Opinion
712548/2019
02-10-2020
Ginnie JUAREZ, Plaintiff, v. Alvin J. SEPULVEDA, Defendant.
Attorney for Plaintiff: Gary E. Rosenberg, P.C., Gary E. Rosenberg, Esq. 61-43 186th Street, Fresh Meadows, NY 11365 Attorney for Defendant: James F. Butler & Associates, Marcella Gerbasi Crewe, Esq., P.O. Box 9040, 300 Jericho Quadrangle, Suite 260, Jericho, NY 11763
Attorney for Plaintiff: Gary E. Rosenberg, P.C., Gary E. Rosenberg, Esq.
61-43 186th Street, Fresh Meadows, NY 11365
Attorney for Defendant: James F. Butler & Associates, Marcella Gerbasi Crewe, Esq., P.O. Box 9040, 300 Jericho Quadrangle, Suite 260, Jericho, NY 11763
Lourdes M. Ventura, J.
The following numbered papers read on this motion by Plaintiff, Ginnie Juarez, for an Order: granting partial summary judgment to Plaintiff and against Defendant on the issue of liability on the grounds that plaintiff's cause of action established sufficiently to warrant the court as a matter of law to direct judgment in her favor pursuant to CPLR 3212 ; dismissing Defendant's affirmative defense of culpable conduct pursuant to 3211(b); and granting such other and further relief as to the Court may deem just and proper.
Papers Numbered
Notice of Motion - Affirmation - Exhibits 1-3
Affirmation in Opposition 4-5
Reply Affirmation 6-7
Upon the foregoing papers, it is ORDERED that the motion by Plaintiff for an Order, pursuant to CPLR 3212, granting summary judgment against Defendant on the issue of liability and dismissing Defendant's affirmative defense of culpable conduct pursuant to 3211(b) is hereby granted.
"In determining a motion for summary judgment, evidence must be viewed in the light most favorable to the nonmoving party, and all reasonable inferences must be resolved in favor of the nonmoving party" Valentin v. Parisio , 119 AD3d 854 (2014) citing Escobar v. Velez , 116 AD3d 735 (2014) ; Bravo v. Vargas , 113 AD3d 579 (2014) ; Green v. Quincy Amusements, Inc. , 108 AD3d 591 (2013).
In addition, a plaintiff moving for summary judgment on the issue of liability in an action alleging negligence must establish, prima facie, not only that the Defendant was negligent, but that the Plaintiff was free from comparative fault (see Thoma v. Ronai , 82 NY2d 736 (1993) ; Valentin v. Parisio , 119 AD3d 854 (2014) ; Freeman v. Tawil , 119 AD3d 521(2014) ; Sirlin v. Schreib , 117 AD3d 819 (2014).
"In order to succeed on a motion for summary judgment it is necessary that the movant tender evidentiary proof in admissible form, sufficient to establish his cause of action so as to warrant the court, as a matter of law, directing judgment in his favor" Pyeun v. Jin Woong Woo , 44 Misc 3d 1223(A) (Sup. Ct. 2014) citing ( Zuckerman v. New York, 49 NY2d 557 [1980] ; CPLR 3212 ).
It is well established 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, thereby requiring that operator to rebut the inference of negligence by providing a nonnegligent explanation for the collision" Tumminello v. City of New York , 148 AD3d 1084 (NY App. Div. 2017) citing Theo v. Vasquez, 136 AD3d 795, 796, 26 N.Y.S.3d 85 ; Le Grand v. Silberstein, 123 AD3d 773, 774, 999 N.Y.S.2d 96 ; Cheow v. Cheng Lin Jin, 121 AD3d 1058, 1058—1059, 995 N.Y.S.2d 186 ; Volpe v. Limoncelli, 74 AD3d 795, 795, 902 N.Y.S.2d 152 ).
"A nonnegligent explanation may include a mechanical failure, a sudden, unexplained stop of the vehicle ahead, an unavoidable skidding on wet pavement, or any other reasonable cause" Tumminello v. City of New York , 148 AD3d 1084 (NY App. Div. 2017) citing (see Binkowitz v. Kolb, 135 AD3d 884, 885, 24 N.Y.S.3d 186 ; Etingof v.Metropolitan Laundry Mach. Sales, Inc., 134 AD3d 667, 20 N.Y.S.3d 589 ; D'Agostino v. YRC, Inc., 120 AD3d 1291, 1292, 992 N.Y.S.2d 358 ; Sayyed v. Murray, 109 AD3d 464, 970 N.Y.S.2d 279 ).
