ATTORNEY: GRUENBERG KELLY DELLA
DEFTS' ATTORNEY for Nicholas Carson and New U.S. Nonwovens, LLC: WILSON ELSER MOSKOWITZ EDELMAN & DICKER, LLP
DEFT'S ATTORNEY for EAN Holdings: CARMAN CALLAHAN &INGHAM, LLP
PRESENT: Hon. Paul J. Baisley, Jr., J.S.C.
SHORT FORM ORDER
HON PAUL J. BAISLEY JR., J.S.C.
Upon the following e-filed papers read on this motion for summary judgment: Notice of Motion and supporting papers by plaintiff, dated August 31.2020; Answering Affidavits and supporting papers by defendants Nicholas Caron and Nonwovens, LLC, dated October 15, 2020. and by defendant EAN Holdings, LLC, dated November 24, 2020 Replying Affidavits and supporting papers by plaintiff, dated November 24. 2020; it is, ORDERED that the motion by plaintiff seeking, inter alia, summary judgment in her favor on the issue of liability is granted to the extent indicated herein, and is otherwise denied; and it is further
ORDERED that a preliminary conference will be conducted on February 24, 2021.
Plaintiff Daisy Curcio commenced this action to recover damages for personal injuries allegedly sustained in a motor vehicle collision that occurred at or near exit 51 of the Long Island Expressway in Babylon, New York, on October 17, 2019. The accident allegedly happened when a vehicle owned by defendant EAN Holdings, LLC ("EAN"), and operated by defendant Nicholas Carson collided with the rear of plaintiffs motor vehicle after it came to a stop due to traffic. As a result of the collision, plaintiff s vehicle was propelled into the rear of a vehicle owned and operated by nonparty Kenneth McDonald. The complaint also lists Carson's employer, defendant New U.S. Nonwovens, LLC, which leased the vehicle he was driving from EAN prior to the accident, as a defendant to the action.
Plaintiff now moves for partial summary judgment in her favor on the issue of liability on the ground defendants' negligence was the sole proximate cause of the accident. Plaintiff also requests dismissal of defendants' affirmative defense based on comparative negligence. In support of the motion, plaintiff submits a copy of the pleadings, a certified police accident report, and an affidavit stating that she was completely stopped behind traffic when the vehicle operated by Carson unexpectedly struck the rear of her vehicle and propelled it into the vehicle ahead of her. New U.S. Nonwovens and Carson oppose the motion, arguing that it is premature, and that plaintiff failed to eliminate triable issues from the case as to how the accident occurred. EAN also opposes the motion, arguing, inter alia, that it was merely the lessor of the vehicle involved in the accident and, as such, the claims against it are preempted by the Graves Amendment (49 USC § 30106).
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 (see Alvarez v Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923 [1986]; Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 487 N.Y.S.2d 316 [1985]). Once the movant meets this burden, the burden shifts to the opposing party to show by tender of sufficient facts in admissible form that triable issues of fact remain which preclude summary judgment in the movant's favor (see CPLR 3212; Altieri v. Golub Corporation, 292 A.D.2d 734, 741 N.Y.S.2d 126 [3d Dept 2002]). Although a plaintiff is no longer required to establish his or her freedom from comparative negligence (Rodriguez v City of New York, 31 N.Y.3d 312, 324, 76 N.Y.S.3d 898 [201 8]), the issue of a plaintiffs comparative negligence may be decided in the context of a summary judgment motion where such plaintiff moves for summary judgment dismissing a defendant's affirmative defense of comparative negligence (see Higashi v. M & R Scarsdale Rest., LLC, 176 A.D.3d 788, 111 N.Y.S.3d 92 [2d Dept 2019]; Lopez v Dobbins. 164 A.D.3d 776, 79 N.Y.S.3d 566 [2d Dept 2018]; Poon v Nisanov, 162 A.D.3d 804, 808, 79 N.Y.S.3d 227 [2d Dept 2018]).
A rear-end collision with a stopped vehicle creates a prima facie case of liability with respect to the operator of the moving vehicle, unless the operator of the moving vehicle comes forward with an adequate, non-negligent explanation for the accident (Bustillo v Matturro, 292 A.D.2d 554, 740 N.Y.S.2d 360 [2d Dept 2002]; Harris v Ryder. 292 A.D.2d 499, 739 N.Y.S.2d 195 [2d Dept 2002]). Where multiple collisions occur in the case of a rear-end chain collision, "the operator of the middle vehicle may establish prima facie entitlement to judgment as a matter of law by demonstrating that the middle vehicle was struck from behind by the rear vehicle and propelled into the lead vehicle" (Kuris v. El Sol Contr. & Constr. Corp., 116 A.D.3d 675, 676, 983 N.Y.S.2d 580 [2d Dept 2014]; see Raimondo v Plunkitt, 102 A.D.3d 851, 958 N.Y.S.2d 460 [2d Dept 2013]). Moreover, the doctrine of respondent superior renders an employer vicariously liable for torts committed by an employee acting within the scope of the employment so long as the tortious conduct is generally foreseeable and a natural incident of the employment (Scott v Lopez, 136 A.D.3d 885, 886, 25 N.Y.S.3d 298 [2d Dept 2016]). An employee's action may be considered to be within the scope of employment when it "is performed while the employee is engaged generally in the business of the employer, or if the act may be reasonably said to be necessary or incidental to such employment" (Scott v Lopez, 136 A.D.3d 885, 886, 25 N.Y.S.3d 298; see Davis v Larhette, 39 A.D.3d 693, 694, 834 N.Y.S.2d 280 [2d Dept 2007]). "Where travel is part of the employment, the crucial test is whether the employment created the necessity for the travel" (Carlson v American Inti. Group, Inc., 30 N.Y.3d 288, 305, 67 N.Y.S.3d 100 [2017]).
