Opinion
Index No. 509815/2017
05-24-2021
GAYLE MAXWELL, Plaintiff, v. CHRISTOPHER PARISI and ROTO ROOTER SERVICE COMPANY, Defendants.
Jeffrey Bromfeld, Esq. Elefterakis, Elefterakis & Panek Attorneys for Plaintiff. Peter Reitano, Esq. Brand Glick & Brand, P.C. Attorneys for Defendants.
Unpublished Opinion
Jeffrey Bromfeld, Esq. Elefterakis, Elefterakis & Panek Attorneys for Plaintiff.
Peter Reitano, Esq. Brand Glick & Brand, P.C. Attorneys for Defendants.
PRESENT: HON. LARA J. GENOVESI, J.S.C.
DECISION & ORDER
Lara J. Genovesi J.S.C.
Recitation, as required by CPLR §2219(a), of the papers considered in the review of this motion:
NYSCEF Doc. No.:
Notice of Motion/Cross Motion/Order to Show Cause and Affidavits (Affirmations) Annexed ___ 80, 81
Opposing Affidavits (Affirmations) ____87
Reply Affidavits (Affirmations)____ 88
Introduction
Plaintiff, Gayle Maxwell, moves, by notice of motion, sequence number four, pursuant to CPLR § 3212, for summary judgment on the issue of liability. Defendants, Christopher Parisi and Roto Rooter Service Company, oppose this motion.
Background
This is an action arising out of a motor vehicle accident that occurred on November 14, 2016 on Metropolitan Avenue near the intersection with Humboldt Street in Brooklyn, New York. The intersection is controlled by a traffic control signal. Defendant, Christopher Parisi, while operating a vehicle owned by defendant Roto Rooter Service Company, struck plaintiffs stopped vehicle in the rear while plaintiff was attempting to turn left onto Humboldt Street.
Plaintiff testified at an Examination Before Trial (EBT) on February 11, 2019. Plaintiff testified that he made the left turn from a gas station and onto Metropolitan Avenue (see NYSCEF Doc. # 84, Plaintiff EBT at 17, 18). The traffic light on Metropolitan Avenue was red (see id. at 18). Plaintiff was stopped at the light for approximately "five to ten seconds" (id. at 19). Plaintiffs left turn signal was on (see id. at 19, 20). When the traffic light turned green, plaintiff "inched up because of oncoming traffic. I went to make the left turn [on Humboldt Street] and felt the impact" (id.). Plaintiffs vehicle was stopped at the time of the accident (see id. at 20).
Defendant testified at an EBT on December 10, 2019. The portion of Metropolitan Avenue where the accident took place is a one-way street with one lane of moving traffic and parking on the right side (see NYSCEF Doc. # 85, Defendant EBT at 15). Defendant first saw plaintiffs vehicle while it was in the right-side parking lane (see id. at 20). Plaintiffs vehicle "sped past [defendant's vehicle] [] in the parking lane and cut me off' (id. at 19). Defendant drove down Metropolitan Avenue behind plaintiffs vehicle for "two to five" blocks (see id. at 22). Plaintiffs vehicle stopped at the red light on Metropolitan Avenue at the intersection with Humboldt Street, and defendant stopped "a couple of feet" behind her vehicle (id. at 27, 28). Both vehicles were stopped for approximately "a minute and a half' (id. at 28). When the traffic control light turned green, plaintiff drove approximately half of a car length into the intersection to turn left onto Humboldt Street, plaintiffs vehicle came to a stop after it began to make the left turn (see id. at 29, 33). Plaintiff never turned on her left turn indicator (see id. at 30). Defendant testified that plaintiff "probably [stopped] because it didn't have its turning signal on. The cars on the other side [in the opposite direction] didn't let it turn" (id. at 30). Defendant's vehicle struck the rear of plaintiffs vehicle (see id. at 33, 34).
This action was commenced by the filing of the summons and complaint on May 17, 2017 (see NYSCEF Doc. # 1). Issue was joined on June 29, 2017 (see NYSCEF Doc. # 6). The note of issue was filed on November 9, 2020 (see NYSCEF Doc. # 48).
