Opinion
Index No. 501473/2023 Mot. Seq. No. 1
05-20-2024
DEBRA M. POE, Plaintiff, v. STEVEN JOHN FINNEY, JR., PATRICK M. RONCALLO, and PATRICK RONCALLO LLC, Defendants.
Unpublished Opinion
Return Date: May 1, 2024.
DECISION & ORDER
HON. ANTHONY R. MOLE, Acting Justice of the Supreme Court.
In accordance with CPLR 2219 (a), the following papers were read and considered on the New York State Courts Electronic Filing System ("NYSCEF") in connection with plaintiffs motion, made pursuant to CPLR 3212, for an order granting plaintiff summary judgment on the issue of liability as against all defendants; and dismissing 8 of the 13 affirmative defenses raised by the defendants in their amended answer (mot. seq. no. 1):
Papers:
• Notice of Motion; Affirmation in Support, Exhibits 1-3
• Affirmation in Opposition, Exhibits A-D
• Plaintiffs Reply Affirmation
Upon review of the aforesaid papers, the Court finds and determines as follows:
The Court also takes judicial notice of the filings in this action on NYSCEF (see Kazantzis v Cascade Funding RM1 Acquisitions Grantor Trust, 2 17 A.D.3d 410, 411 [1 st Dept 2023 ]).
I. Background
This negligence action arises out of a motor vehicle accident. The facts are straightforward. Plaintiff was allegedly injured when the vehicle she was operating was struck in the rear by a pickup truck with a trailer attached, owned by defendant Roncallo and operated by its employee, defendant Finney, on Dunwoodie Road at its intersection with Route 52 in the Town of Kent. The underlying accident occurred at approximately 10:31 a.m. on April 25, 2023.
Plaintiff commenced this action on September 21, 2023 against the defendants to recover damages for her alleged personal injuries as a result of the motor vehicle collision. Shortly thereafter, the defendants filed an amended answer, interposing therein 13 affirmative defenses, including comparative negligence (first affirmative defense); plaintiff's culpable conduct (second affirmative defense); a claim of the sudden emergency doctrine absolving them of liability (third affirmative defense); intervening or superseding causation (fourth affirmative defense); plaintiffs failure to mitigate damages (fifth affirmative defense); apportionment under CPLR 1601 (eight affirmative defense); lack of personal jurisdiction over one or more of the defendants (twelfth affirmative defense); and plaintiffs failure to use or adjust the restraint devices in her vehicle (thirteenth affirmative defense).
The defendants filed their verified amended answer on October 31, 2023 (see NYSCEF Doc No. H).
On January 1, 2024, plaintiff filed this motion for summary judgment on the issue of liability, requesting to dismiss the defendants' affirmative defenses set forth above. The defendants filed opposition papers on April 24, 2024. Plaintiff, in turn, filed reply papers on April 30, 2024.
Plaintiff contends that on the day in question, her motor vehicle was struck in the rear by the vehicle that was operated by Finney while she had been at a complete stop at a stop sign. Plaintiff urges that Finney, driving a 2008 Chevrolet pickup truck with a trailer attachment when the accident occurred, was unable to stop due to the excessive weight that was attached to the truck; and Finney admitted as much based on his statements to the responding officer, which is reflected in the certified police accident report and bodycam video footage from the police officer who responded to the scene of the accident. Plaintiff thus claims that the defendants' negligence was the sole proximate cause of the accident. The defendants oppose summary judgment, arguing, among other things, that plaintiff failed to establish her burden on the motion and that the motion itself is premature since discovery is not yet complete.
II. Discussion and Analysis
"A plaintiff in a negligence action moving for summary judgment on the issue of liability must establish, prima facie, that the defendants breached a duty owed to the plaintiff and that the defendants' negligence was a proximate cause of the alleged injuries" (Montalvo v Cedeno, 170 A.D.3d 1166, 1167 [2d Dept 2019]; see Rodriguez v City of New York, 31 N.Y.3d312 [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 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. To be entitled to summary judgment on the issue of a defendant's liability, a plaintiff does not bear the burden of establishing the absence of his or her own comparative negligence. However, the issue of a plaintiff s comparative negligence may be decided in the context of a summary judgment motion where the plaintiff moves for summary judgment dismissing a defendant's affirmative defense alleging comparative negligence" (Fischetti v Simonovsky, __ A.D.3d __, 2024 NY Slip Op 02302, *1 [2d Dept 2024] [internal quotation marks and citations omitted]).
