Opinion
2012-08-13
Iris NICHOLAS, Plaintiff, v. Perry R. DADDARIO, The City of New York, New York City Department of Buildings, Edward M. Castillo, Advance Transit Co. Inc., New York City Transit Authority, Defendants.
Jacob Galperin, Esq., Dinkes & Schwitzer, New York, for plaintiff. Ronald W. Landau, Esq., Shein & Associates, PC, Syosset, for defendants Edward M. Castillo, Advance Transit Co., Inc., and New York City Transit Authority.
Jacob Galperin, Esq., Dinkes & Schwitzer, New York, for plaintiff. Ronald W. Landau, Esq., Shein & Associates, PC, Syosset, for defendants Edward M. Castillo, Advance Transit Co., Inc., and New York City Transit Authority.
Michael A. Cardozo, Corporation Counsel of the City of New York, By: Robin J. Shin, Esq., New York, for defendants City of New York, New York City Department of Buildings, and Perry R. Daddario.
MICHAEL D. STALLMAN, J.
In this personal injury action arising out of an alleged rear-end motor vehicle collision, defendants Edward M. Castillo, Advance Transit Co., Inc., and the New York City Transit Authority move for summary judgment dismissing the action and all cross claims asserted as against them. Defendants City of New York, New York City Department of Buildings and Perry R. Daddario (co-defendants) oppose the motion. Plaintiff also opposes the motion.
BACKGROUND
On January 7, 2009, plaintiff was allegedly a passenger in an Access–A–Ride vehicle operated by defendant Edward M. Castillo. At approximately 1:58 p.m., the Access–A–Ride vehicle was allegedly rear-ended by a Toyota Prius owned by the City of New York and operated by defendant Perry R. Daddario, a crane inspector with the New York City Department of Buildings. The bill of particulars states that the accident occurred on Central Park West, at its intersection with West 77th Street in Manhattan. (Landau Affirm., Ex. D [Verified Bill of Particulars] ¶ 2–3.) Plaintiff allegedly suffered, among other injuries, a meniscal tear in her right knee. ( Id.¶ 7.)
Castillo testified at his deposition that he is employed by “Advance Transit” as a driver. (Landau Affirm., Ex. J [Castillo EBT], at 8.) Castillo stated that, on January 7, 2009, he was driving a four door, white Crown Victoria. ( Id. at 16.) According to Castillo, he was traveling southbound on Columbus Avenue, made a left “on 79th [ sic ],” and made another left onto Central Park West. ( Id. at 29.) Castillo testified as follows:
“Q. Were you fully on Central Park West at the time the accident occurred or were you turning off of a side street at that the time the accident occurred?
A. I had turned but I was already completely on Central Park West, like half a block away.”
( Id. at 28.) When asked “What made you aware that this accident occurred?”, Castillo answered, “Because I felt something light and I looked back and there was a car on the right side.” ( Id. at 34.)
Plaintiff testified at her deposition that she is legally blind in her left eye, that her right eye is “low vision,” and that she was coming from home to go to an eye appointment at the New York Eye & Ear Infirmary. (Landau Affirm., Ex. G [Nicholas EBT], at 7, 10–11.) According to plaintiff, the Access–A–Ride vehicle went on the West Side Highway, then exited, proceeded on West 77th Street, and turned onto Central Park West. ( Id. at 13–14.) Plaintiff testified that the Access–A–Ride vehicle was proceeding in the left lane on West 77th Street, going straight to make a turn at the light. ( Id. at 17, 20.) Plaintiff testified that the Access–A–Ride vehicle was slowing down before the accident. ( Id. at 20.) Plaintiff was asked, “ Was the Access–A–Ride vehicle slowing down gradually, abruptly, moderately; how would you describe the way the Access–A–Ride vehicle was slowing down?” Plaintiff answered, “Gradually.” ( Id. at 21.) According to plaintiff, she felt a heavy impact “[o]n the right side of the back of the vehicle.” ( Id. at 23–24.)
Daddario testified at his deposition that he was on West 77th Street making a left onto Central Park West. (Landau Affirm., Ex. H [Daddario EBT], at 21.) According to Daddario, he was stopped at a light, and was making a turn. ( Id.) Daddario testified as follows:
“Q. Did there come a time when that traffic signal, that light turned green?
A. Yes.
Q. Did you begin to move your vehicle?
A. Yes.
Q. How long after that light turned green did this accident occur?
A. I guess seconds after the light turned green I was in the process of turning.
Q. That's when the accident occurred, seconds after the light turned green, you began to move?
A. Yes.
Q. Did your vehicle, your 2005 Prius, did it impact or make contact with another vehicle?
A. Yes.”
( Id. at 28–29.) Daddario testified, “I was in the process, yes, of turning. The car in front of me hit their brakes, I hit mine, and I skidded into the back of it.” ( Id. at 31.)