Discussion
Summary Judgment
"[T]he 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 demonstrate the absence of any material issues of fact" (Stonehill Capital Mgmt., LLC v. Bank of the W., 28 N.Y.3d 439, 68 N.E.3d 683 [2016], citing Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 501 N.E.2d 572 [1986]). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see Chiara v. Town of New Castle, 126 A.D.3d 111,2 N.Y.S.3d 132 [2 Dept., 2015], citing Vega v. Restani Const. Corp., 18 N.Y.3d 499, 965 N.E.2d 240 [2012]; see also Lee v. Nassau Health Care Corp., 162 A.D.3d 628, 78 N.Y.S.3d 239 [2 Dept., 2018]).
"A plaintiff does not need to demonstrate the absence of their own comparative negligence to be entitled to partial summary judgment as to a defendant's liability (see Rodriguez v City of New York, 31 N.Y.3d 312, 76 N.Y.S.3d 898 ). However, the issue of a plaintiffs comparative negligence may be decided in the context of a summary judgment motion where the plaintiff moved for summary judgment dismissing a defendant's affirmative defense of comparative negligence (see Poon v. Nisanov, 162 A.D.3d 804, 808, 79 N.Y.S.3d 227 [2 Dept., 2018]).
"A 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" 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 (Resnick v. Wainwright, 192 A.D.3d 1054, 141 N.Y.S.3d 322, [2 Dept., 2021] [internal citations omitted]; see Toala v. EAN Holdings, LLC, 191 A.D.3d 724, 137 N.Y.S.3d 713, 714 [2 Dept., 2021]). "Vehicle stops which are foreseeable under the prevailing traffic conditions, even if sudden and frequent, must be anticipated by the driver who follows, since he or she is under a duty to maintain a safe distance between his or her car and the car ahead" (Taing v. Drewery, 100 A.D.3d 740, 954 N.Y.S.2d 175 [2 Dept., 2012], quoting Shamah v. Richmond County Ambulance Serv., 279 A.D.2d 564, 719 N.Y.S.2d 287 [2 Dept., 2001]; see also VTL § 1229(a)).
Once a moving party has made a prima facie showing of its entitlement to summary judgment, the burden shifts to the opposing party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action (see Fairlane Fin. Corp. v. Longspaugh, 144 A.D.3d 858, 41 N.Y.S.3d 284 [2 Dept., 2016], citing Alvarez v. Prospect Hospital, 68 N.Y.2d 320, supra; see also Hoover v. New Holland N. Am., Inc., 23 N.Y.3d 41,11 N.E.3d 693 [2014]).
In the case at bar, plaintiff has demonstrated, prima facie, entitlement to summary judgment as a matter of law by submitting the deposition testimony of defendant Parisi who admitted to striking the rear of plaintiffs stopped vehicle (see Defendant EBT at 3034; see also Resnick v. Wainwright, 192 A.D.3d 1054, supra). In opposition, defendant failed to raise a triable issue of fact as to their liability and did not provide a nonnegligent explanation for striking the rear of plaintiffs vehicle.
However, defendants raised a triable issue of fact as to plaintiffs comparative liability. While plaintiff testified that she was stopped on Metropolitan Avenue for approximately five to ten seconds with her left turn signal activated, defendant testified that plaintiff suddenly stopped her vehicle to make a left turn without the use of her left turn indicator. "The frontmost driver also has the duty 'not to stop suddenly or slow down without proper signaling so as to avoid a collision'" (Gaeta v. Carter, 6 A.D.3d 576, 775 N.Y.S.2d 86 [2 Dept., 2004], quoting, Chepel v. Meyers, 306 A.D.2d 235, 762 N.Y.S.2d 95 [2 Dept., 2003]; see also Purcell v. Axelsen, 286 A.D.2d 379, 729 N.Y.S.2d 495 [2 Dept., 2001]; VTL § 1163(c)). "Where the frontmost driver also operates his vehicle in a negligent manner, the issue of comparative negligence is for a jury to decide" (Gaeta v. Carter, 6 A.D.3d 576, supra, citing, Purcell v. Axelsen, 286 A.D.2d 379, supra).
Conclusion
Accordingly, plaintiffs motion, sequence four, for summary judgment is granted as to defendants' liability. This constitutes the decision and order of this case.