Opinion
Index No. 609250/2020 Mot. Seq. No. 001 MG
02-22-2021
STEVE JAIPAUL, Plaintiff, v. LUIS FURCAL-ISAAC and ANA ISAAC-FURCAL, Defendants.
PLTF'S ATTORNEY: GRUENBERG KELLY DELLA DEFTS' ATTORNEY: LAW OFFICES OF JENNIFER S. ADAMS
Unpublished Opinion
ORIG. RETURN DATE: January 14, 2021
FINAL RETURN DATE: January 14, 2021
PLTF'S ATTORNEY: GRUENBERG KELLY DELLA
DEFTS' ATTORNEY: LAW OFFICES OF JENNIFER S. ADAMS
PRESENT: Hon. Paul J. Baisley. Jr.. J.S.C.
HON. PAUL J. BAISLEY. JR., J.S.C.
Upon the following papers read on this e-filed motion for summary judgment: Notice of Motion/ Order to Show Cause and supporting papers by plaintiff, filed December 22, 2020: Notice of Cross Motion and supporting papers___; Answering Affidavits and supporting papers by defendants, filed January 7, 2021; Replying Affidavits and supporting papers___; Other ___; it is
ORDERED that the motion by plaintiff Steve Jaipaul for summary judgment in his favor on the issue of defendants' liability, and for, in effect, dismissal of defendants' fourth affirmative defense of culpable conduct is granted; and it is further
ORDERED that a preliminary conference will be held on March 23, 2021.
Plaintiff Steve Jaipaul commenced this action to recover damages for personal injuries he allegedly sustained as a result of a motor vehicle accident that occurred on July 16,2019, at the intersection of New York State Route 110 and Brefni Street, in North Amityville, New York. The accident allegedly occurred when plaintiff s vehicle was struck by a vehicle owned by defendant Ana Isaac-Furcal, and operated by defendant Luis Furcal Isaac.
Plaintiff now moves for summary judgment in his favor on the issue of defendants' liability, and for, in effect, dismissal of defendants' fourth affirmative defense alleging culpable conduct on the part of plaintiff, including contributory negligence or assumption of risk. Plaintiff argues that defendant driver was negligent in the operation of defendant owner's vehicle. In support of his motion, plaintiff submits, among other things, his affidavit. In opposition, defendants argue, in part, that plaintiff s motion is premature, since plaintiff has yet to be deposed, and submit their attorney's affirmation.
A driver of a vehicle approaching another vehicle from the rear must maintain a reasonably safe distance and rate of speed under the prevailing conditions to avoid colliding with the other vehicle (see Vehicle and Traffic Law § 1129 [a]; Capuozzo v Miller, 188 A.D.3d 1137, 2020 NY Slip Op 07026 [2d Dept 2020]; Newman v Apollo Tech Iron Work Corp., 188 A.D.3d 902, 135 N.Y.S.3d 133 [2d Dept 2020]; Yassin v Blackman, 188 A.D.3d 62,131 N.Y.S.3d 53 [2d Dept 2020]). 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, and thereby requires that operator to rebut the inference of negligence by providing a nonnegligent explanation for the collision (see Dolores v Grandpa's Bus Co., 189 A.D.3d 1539, 135 N.Y.S.3d 295 [2d Dept 2020]; Capuozzo v Miller, supra-, Newman v Apollo Tech Iron Work Corp., supra). A nonnegligent explanation may include evidence of a mechanical failure, a sudden, unexplained stop of the leading vehicle, an unavoidable skidding on wet pavement, or any other reasonable cause (see Clements v Giatas, 178 A.D.3d 894,112 N.Y.S.3d 539 [2d Dept 2019] ; Grant v Carrasco, 165 A.D.3d 631, 84 N.Y.S.3d 235 [2d Dept 2018]; Tumminello v City of New York, 148 A.D.3d 1084, 49 N.Y.S.3d 739 [2d Dept 2017]). However, a driver who follows another vehicle must anticipate that the leading vehicle may stop, even suddenly and frequently, based on prevailing traffic conditions (see Perez v Persad, 183 A.D.3d 771, 123 N.Y.S.3d 683 [2d Dept 2020]; Fang Xia v Saft, 177 A.D.3d 823, 113 N.Y.S.3d 249 [2d Dept 2019]; Catanzaro v Edery, 172 A.D.3d 995,101 N.Y.S.3d 170 [2d Dept 2019]). Although a plaintiff is no longer required to show the absence of his or her comparative fault to establish prima facie entitlement to summary judgment on the issue of a defendant's liability (see Rodriguez v City of New York, 31 N.Y.3d312, 76N.Y.S.3d 898 [2018]; Dolores v Grandpa's Bus Co., supra; Abtey v Trivigno, 188 A.D.3d 629, 134 N.Y.S.3d 401 [2d Dept 2020]), the issue of a plaintiffs comparative negligence may be decided in the context of a summary judgment motion where the plaintiff seeks summary judgment dismissing an affirmative defense alleging comparative negligence (see Hai Ying Xiao v Martinez, 185 A.D.3d 1014,126 N.Y.S.3d 369 [2d Dept 2020]; Balladares v City of New York, 177 A.D.3d 942, 114 N.Y.S.3d 448 [2d Dept 2019]; Poon v Nisanov, 162 A.D.3d 804, 79 N.Y.S.3d 227 [2d Dept 2018]).
