Opinion
Index No. 152255/2022
05-31-2024
John Fumo, Plaintiff v. Alexander Ortiz and Q.P.R. Trucking, L.L.C., Defendants
Counsel for Plaintiff: Daniel T. Leav, Esq. Leav & Steinberg LLP Counsel for Defendant: Rasleen Sahni, Esq. Morris Duffy Alonso Faley & Pitcoff
Unpublished Opinion
Counsel for Plaintiff:
Daniel T. Leav, Esq.
Leav & Steinberg LLP
Counsel for Defendant:
Rasleen Sahni, Esq.
Morris Duffy Alonso Faley & Pitcoff
Paul Marrone, Jr., J.
Recitation, as required by CPLR § 2219 (a), of the papers considered in the review of this motion:
Papers NYSCEF Document(s)
Plaintiff's Motion for Summary Judgment on Liability, and to Dismiss Affirmative Defenses, with supporting documents
(filed January 17, 2024) 13 - 22
Defendant's Opposition to Plaintiff's Motion, with supporting
documents (filed February 26, 2024) 24 - 25
Plaintiff's Reply to Defendant's Opposition
(filed March 7, 2024) 28
The plaintiff in this matter, John Fumo (hereinafter "Plaintiff"), commenced this action for personal injuries allegedly sustained when a vehicle owned by a defendant, QPR Trucking LLC, and operated by another defendant, Alexander Ortiz (hereinafter "Defendant", collectively), struck Plaintiff's vehicle in the rear on May 20, 2022 while traveling westbound on the Staten Island Expressway in Richmond County, New York. Plaintiff has filed the instant motion seeking an order granting summary judgment on the issue of liability and striking the affirmative defense(s) of comparative negligence and/or culpable conduct raised in Defendant's Verified Answer. Defendant filed opposition to the motion, to which Plaintiff filed a reply. Oral argument was heard on April 4, 2024 with both parties represented by counsel, and the Court's decision was reserved.
PROCEDURAL HISTORY
Plaintiff commenced the instant action by filing a Summons and Verified Complaint on or about December 13, 2022. Defendant filed a Verified Answer on or about March 1, 2023.
FACTS
At approximately 4:30PM on May 20, 2022, Plaintiff was traveling westbound in the right lane of the Staten Island Expressway when, at or near the Hylan Boulevard exit, Plaintiff made a lane change into the center lane. Shortly thereafter, Plaintiff's motor vehicle, a 2011 Nissan Maxima, was struck in the rear by Defendant's truck, a 2017 Kenworth T680 with a 48-foot trailer attached. At the time and location of the collision, the roadway was congested and traffic was moving slowly.
After the collision, Plaintiff was transported by ambulance to Staten Island University Hospital where he complained of neck and back pain. Plaintiff alleges that, as a result of the collision, he suffers from herniated discs in his cervical and lumbar spine, as well as bilateral carpal tunnel syndrome.
STANDARD OF REVIEW
A motion for summary judgment should be granted if "upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party" (CPLR 3212 [b]). Summary judgment is a drastic remedy which should only be granted when there is no doubt as to the absence of triable issues (Chiara v Town of New Castle, 126 A.D.3d 111, 125 [2d Dept 2015], citing Millerton Agway Co-op, Inc. v Briarcliff Farms, Inc., 17 N.Y.2d 57 [1966]). Moreover, in determining a motion for summary judgment, the court must view the evidence in the light most favorable to the nonmoving party [ see Stukas v Streiter, 83 A.D.3d 18 [2d Dept 2011], citing Pearson v Dix McBride, LLC, 63 A.D.3d 895 [2d Dept 2009]).
In the context of a negligence action, a plaintiff moving for summary judgment must 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 (Tsyganash v Auto Mall Fleet Mgt., Inc., 163 A.D.3d 1033 [2d Dept 2018]). The plaintiff is not required to establish the absence of his or her comparative negligence to be entitled to summary judgment on the issue of liability (see Rodriguez v City of New York, 31 N.Y.3d 312 [2018]). The court may however consider the plaintiff's comparative negligence where the plaintiff moves for summary judgment dismissing the defendant's affirmative defense alleging comparative negligence (Karim v Proline Rental, LLC, 222 A.D.3d 851 [2d Dept 2023], citing Sapienza v Harrison, 191 A.D.3d 1028 [2d Dept 2021]).