Here, plaintiff established her prima facie entitlement to summary judgment against New U.S. Nonwovens and Carson by submitting evidence that Carson's failure to stop the leased vehicle before it collided into the rear of her vehicle was the sole proximate cause of the accident. Significantly, plaintiff's affidavit states, in pertinent part, that she was completely stopped in traffic when the leased vehicle unexpectedly struck the rear of her vehicle and propelled it into the rear of nonparty Kenneth McDonald's vehicle. Plaintiff also submitted a certified copy of a police accident containing a diagram created by the responding officer which depicts the chain collision accident. The police accident report further notes that the drivers of the vehicles involved in the accident, including Carson, admitted that the accident occurred when the rear-most vehicle collided into the rear of plaintiffs vehicle and propelled it forward. Plaintiffs submissions also included an invoice for the rental of the vehicle which indicates that Carson rented the subject vehicle on behalf of New U.S. Nonwovens earlier in the morning prior to the accident. Such evidence is sufficient to make a prima facie showing of plaintiffs entitlement to summary judgment on the issue of liability as against Carson and New U.S. Nonwovens (see Ordonez v Lee, 177 A.D.3d 756, 110 N.Y.S.3d 339 [2d Dept 2019]; Lopez v Dobbins, 164 A.D.3d 776, 79 N.Y.S.3d 566 [2d Dept 2018]; Nikolic v City-Wide Sewer & Drain Serv. Corp., 150 A.D.3d 754, 53 N.Y.S.3d 684 [2d Dept 2017]; Scott v Lopez, 136 A.D.3d 885, 886, 25 N.Y.S.3d 298). Furthermore, by adducing evidence that she was the middle car in a chain collision and, therefore, free from comparative fault for the happening of the accident, plaintiff also established that the affirmative defense based on her alleged culpable conduct or comparative fault is without merit and should be struck from defendants' answer (see Gonzalez v Goudiaby, 177 A.D.3d 656, 109 N.Y.S.3d 890 [2d Dept 2019]; Lopez v Dobbins, 164 A.D.3d 776, 79 N.Y.S.3d 566; Pomerantsev v Vladimir Kodinsky, 156 A.D.3d 656, 64 N.Y.S.3d 567 [2d Dept 2017]).
In opposition, the Nonwovens defendants failed to raise any triable issue sufficient to defeat plaintiffs prima facie showing (see Alvarez v Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923 [1986]; Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851,487 N.Y.S.2d 316 [1985]). As noted above, a prima facie case of liability is established when a defendant rear ends a stopped vehicle (Bustillo v Matturro, 292 A.D.2d 554, 740 N.Y.S.2d 360 [2002]; Harris v Ryder, 292 A.D.2d 499, 739 N.Y.S.2d 195 [2002]). Furthermore, plaintiff established that she was free from comparative fault for the happening of the accident by adducing evidence that she was the middle car in a chain collision accident (see Gonzalez v Goudiaby, 177 A.D.3d 656, 109 N.Y.S.3d 890 [2d Dept 2019]; Lopez v Dobbins, 164 A.D.3d 776, 79 N.Y.S.3d 566). The contention that the instant motion is premature also is rejected, as movants "failed to offer an evidentiary basis to suggest that [further] discovery may lead to relevant evidence" in this case (Conte v Frelen Assoc., LLC, 51 A.D.3d 620, 621, 858 N.Y.S.2d 258 [2d Dept 2008]; Woodard v Thomas, 77 A.D.3d 738, 913 N.Y.S.2d 103 [2d Dept 2010]). The "mere hope or speculation that evidence sufficient to defeat a motion for summary judgment may be uncovered" by further discovery is an insufficient basis for denying a motion for summary judgment (Conte v Frelen Assoc., LLC, 51 A.D.3d 620, 621, 858 N.Y.S.2d 258). Therefore, the branch of plaintiffs motion seeking, inter alia, summary judgment on the issue of liability as against New U.S. Nonwovens and Carson is granted.
Nevertheless, the remaining branch of plaintiff s motion seeking summary judgment on the issue of liability as against EAN is denied. Notably, it is undisputed that EAN merely leased the car to New U.S. Nonwovens, and plaintiff submitted no evidence that EAN engaged in any negligent or criminal conduct which caused or contributed to the happening of the accident (see 49 USC § 30106[a]; Olmann v Neil, 132 A.D.3d 744, 745, 18 N.Y.S.3d 105; Burrell v Barreiro, 83 A.D.3d 984, 922 N.Y.S.2d 465 [2d Dept 2011]; Hernandez v Sanchez, 40 A.D.3d 446, 836 N.Y.S.2d 577 [1st Dept 2007]). While Vehicle and
Traffic Law § 388 (1) makes owners of a vehicle liable for injuries caused by a driver's negligence when the vehicle is operated with the owner's consent (Han v BJ Laura &Son, Inc., 122 A.D.3d 591, 592, 996 N.Y.S.2d 132 [2d Dept 2014]; see Murdza v Zimmerman, 99 N.Y.2d 375, 379, 756 N.Y.S.2d 505 [2003]), liability based on consensual use against the owner of a leased or rented vehicle is preempted by the Graves Amendment provided" (1) the owner is engaged in the trade or business of renting or leasing motor vehicles, and (2) there is no negligence or criminal wrongdoing on the part of the owner" (see 49 USC § 30106 [a]; Olmann v Neil, 132 A.D.3d 744, 745, 18N.Y.S.3d 105 [2d Dept 2015]).