Here, plaintiff moves for partial summary as to the defendants' liability. In support of her motion, plaintiff submitted her sworn affidavit, a copy of the certified police accident report, and bodycam video from the responding officer to the scene. Plaintiff states in her affidavit that on the day in question, she made a "complete stop for 10 seconds" at a stop sign and waited to make a left turn, when she was suddenly struck in the rear by Finney's vehicle. Plaintiff further states in her affidavit that she was wearing her seatbelt and the brake lights of her vehicle were properly functioning when the accident occurred; thus, she is not at fault for the rear-end accident.
The bodycam video depicts Finney explaining to the responding officer that he was unable to bring the pickup truck that he was operating to a complete stop due to the excess weight that was loaded onto it. Specifically, Finney stated that he was unable to bring the vehicle to a full stop because there was "too much weight on the [pickup] truck," and he had told his boss there was "too much weight." Finney further stated that he tried to brake, but the vehicle "wouldn't stop." Significantly, the other codefendants do not dispute Finney's admissions in this regard.
Similarly, the certified police accident report reflects that plaintiff was stopped and waiting to make a left turn when she was struck from behind by Finney's pickup truck. It further reflects that Finney "state[d] he was unable to stop because of too much weight on the [pickup] truck."
Mindful of its function on this summary judgment motion (see Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324 [1986]; Scott v Long Is. Power Auth., 294 A.D.2d 348, 348 [2d Dept 2002]), and in view of the record evidence before it, the Court finds that plaintiff demonstrated her entitlement to judgment as a matter of law. As illustrated, well-established precedent holds that "a rear-end collision with a stopped vehicle establishes a prima facie case of liability against the driver and owner of the moving vehicle and imposes a duty of explanation on its driver" (Johnston v Spoto, 47 A.D.3d 888, 889 [2d Dept 2008] [internal backets, quotation marks, and citations omitted]; see Comiskey v Pisano, 10 A.D.3d 441, 442 [2d Dept 2004]). The operator of the motor vehicle is required to rebut the inference of negligence by coming forward with evidence of some other reasonable cause. "If the operator fails to rebut the inference of negligence, the plaintiff is entitled to judgment as a matter of law" (Tripp v GELCO Corp., 260 A.D.2d 925, 926 [3d Dept 1999]).
In this case, plaintiff adduced unrebutted proof that defendant Finney is at fault because the vehicle operated by him, and owned by the codefendants, suddenly rear-ended plaintiff s vehicle while she was stopped at a stop sign, thereby causing the accident. Notably, plaintiff submitted noncontradictory proof that the collision occurred after her vehicle had been stopped for at least 10 seconds at the stop sign when the pickup truck operated by Finney rear-ended her.
There are an abundance of cases which bear out a similar scenario (see e.g. Hall v Powell, 183 A.D.3d 576 [2d Dept 2020] [affirming order granting summary judgment where plaintiff averred in her affidavit that her vehicle was stopped at a red light for "approximately 10 to 20 seconds" before she was struck in the rear]; Hewitt v Gordon-Fleetwood, 163 A.D.3d 536, 536 [2d Dept 2018] [summary judgment affirmed based on plaintiffs statement in her affidavit that her vehicle was stopped for approximately five seconds before it was struck in the rear by the vehicle owned and operated by the defendant]; Ortiz v Fage USA Corp., 69 A.D.3d 914, 914 [2d Dept 2010] [affirming summary judgment on liability for plaintiff where her vehicle had been at a complete stop for three to four seconds]).
Plaintiff thus established that she was not negligent in causing the accident, and Finney's negligent operation of the motor vehicle was the sole proximate cause of the accident. Plaintiff demonstrated that her vehicle was stopped when it was struck in the rear by the defendants' vehicle (see Guralenko v New York City Tr. Auth., 220 A.D.3d 847, 848 [2d Dept 2023]; Baker v Savo, 142 A.D.3d 1368, 1369 [4th Dept 2016]). Because plaintiff met her prima facie entitlement to summary judgment as a matter of law, the burden shifts to the defendants to come forward with proof in admissible form to establish a triable issue of fact.
The defendants, in opposition, failed to rebut the inference of negligence inasmuch as they did not provide a nonnegligent explanation for the collision. They did not proffer any evidence in connection thereto. In fact, the police bodycam video evinces that Finney's explanation for rear-ending plaintiffs vehicle was that the pickup truck he was driving had excess weight loaded on the vehicle, thereby preventing him from stopping the vehicle in time to avoid the collision. The defendants' critique of plaintiffs version of the accident set forth in her sworn affidavit, and the statements therein being self-serving, is entirely unavailing.