Plaintiff established a prima facie case of entitlement to summary judgment in his favor on the issue of defendant drivers's liability (see Perez v Persad, supra', Hall v Powell, 183 A.D.3d 576, 121 N.Y.S.3d 632 [2d Dept 2020]; Rosenblum v Schloss, 175 A.D.3d 1339, 105 N.Y.S.3d 894 [2d Dept 2019]). In support of his motion, plaintiff submit, among other things, his affidavit, in which he avers that his vehicle was stopped for a red traffic light for approximately 10 seconds when it was struck in the rear by a vehicle operated by defendant driver. In opposition, defendants failed to raise a triable issue of fact as to whether there was a non-negligent explanation for the collision (see Hall v Powell, supra; Gelo v Meehan, 177 A.D.3d 707,110 N.Y.S.3d 333 [2d Dept 2019]).
Plaintiff also demonstrated his prima facie entitlement to summary judgment in his favor on the issue of defendant owner's liability (see Alvarez v Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923 [1986]). Vehicle and Traffic Law §388(1) provides that the owner of a motor vehicle is liable for damages resulting from the negligence of one who uses or operates that vehicle with the permission, express or implied, of such owner (see Matter of Allstate Ins. Co. v Jae Kan.Shim, 185 A.D.3d 919, 128 N.Y.S.3d 49 [2d Dept 2020]; Kelly v Starr, 181 A.D.3d 799,120 N.Y.S.3d 373 [2d Dept 2020]). To impose liability pursuant to Vehicle and Traffic Law § 388 (1), the plaintiff must demonstrate "negligence in the use or operation of the vehicle, and that the negligence was a cause of the injury" (Gray v Air Excel Serv. Corp., 171 A.D.3d 1026, 1028, 98 N.Y.S.3d 259 [2d Dept 2019], quoting Ciminello v Sullivan, 65 A.D.3d 1002, 1003, 885 N.Y.S.2d 118 [2d Dept 2009]). By their verified answer, defendants admit that the vehicle operated by defendant driver was owned by defendant owner, and that defendant driver operated such vehicle with the knowledge, permission, and consent of defendant owner (see CPLR 3018 [a]). Thus, defendant driver's negligence can be imputed to defendant owner (see Vehicle and Traffic Law § 388 [ 1 ]; see Abtey v Trivigno, supra}. In opposition, defendants failed to raise a triable issue of fact with regard to defendant owner's liability (see Abtey v Trivigno, supra; Edwards v J&D Express Serv. Corp., 180 A.D.3d 871, 116 N.Y.S.3d 597 [2d Dept 2020]).
As to the branch of plaintiffs motion seeking, in effect, to dismiss defendants' affirmative defense of culpable conduct, when moving to dismiss an affirmative defense, the plaintiff bears the burden of demonstrating that the affirmative defense is without merit as a matter of law because it either is inapplicable under the factual circumstances of the case, or fails to state a defense (see Lewis v US Bank N.A., 186 A.D.3d 694,130 N.Y.S.3d 22 [2d Dept 2020]; Shah v Mitra, 171 A.D.3d971,98 N.Y.S.3dl97 [2d Dept 2019]; Wells Fargo Bank, N.A. v. Rios, 160 A.D.3d 912,74N.Y.S.3d 321 [2d Dept 2018]). In the context of a motion to dismiss an affirmative defense, if there is any doubt as to the availability of an affirmative defense, it should not be dismissed (see Lewis v US Bank N.A., supra; LG Funding, LLC v United Senior Props, of Olathe, LLC, 181 A.D.3d 664, 122 N.Y.S.3d 309 [2d Dept 2020]; Shah v Mitra, supra}.
Plaintiffs submissions were also sufficient to make a prima facie case that he was free from comparative fault (see Lopez v Dobbins, 164 A.D.3d 776,79 N YS3d 566 [2d Dept 2018]; Poon v Nisanov, supra; Figueroa v MTLR Corp., 157 A.D.3d 861,69 N.Y.S.3d 359 [2d Dept 2018]), and that the assumption of risk doctrine is not applicable under the circumstances of this action (we Custodi v Town of Amherst, 20 N.Y.3d 83, 957 N.Y.S.2d 268 [2012]; Trupia v Lake George Cent. Sch. Dist., 14 N.Y.3d 392,901 N.Y.S.2d 127 [2010]). In opposition, defendants failed to raise a triable issue of fact as to plaintiff s comparative fault (see Poon v Nisanov, supra; Figueroa v MTLR Corp., supra}. Thus, plaintiff's application to dismiss defendants' fourth affirmative defense is also granted.
Contrary to defendants' contention, plaintiffs motion was not premature, as defendants failed to demonstrate how further discovery might reveal or lead to relevant evidence, or that facts essential to oppose the motion were exclusively within plaintiffs control (we CPLR3212 [f]; Ordonez v Lee, 177 A.D.3d 756, 110 N.Y.S.3d339 [2d Dept 2019]; Romain v City of New York, 177 A.D.3d 590,112 N.Y.S.3d 162 [2d Dept 2019]). Defendants' purported need to conduct discovery did not warrant denial of the motion, as defendant driver already had personal knowledge of the relevant facts underlying the subject accident (see Pierre v Demoura, 148 A.D.3d 736, 48 N.Y.S.3d 260 [2d Dept 2017]; Turner v Butler, 139 A.D.3d 715, 32 N.Y.S.3d 174 [2d Dept 2016]). Further, 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 the motion (Lopez v WS Distrib. Inc., 34 A.D.3d 759, 760,825 N.Y.S.2d 516, 517 [2d Dept 2006]; see Jobson v SM Livery, Inc., 175 A.D.3d 1510,109 N.Y.S.3d 376 [2d Dept 2019]; Skura v Wojtlowski, 165 A.D.3d 1196, 87 N.Y.S.3d 100 [2d Dept 2018]).
Accordingly, the motion by plaintiff is granted.