DISCUSSION
“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 driver of the rear vehicle, and imposes a duty on the part of the operator of the moving vehicle to come forward with an adequate nonnegligent explanation for the accident.”
( Cabrera v. Rodriguez, 72 A.D.3d 553, 900 N.Y.S.2d 29 [1st Dept.2010];Avant v. Cepin Livery Corp., 74 A.D.3d 533, 904 N.Y.S.2d 381 [1st Dept.2010];see also Dattilo v. Best Transp. Inc. 79 A.D.3d 432, 433, 913 N.Y.S.2d 163 [1st Dept.2010] [A rear-end collision with a vehicle that is slowing down establishes a prima facie case of negligence on the part of the driver of the rear vehicle].) Here, it is undisputed that Daddario's vehicle rear-ended the Access–A–Ride vehicle. Plaintiff's and Daddario's testimony indicate that the Access–A–Ride vehicle was either slowing down or had stopped.
Co-defendants argue that summary judgment should be denied because Daddario testified at his deposition that the Access–A–Ride vehicle ahead of him had stopped suddenly. Daddario was asked, “Did the Paratransit vehicle stop suddenly or did it slow down gradually before the accident?” (Daddario EBT, at 67.) He answered, “Suddenly.” ( Id. at 68.) Plaintiff argues that Daddario's testimony that the Access–A–Ride vehicle stopped in front his vehicle conflicts with Daddario's testimony that the Access–A–Ride vehicle was moving when it was rear-ended.
In reply, movants argue that Daddario's answer, “Suddenly,” was equivocal, in that he could also have meant that the Access–A–Ride vehicle had “Slowed down suddenly” instead of “Stopped suddenly.” This argument is not persuasive. On this motion, the non-movants are entitled to reasonable inferences to be drawn in their favor, and Daddario's answer could reasonably be read as making a choice between the two scenarios asked, “suddenly” versus “gradually.” Thus, it is reasonable to infer that Daddario testified that the Access–A–Ride vehicle stopped suddenly.
The Appellate Division, First Department has not been consistent as to whether evidence that the lead vehicle suddenly stopped rebuts the presumption of negligence of the rear vehicle in a rear-end collision. In Cabrera, the Appellate Division, First Department unanimously stated, “[a] claim that the driver of the lead vehicle made a sudden stop, standing alone, is insufficient to rebut the presumption of negligence.” ( Cabrera, 72 A.D.3d at 553, 900 N.Y.S.2d 29.) However, a year later, the Appellate Division, First Department unanimously stated in Berger v. New York City Housing Authority, 82 A.D.3d 531, 918 N.Y.S.2d 458 [1st Dept.2011]:
“It is well established that evidenceof a rear-end collision with a stopped vehicle constitutes a prima facie case of negligence on the part of the operator of the moving vehicle, which may be rebutted by evidence that the vehicle in front stopped suddenly.”
( Id. at 531, 918 N.Y.S.2d 458 [emphasis supplied, internal citations omitted].)
Cabrera follows a rule cited in many First Department cases for over the past decade. ( See e.g. Dicturel v. Dukureh, 71 A.D.3d 558, 559, 897 N.Y.S.2d 87 [1st Dept.2010];Soto—Maroquin v. Mellet, 63 A.D.3d 449, 880 N.Y.S.2d 279, [1st Dept.2009];Francisco v. Schoepfer, 30 A.D.3d 275, 817 N.Y.S.2d 52 [1st Dept.2006];Woodley v. Ramirez, 25 A.D.3d 451, 452, 810 N.Y.S.2d 125 [1st Dept.2006];Mullen v. Rigor, 8 A.D.3d 104, 778 N.Y.S.2d 168 [1st Dept.2004];see Verdejo v. Aguirre, 8 A.D.3d 63, 777 N.Y.S.2d 648 [1st Dept.2004];Malone v. Morillo, 6 A.D.3d 324, 775 N.Y.S.2d 312 [1st Dept.2004];Moustapha v. Riteway Intl. Removal, Inc., 283 A.D.2d 175, 724 N.Y.S.2d 52 [1st Dept.2001];Agramonte v. City of New York, 288 A.D.2d 75, 732 N.Y.S.2d 414 [1st Dept.2001] [applying presumption where front vehicle stops suddenly in slow-moving traffic]; Mitchell v. Gonzalez, 269 A.D.2d 250, 251, 703 N.Y.S.2d 124 [1st Dept.2000].)