The defendants contend that the certified police accident report proffered by plaintiff in support of her motion must be rejected inasmuch as it contains inadmissible hearsay statements of plaintiff, Finney, and the non-eyewitness police officer who responded to the accident scene. Their argument in this regard is equally without merit.
Uncertified police reports are inadmissible. In contrast, certified police reports are admissible (see CPLR 4518 [a]; Yassin v Blackman, 188 A.D.3d 62, 66-67 [2d Dept 2020]). Here, there is no dispute that the police accident report is certified and therefore admissible as a business record under CPLR 4518 (a). The statements therein are admissible because of the fact it is certified. By that rationale, Finney's statement to the police officer is admissible as an exception to the hearsay rule of a party's admission as it is against the declarant's interests (see Jackson v Trust, 103 A.D.3d 851, 852 [2d Dept 2013]; see also Bernazal v Nici, 77 Misc.3d 1205[A], *1 [Sup Ct, Kings County 2022]; Grimes v Latimer, 75 Misc.3d 1227[A], *3 [Sup Ct, Westchester County 2022]; Mangar v Kearney, 2022 NY Slip Op 32422[U], *5 [Sup Ct, Queens County 2022]). Thus, the certified police accident report provides a piece of the proof in establishing the defendants' negligence.
Critically, the defendants did not submit an affidavit of Finney setting forth his version of how the accident occurred, or an affidavit from a person with personal knowledge of the facts (see Cavitch v Mateo, 58 A.D.3d 592, 592-593 [2d Dept 2009]). The evidence undisputedly establishes that Finney is at fault for the rear-end collision without a nonnegligent explanation by the defendants - who, consequently, failed to meet their burden in opposition to plaintiffs motion (see CPLR 3212 [b]).
The defendants' opposition papers consist solely of their counsel's affirmation in opposition, which is insufficient to defeat summary judgment. The defendants' reliance on their attorney's affirmation, without further submission of sworn testimony by any competent witness with direct personal or firsthand knowledge of the facts and circumstances underlying the subject accident, is insufficient to generate triable issues of fact warranting denial of summary judgment. In sum, the defendants' counsel lacks personal knowledge of the facts (see Huerta v Longo, 63 A.D.3d 684, 685 [2d Dept 2009]).
Contrary to the defendants' additional contention, plaintiffs motion is not "grossly premature." They are not entitled to conduct a pretrial deposition of plaintiff to inquire about the underlying accident before the Court can address this summary judgment motion. This contention is unpersuasive and legally insufficient to preclude entry of summary judgment in plaintiffs favor.
"A party opposing summary judgment is entitled to obtain further discovery when it appears that facts supporting the opposing party's position may exist but cannot then be stated" (Diller v Mirto, 211 A.D.3d 912, 913 [2d Dept 2022]). "While a party is entitled to a reasonable opportunity to conduct discovery in advance of a summary judgment determination, a party contending that a summary judgment motion is premature must demonstrate 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 movant. The mere hope or speculation that evidence sufficient to defeat a motion for summary judgment may be uncovered during the discovery process is insufficient to deny the motion" (Xia v Zeng, 219 A.D.3d 914, 916-917 [2d Dept 2023] [internal brackets, quotation marks, and citations omitted]; see Salameh v Yarkovski, 156 A.D.3d 659, 660 [2d Dept 2017]).
Based on these governing principles, the defendants' bare assertion that plaintiffs version of the accident should be examined at a pretrial deposition lacks merit. The defendants did not demonstrate what information they hoped to discover at a deposition that would relieve them of liability (see Richards v Burch, 132 A.D.3d 752, 754 [2d Dept 2015]).
The defendants' reliance on McGlynn v Palace Co. (262 A.D.2d 116 [1st Dept 1999]), for the premise that summary judgment is premature since neither plaintiff nor Finney have been deposed, is misguided. McGlynn is distinguishable insofar that it concerns labor law claims involving indemnity where plaintiff moved for summary judgment "immediately after" entry of the trial court's preliminary conference order (id. at 117). Conversely here, plaintiff moved for summary judgment well before entry of the preliminary conference order, since she filed her motion in January 2024 (see NY St Cts Elec Filing [NYSCEF] Doc Nos. 17-21). Thereafter, plaintiff herself filed a request for a preliminary conference in March of 2024 (more than two months later). The Court issued the preliminary conference order on March 14, 2024, and dispensed with the need for holding such conference (see NYSCEF Doc No. 33).