DISCUSSION
The driver of a vehicle approaching another vehicle from the rear is required to maintain a reasonably safe distance and rate of speed under the prevailing conditions to avoid colliding with the other vehicle (Vehicle and Traffic Law § 1129 [a]; see Nsiah-Ababio v Hunter, 78 A.D.3d 672 [2d Dept 2010]). 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 operator of the rear vehicle (Tutrani v County of Suffolk, 10 N.Y.3d 906 [2008]). To rebut the presumption of negligence, the operator of the rear vehicle must provide a non-negligent explanation for the collision such as, but not limited to, sudden or unavoidable circumstances (see Munoz v Agenus, Inc., 207 A.D.3d 643 [2d Dept 2022]; see also D'Agostino v YRC, Inc., 120 A.D.3d 1291 [2d Dept 2014]).
In support of his motion, Plaintiff submitted a certified copy of the police report, as well as a transcript of his deposition testimony, which demonstrate that Plaintiff's vehicle, while stopped in traffic on the Staten Island Expressway, was struck in the rear by Defendant's truck multiple times. It is important to note that, on one hand, Defendant argues that the police report attached to Plaintiff's motion is inadmissible hearsay and, on the other, invokes the police report to support the claim that Plaintiff changed lanes at the time the collision occurred. The Court finds that the police officer was acting within the scope of his official duty in the preparation of the report, and the officer's notation reflected an admission by Defendant that he felt his truck hit Plaintiff's vehicle in the rear. Therefore, the Court finds the police report admissible as a statement against interest (see Memenza v Cole, 131 A.D.3d 1020 [2d Dept 2015]; see also Scott v Kass, 48 A.D.3d 785 [2d Dept 2008]; see also Vaden v Rose, 4 A.D.3d 468, 469 [2d Dept 2004]). Even without consideration of the police report, however, the Court would find that Plaintiff established his prima facie entitlement to a judgment as a matter of law on the issue of liability through the transcript of his deposition.
In opposition, however, Defendant raised a triable issue of fact with evidence of a non- negligent explanation for the collision. During his deposition, Defendant testified that his truck had a blind spot over its hood extending approximately ten feet. Defendant testified that, preceding the collision, he had been driving in bumper-to-bumper traffic directly behind a box truck with the top of its lift gate in view. He further testified that, after a dead stop of roughly three minutes, traffic began to move and, after easing his foot off the brake pedal, he felt an impact. Defendant further stated that, after feeling the impact, he leaned forward to look over the hood of his truck and saw the Plaintiff's vehicle for the first time. According to Defendant, Plaintiff changed lanes in front of his truck within the blind spot, and it was impossible to see him (NY St Cts Elec Filing [NYSCEF] Doc No 25 at 32). In Ordonez v ADM Agravit, Inc., the Appellate Division, Second Department, reversed a trial court decision which granted summary judgment to the plaintiff on the issue of liability under similar circumstances (205 A.D.3d 1042 [2d Dept 2022]). The defendant therein averred that, due to the height of his truck and the length of its hood, he could not see the plaintiff's vehicle when it moved in front of his truck "entirely within his blind spot" (id. at 1043). The appellate court found that the defendant's explanation was sufficient to rebut the presumption of negligence (id.).
After considering Plaintiff's motion papers, Defendant's opposition, and Plaintiff's reply, the motion for summary judgement on the issue of liability will be denied. The Court finds that Defendant has presented a non-negligent explanation of the rear-end collision sufficient to rebut the presumption of negligence and raise a triable issue of fact. Furthermore, the Court will not dismiss Defendant's affirmative defense alleging comparative negligence, as Plaintiff has failed to demonstrate that he bore no fault in causing the collision (see Karim v Proline Rental, LLC, 222 A.D.3d 851 [2d Dept 2023]).
DECISION AND ORDER
Accordingly, for the reasons set forth above, Plaintiff's motion is hereby DENIED in its entirety.
The foregoing constitutes the decision and order of the Court.