Berger follows a rule implied in a handful of First Department cases over the same time period. ( Cf. Somers v. Condlin, 39 A.D.3d 289, 833 N.Y.S.2d 83 [1st Dept.2007] [“there was no evidence in the record that plaintiff had acted in such a way as to cause the accident, such as by stopping suddenly or by veering in front of defendant”]; Farrington v. New York City Tr. Auth., 33 A.D.3d 332, 822 N.Y.S.2d 51 [1st Dept.2006] [no evidence to support driver's assertion that the vehicle in front of him had stopped suddenly, “so as to rebut the presumption of the driver's negligence”]; Sawhney v. Bailey, 13 A.D.3d 203, 786 N.Y.S.2d 490 [1st Dept.2004] [denying summary judgment because “issues may arise as to whether the driver of the forward vehicle stopped or slowed suddenly”]; see Barry v. City of New York, 283 A.D.2d 300, 724 N.Y.S.2d 613 [1st Dept.2001] [upholding jury verdict finding defendant 100% at fault, based on evidence that defendant's vehicle either stopped suddenly or failed to give a proper signal that it was already stopped in front a tow truck, which set of a chain collision].)
This year, the Appellate Division, First Department stated in Androvic v. Metropolitan Transportation Authority, 95 A.D.3d 610, 610, 944 N.Y.S.2d 113 [1st Dept.2012], “In opposition, plaintiff failed to provide a nonnegligent explanation for the rear-end collision sufficient to establish an issue of fact regarding the MTA defendants' negligence. That the bus came to a sudden stop was insufficient to raise a triable issue of fact.” ( Id. at 610, 944 N.Y.S.2d 113 [citing Francisco, 30 A.D.3d 275, 817 N.Y.S.2d 52].)
Given that Androvic is the most recent precedent on this issue that follows the trend of the majority of cases in the First Department, Daddario's testimony that the Access–A–Ride vehicle suddenly stopped is not, in itself, sufficient to rebut the presumption of negligence.
Next, co-defendants contend that an issue of fact arises as to whether Daddario's actions were reasonable on the day of the accident, because Daddario testified at his deposition that the road was “icy, rainy, slushy.” (Daddario EBT, at 18.) Co-defendants submit a weather report produced by the National Climatic Data Center, which shows that, on January 7, 2009, temperatures ranged from 31 to 38 degrees Farenheit, and there was precipitation throughout the day, with .02 inches of precipitation for the hour ending at 2 p.m. (Shin. Opp. Affirm., Ex. A.) However, “[i]t is well settled that a driver is expected to drive at a sufficiently safe speed and to maintain enough distance between himself and cars ahead of him so as to avoid collisions with stopped vehicles, taking into account the weather and road conditions ....” ( Francisco, 30 A.D.3d at 275–276, 817 N.Y.S.2d 52 [emphasis supplied].)
Co-defendants also argue that summary judgment should not be granted because of issues of fact as to whether Castillo was negligent in failing to adjust plaintiff's seat in the Access–A–Ride vehicle. Plaintiff testified as follows:
“Q. When you sat down after putting on the seat belt and you were in position for the driver to move forward, how far were your knees from the dashboard?
A. It was no room.
Q. Was there just an inch or so, or more?
A. I was jammed, I was jammed in.
Q. Do you know if you couldn't adjust the seat because it was broken or did he just tell you not to?
A. He told me not to.”
(Landau Affirm., Ex. F, at 17–18.) Finally, co-defendants argue there is a question of fact as to whether Castillo's visibility of any vehicles traveling behind him was affected, in that he testified at his deposition that the Access–A–Ride vehicle had no rear wind-shield wiper. (Landau Affirm., Ex. J. at 32.)
These remaining arguments fail to raise a triable issue of fact as to the movants' negligence. Co-defendants cite no authority for the proposition that Castillo's failure to adjust plaintiff's seat violated a common-law duty of care owed to plaintiff. Neither do co-defendants cite any authority for the proposition that operating a vehicle not equipped with a rear windshield wiper constitutes negligence, especially in the situation where the vehicle was rear-ended.
Therefore, the motion for summary judgment dismissing the complaint and any cross claims by and against defendants Edward M. Castillo, Advance Transit Co., Inc., and the New York City Transit Authority is granted.
CONCLUSION
Accordingly, it is hereby
ORDERED that this motion for summary judgment by defendants Edward M. Castillo, Advance Transit Co., Inc., and the New York City Transit Authority is granted, the complaint and any cross claims against defendants Edward M. Castillo, Advance Transit Co., Inc., and the New York City Transit Authority are severed and dismissed, with costs and disbursements to defendant as taxed by the Clerk upon the submission of an appropriate bill of costs; and the cross claims by these defendants are dismissed; and it is further
ORDERED that the Clerk is directed to enter judgment accordingly; and it is further
ORDERED that the remainder of the action shall continue; and it is further
ORDERED that this action is referred to the Trial Support Office for reassignment to a City part (non-Transit).