Plaintiffs motion cannot be premature under the circumstances presented. With respect to the defendants' professed entitlement to further discovery, "to speculate that something might be caught on a fishing expedition provides no basis pursuant to CPLR 3212 (f) to postpone decision on a summary judgment motion" (Orange County-Poughkeepsie Ltd. Partnership v Bonte, 37 A.D.3d 684, 687 [2d Dept 2007] [internal brackets, quotation marks, and citations omitted]). Moreover, the defendants failed to demonstrate that other discovery may result in disclosure of relevant information. Nor did they make the requisite showing that relevant facts essential to justify opposition to the motion are exclusively within plaintiffs knowledge and control (see CPLR 3212 [f]; Kerolie v Nicholson, 172 A.D.3d 1187, 1189 [2d Dept 2019]; Martinez v Kreychmar, 84 A.D.3d 1037, 1038 [2d Dept 2011]; Cavitch v Mateo, 58 A.D.3d at 593).
The defendants' purported need to conduct depositions does not warrant denial of the motion insomuch as Finney already has personal knowledge of the relevant facts. The defendants, in any event, did not identify any fact which they hope to discover that would be essential for them to oppose this motion. Thus, the defendants' mere hope or speculation that evidence might be uncovered is insufficient to deny plaintiffs summary judgment motion (see CPLR 3212 [f]; Guralenko v New York City Tr. Auth., 220 A.D.3d at 848-849).
III. The Defendants' Affirmative Defenses
The Court further rejects the defendants' argument that plaintiff is not entitled to summary judgment as to her comparative fault. "Comparative negligence on the part of the plaintiff, if any, which would offset the amount of damages, must abide the trial" (McRae v City of New York, 208 A.D.3d at 776).
The Court of Appeals' seminal decision in Rodriguez v City of New York instructs that "[t]o be entitled to partial summary judgment[,] a plaintiff does not bear the double burden of establishing a prima facie case of defendant's liability and the absence of his or her own comparative fault" (Rodriguez v City of New York, 31 N.Y.3d at 324-325 [emphasis added]). In so rationalizing, the Court of Appeals explained that comparative fault/negligence "is not a defense to the cause of action of negligence, because it is not a defense to any element... of plaintiffs prima facie cause of action for negligence, and ... is not a bar to plaintiffs recovery, but rather a diminishment of the amount of damages" (id. at 320). Thus, "[a] plaintiff is no longer required to show freedom from comparative fault to establish her or his prima facie entitlement to judgment as a matter of law on the issue of liability" (Yassin v Blackman, 188 A.D.3d 62, 68 [2d Dept 2020]).).
Here, in seeking summary judgment on liability, plaintiff was required to establish that the defendants were negligent and that their negligence was the proximate cause of the accident. The Court concludes that upon reviewing the record, plaintiff met that burden and established her prima facie entitlement to judgment as a matter of law on the issue of liability. Despite their assertions, the defendants have not successfully raised any triable issues of fact with respect to claimed negligence by plaintiff (see Rodriguez v City of New York, 31 N.Y.3d at 324-325).
Based upon the findings herein, the Court concludes that plaintiff established her entitlement to judgment as a matter of law to dismiss the defendants' affirmative defense alleging comparative negligence by demonstrating that she was not at fault in causing the accident. Under the circumstances of this case, the defendants failed to raise a triable issue of fact as to whether plaintiff was comparatively at fault since they simply sought discovery in trying to ascertain any negligence on the part of plaintiff. The Court notes that the defendants, relying merely on conclusory assertions, have adduced nothing to evince that plaintiff was somehow at fault for causing the accident (see Fleischmann v County of Suffolk,, A.D.3d, 2024 NY Slip Op 02041, *2 [2d Dept 2024]; Martin v Copado-Esquivel, 2024 NY Slip Op 01804, *1 [2d Dept 2024]; Comas-Bourne v City of New York, 146 A.D.3d 855, 856-857 [2d Dept 2017]).
Next, the defendants' third affirmative defense claiming sudden emergency can be easily dismissed. Simply put, the emergency doctrine is not applicable here. "Without having perceived or reacted to any emergency, the defendant[s] may not rely on the emergency doctrine to excuse [Finney's] conduct" (Jablonski v Jakaitis, 85 A.D.3d 969, 970 [2d Dept 2011]; see Comas-Bourne v City of New York, 146 A.D.3d at 856-857).
