Opinion
Index 56596/2017
09-09-2019
ROSA RIOS and MARIA RIOS. Plaintiffs, v. ALMSTEAD TREE & SHRUB CARE. CO., LLC, ENVIRONMENTAL EQUIPMENT CORP., and MIGUEL ANGEL CABRERA ROSA, Defendants. Motion Sequence No. 1
Robert Borrero, Esq. Law office of Michael Lamensoff Attorneys for Plaintiffs Martin Galvin, Esq. Burke, Conway & Stiefeld Attorneys for Defendants
Unpublished Opinion
Robert Borrero, Esq. Law office of Michael Lamensoff Attorneys for Plaintiffs
Martin Galvin, Esq. Burke, Conway & Stiefeld Attorneys for Defendants
DECISION AND ORDER (SUMMARY JUDGMENT ON LIABILITY)
MALONE, J.
The following papers numbered 1-3 were read in deciding the motion for summary judgment filed by Plaintiffs Rosa Rios and Maria Rios:
Papers Numbered
Amended Notice of Motion/Affirmation in Support of Robert Borrcro, Esq./ Memorandum of Law/Exhibits A-E 1
The Notice of Motion was amended to change the return date.
Plaintiffs' Affidavits are attached as Exhibits D and E.
Affirmation in Opposition of Martin Galvin. Esq./Exhibit A 2 Stipulation to Consolidate dated October 17, 2017 3
This document was reviewed on the New York State Courts Electronic Filing system.
Plaintiffs Rosa Rios and Maria Rios' motion for summary judgment on the issue of liability is granted against Defendants Ahnstead Tree & Shrub Care, Co., LLC, Environmental Equipment Corp., and Miguel Angel Cabrera Rosa as set forth herein. See, CPLR R 3212 (e). 1
On November 16, 2016 at approximately 8:33 a.m., Plaintiff Rosa Rios was operating a vehicle travelling north on North Avenue, in the City of New Rochelle, County of Westchester, State of New York, with passenger Plaintiff Maria Rios, when the vehicle owned by Defendants Environmental Equipment Corp., and Almstead Tree & Shrub Care, Co., LLC. and operated by Defendant Miguel Angel Cabrera Rosa rear-ended Plaintiffs' vehicle that was stopped at a traffic light at or near the intersection of North Avenue and Mill Street. See, Affirmation in Support of Robert Borrero, Esq. at paragraph 3. 5-7, 16-19; see also, Verified Complaint at paragraphs 7, 9-16. and Plaintiffs' Affidavits as Exhibits B. D, and E.
Plaintiff Rosa Rios commenced this negligence action on May 2, 2017 and issue was joined on August 8, 2017. See, Affirmation in Support of Robert Borrero, Esq. at paragraph 4; see also, Summons and Verified Complaint and Verified Answer as Exhibits B and C.
On October 17, 2017. the matter of Rosa Rios v. Almstead Tree & Shrub Care Co.. LLC, et. al. Index No. 56596/2017 and Maria Rios v. Almstead Tree & Shrub Care Co.. LLC, et. al. Index No. 56671/2017 were consolidated by Counsel See, Stipulation to Consolidate dated October 17, 2017.
As the operator of a motor vehicle. Defendant Miguel Angel Cabrera Rosa had a duty to maintain a safe distance between his vehicle and the cars in front of him and to be aware of the speed of such vehicles and traffic conditions, including vehicle stoppages. See, Vehicle and Traffic Law § 1129(a), Young v. Nm York. 113 A.D.2d 833. (2d Dept. 1985) and Silberman v. Surrey Cadillac Limousine Serv., Inc.. 109 A.D.2d 833 (2d Dept. 1985); see also, Affirmation in Support of Robert Borrero, Esq. at paragraphs 29 and 30 and Memorandum of Law.
It is well settled that when a moving vehicle rear-ends a stopped vehicle, a prima facie case of liability is created against the operator of the moving vehicle unless the operator of the moving vehicle can demonstrate, in evidentiary form, a non-negligent explanation. See, Niyazov v. Bradford 13 A.D.3d 501 (2d Dept. 2004). McGregor v. MattZB, 295 A.D.2d 487 (2d Dept. 2002), 2 and McKeough v. Rogak, 288 A.D.2d 196 (2d Dept. 2001); see also. Affirmation in Support of Robert Borrero, Esq. at paragraphs 30-32 and Memorandum of Law.
Plaintiffs' sworn Affidavits that while Plaintiff Rosa Rios was travelling north on North Avenue, the vehicle Plaintiffs were operating came to a complete stop, when the vehicle was struck by the vehicle operated by Defendant Miguel Angel Cabrera Rosa, creates a prima facie case of liability against Defendant Miguel Angel Cabrera Rosa, which he fails to rebut. See, CPLR R 3212(b), Zuckerman v. New York. 49 N.Y.2d 557 (1980). and Niyazov v. Bradford. 13 A.D.3d 501 (2d Dept. 2004); see also, Plaintiffs' Affidavits as Exhibits D and E.
While Defendants' Counsel attaches an Incident Report claiming that the Plaintiff driver was on her cell phone in violation of Vehicle and Traffic Law § 1225-C, such evidence is not in admissible form and Counsel did not demonstrate an acceptable excuse for Counsel's failure to meet the requirement of tender in admissible form. Additionally, Defendants" Counsel's argument that the Plaintiff suddenly, abruptly, and without warning stopped her vehicle in front of Defendants' vehicle must also fail as Defendant Miguel Angel Cabrera Rosa had a duty to maintain a safe distance between the two vehicles and his failure to do so, in the absence of an adequate, nonnegligent explanation, constitutes negligence as a matter of law. See, Zuckerman v. New York, 49 N.Y.2d 557 (1980). Silberman v. Surrey Cadillac Limousine Serv.. Inc., 109 A.D.2d 833. 486 N.Y.S.2d 357 (2d Dept. 1985). Cohen v. Terranella. 112 A.D.2d 264. 491 N.Y.S.2d 711 (2d Dept. 1985); see also. Affirmation in Opposition of Martin Galvin, Esq. at paragraphs 3, 4, 7, 11 and Incident Report attached as Exhibit A. and Memorandum of Law at pages 12 and 13.
Defendants Almstead Tree & Shrub Care, Co., LLC, and Environmental Equipment Corp. can also be held liable as such Defendants admit that Defendant Miguel Angel Cabrera Rosa operated the vehicle with the consent of such owners. See, Vehicle and Traffic Law § 388(1) and 3 Sarine v. American Lumbermen's Mut. Casualty Co.. 258 A.D. 653 (2d Dept. 1940) (holding the owner's liability "is derivative and is akin to that imposed on a master for the negligent acts of his servant under the doctrine of respondeat superior"); see also. Defendants' Answer as Exhibit C at paragraphs 7-8.
Therefore. Plaintiffs Rosa Rios and Maria Rios' motion for summary judgment on the issue of liability is granted against Defendants Almstead Tree & Shrub Care, Co., LLC, Environmental Equipment Corp., and Miguel Angel Cabrera Rosa. The Parties shah appear before the Settlement Conference Part on October 8, 2019 at 9:15 a.m., Courtroom 1600.
This constitutes the Decision and Order of this Court. 4