Here, Plaintiff commenced this personal injury action to recover damages for injuries allegedly sustained in a two car, rear-end collision that occurred on or about October 28, 2018 on the Whitestone bridge in the County of Queens.
Plaintiff filed the instant summary judgement motion and contends that Defendant rear-ended her vehicle. Plaintiff submits a notarized affidavit, the complaint, a certified police accident report, and a certified copy of Defendant's abstract of driving record in support of her motion. Plaintiff contends that Defendant was issued a violation for driving while ability was impaired and was arrested for driving while impaired at the time of the collision. Plaintiff further contends that Defendant was convicted of driving while ability impaired pursuant to VTL 1192(1) on March 28, 2019.
Defendant opposes Plaintiff's motion by affirmation and asserts that Plaintiff's affidavit does not provide sufficient details to establish prima facie showing entitling her to summary judgment. Defendant further asserts that Plaintiff's motion is premature since Defendant has not been provided an opportunity to conduct a full and complete discovery in this matter.
The Court finds that Plaintiff's moving papers establish a prima facie entitlement to a judgment as a matter of law on the issue of liability. Plaintiff provided evidentiary proof in admissible form through the submission of a notarized affidavit, a certified police accident report, and a certified copy of Defendant's abstract of driving record. Zuckerman v. New York, 49 NY2d 557 (1980). Even viewing the evidence in the light most favorable to Defendant in the instant case, the Court finds that partial summary judgment is appropriate. It is undisputed that Defendant rear-ended Plaintiff's vehicle. It is further undisputed that Defendant was subsequently issued a violation for driving while ability impaired and thereafter Defendant pleaded guilty to driving while ability impaired, creating a prima facie case of negligence. See Pugh v. DeSantis , 37 AD3d 1026(2007) ; Phaneuf v. Livsey, 20 Misc 3d 1136(A) (Sup. Ct. 2008).
In addition, Defendant's opposing papers do not offer any nonnegligent explanation for the cause of the collision nor did Defendant submit an affidavit describing his own version of the events surrounding the collision sufficient to raise triable issue of fact rebutting the inference of negligence warranting denial of the instant motion. Defendant only relies on the affirmation submitted by his Attorney, which is "insufficient to raise a triable issue of fact as to whether Defendants had a nonnegligent explanation for the collision or whether Plaintiff was comparatively negligent in the happening of the accident" ( Pierre v. Demoura , 148 AD3d 736 [NY App. Div. 2017] citing Browne v. Castillo , 288 AD2d 415 [2001] ). Even assuming arguendo that Plaintiff stopped short in front of Defendant's vehicle, it is well established that when the driver of an automobile approaches another automobile from the rear, the driver is bound to maintain a reasonably safe rate of speed and control over their vehicle, and to exercise reasonable care to avoid colliding with the vehicle in front of them ( Gaeta v. Carter, 6 AD3d 576, 576, 775 N.Y.S.2d 86 ; see Gallo v. Jairath, 122 AD3d 795, 796, 996 N.Y.S.2d 682 ; Taing v. Drewery, 100 AD3d 740, 741, 954 N.Y.S.2d 175 ; Ortiz v. Hub Truck Rental Corp., 82 AD3d 725, 918 N.Y.S.2d 156 ; Nsiah—Ababio v. Hunter, 78 AD3d 672, 913 N.Y.S.2d 659 ; see also Vehicle and Traffic Law § 1129[a] ).
The Court further finds that Defendant's opposing papers failed "to establish that discovery might lead to relevant evidence or that the facts essential to justify opposition to the motion were exclusively within the knowledge and control of the Plaintiff" ( Pierre v. Demoura , 148 AD3d 736 [NY. App. Div. 2017] ). Defendant's need to conduct additional discovery does not warrant denial of the instant motion since he has personal knowledge of the relevant facts ( Pierre v. Demoura , 148 AD3d 736 [NY App. Div. 2017] citing Turner v. Butler , 139 AD3d 715 [2016] ).
Accordingly, Plaintiff's branch of the motion seeking partial summary judgment on the issue of liability and dismissing Defendant's affirmative defense of culpable conduct hereby granted.