Moreover, the defendants failed to generate a triable issue of fact as to whether plaintiff engaged in any culpable conduct or was negligent in any way (see Edgerton v City of New York, 160 A.D.3d 809, 811 [2d Dept 2018]). "A sudden, negligent, or unexplained stop of the lead vehicle can constitute a non-negligent explanation because the lead driver has a duty not to stop suddenly or slow down without proper signaling so as to avoid a collision when there is opportunity to give such signal" (John v Leyba, 38 A.D.3d 496, 497 [2d Dept 2007]). "Additionally, a plaintiffs failure to utilize an available seat belt is generally to be considered only on the issue of damages, not on the issue of liability" (Roach v Szatko, 244 A.D.2d 470, 471 [2d Dept 1997], Iv dismissed 91 N.Y.2d 956 [1998]).
In this case, the defendants do not claim that plaintiff made a sudden, negligent, or unexplained stop of her vehicle immediately preceding the collision, or that she was not wearing a seat belt when the underlying accident occurred (see id.; Carhuayano v J &R Hacking, 28 A.D.3d 413, 414 [2d Dept 2006]). Hence, the Court dismisses the affirmative defense predicated on plaintiffs culpable conduct. The Court, likewise, dismisses the affirmative defense of failure to mitigate damages (see Seiler v Ricci's Towing Servs.,210 A.D.2d 972, 972 [4th Dept 1994] [holding that the motion court properly dismissed the affirmative defense of failure to mitigate damages]; see generally Johnson v Thompson, 149 A.D.3d 1530, 1531 [4th Dept 2017]). The Court can dismiss the latter defense without prejudice to the defendants - who are free to reassert it in an amended answer upon demonstrating a factual basis for it (see Seiler vRicci's Towing Servs., 210 A.D.2d at 972).
Contrary to the defendants' beliefs, their assertion of affirmative defenses, standing alone, do not present issues of fact that require a trial. The defendants overlook the fact that plaintiff is only seeking summary judgment as to liability, not damages. In light of the determinations made herein, the affirmative defenses enumerated as "first," "second," "third," "fourth." "fifth," "eighth," "twelfth," and "thirteenth" in the defendants' amended answer must be dismissed.
Notwithstanding, the record, as presently constituted, is not sufficiently developed for an assessment of damages since it is devoid of what injuries, if any, were allegedly suffered by plaintiff as a result of the underlying motor vehicle accident. The defendants are entitled to discovery as to the extent of plaintiffs claimed injuries (see Cruz v Fanoush, 214 A.D.3d 703, 703 [2d Dept 2023]).
Because plaintiff is being awarded partial summary judgment as to liability only, the issue of plaintiffs damages is left for discovery and reserved for trial. In their amended answer, the defendants claim that plaintiff did not suffer a serious injury within the meaning of the Insurance Law (seventh affirmative defense). Nothing at this juncture precludes the defendants from deposing plaintiff and gathering medical records about her alleged injuries, treatment, and damages in view of this decision. Accordingly, the parties should proceed with discovery to further explore those issues (see Rodriguez v Citv of New York, 31 N.Y.3d at 318-319; see also Mallory v City of New York, 69 Mise 3d 640, 642-643 [Sup Ct, New York County 2020]).
To the extent not specifically mentioned herein, the parties' remaining contentions have been evaluated and found to be without merit. Any other relief requested that is not squarely addressed herein is denied. Accordingly, it is hereby:
ORDERED that the motion of plaintiff DEBRA M. POE (Mot. Seq. 1), made pursuant to CPLR 3212, for an order granting her summary judgment on the issue of liability as against all the defendants, is GRANTED in its entirety; and it is further
ORDERED that plaintiff is awarded partial summary judgment as to the issue of the defendants' liability; and it is further
ORDERED that that branch of plaintiffs motion to dismiss the defendants' "first," "second," "third," "fourth," "fifth," "eighth," "twelfth," and "thirteenth" affirmative defenses set forth in their "Amended Verified Answer," is GRANTED; and as such, those affirmative defenses are stricken and dismissed; and it is further
ORDERED that - as was scheduled in the preliminary conference order - the parties shall appear before the undersigned for a compliance conference on June 21, 2024, at 10:00 a.m., in Courtroom 306.
This constitutes the decision and order of the Court.