Opinion
Index 005052/2018
02-13-2019
TODD RUGGIERI, Plaintiff, v. SHERYL GLUCK, Defendant.
PLTF'S ATTORNEY: CELLINO & BARNES, P.C. DEFT'S ATTORNEY: VIGORITO BARKER PORTER
Unpublished Opinion
ORIG. RETURN DATE: October 16, 2018
FINAL RETURN DATE: December 6, 2018
PLTF'S ATTORNEY: CELLINO & BARNES, P.C.
DEFT'S ATTORNEY: VIGORITO BARKER PORTER
PRESENT: Hon. Paul J. Baisley, Jr., J.S.C.
Paul J. Baisley Jr., Judge
Upon the following papers read on this motion for summary judgment: Notice of Motion/ Order to Show Cause and supporting papers by plaintiff, dated September 21, 2018; Notice of Cross Motion and supporting papers; Answering Affidavits and supporting papers by defendant, dated November 15, 2018; Replying Affidavits and supporting papers by plaintiff, dated November 26, 2018; Other; (and after hearing counsel in support and opposed to the motion) it is, ORDERED that the motion by plaintiff Todd Ruggieri for summary judgment in his favor on the issue of negligence is granted; and it is further
ORDERED that parties in the instant action shall appear on March 11, 2019 at 10:00 a.m. at the DCM-J Part of the Supreme Court, 1 Court Street, Riverhead, New York for a preliminary conference.
Plaintiff Todd Ruggieri commenced this action to recover damages for injuries he allegedly sustained as a result of a motor vehicle accident that occurred at the intersection of Edgewood Avenue and Harness Road in the Town of Smithtown on January 9, 2017. It is alleged that the accident occurred when the vehicle owned and operated by defendant Sheryl Gluck struck the rear end of the vehicle owned and operated by plaintiff while it was stopped at red traffic light on Edgewood Avenue in front of Nesaquake Middle School.
Plaintiff now moves for summary judgment in his favor on the issue of negligence, arguing that the sole proximate cause of the subject accident was defendant's negligent operation of her vehicle. In support of the motion, plaintiff submits, among other things, copies of the pleadings, his own affidavit, and a certified copy of the police accident report. Defendant opposes the motion on the grounds that the motion is procedurally defective, since plaintiff failed to include a copy of the bill of particulars, and that there are triable issues of material fact as to the accident's occurrence. Defendant also asserts that plaintiffs motion is premature since discovery has not been completed. In opposition to the motion, defendant submits her own affidavit.
To establish prima facie entitlement to judgment as a matter of law, a movant must come forward with evidentiary proof, in admissible form, demonstrating the absence of any material issues of fact (see Alvarez v Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923 [1986]; Sillman v Twentieth Century Fox Film Corp., 3 N.Y.2d 395, 165 N.Y.S.2d 498 [1957]). The failure to make such showing requires a denial of the motion, regardless of the sufficiency of the opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 487 N.Y.S.2d 316 [ 1985]).
"A rear-end collision with a stopped or stopping vehicle creates a prima facie case of negligence against the operator of the rear vehicle, thereby requiring that operator to rebut the inference of negligence by providing a non-negligent explanation" (DeLouise v S.K.I. Wholesale Beer Corp., 75 A.D.3d 489, 490, 904 N.Y.S.2d 761 [2d Dept 2010]; see Reitz v Seagate Trucking, Inc., 71 A.D.3d 975, 898 N.Y.S.2d 173 [2d Dept 2010]; Harrington v Kern, 52 A.D.3d 473, 859 N.Y.S.2d 480 [2d Dept 2008]). However, the lead vehicle also has a duty not to stop suddenly or slow down without proper signaling so as to avoid a collision (Chepel v Meyers, 306 A.D.2d 235, 237, 762 N.Y.S.2d 95 [2d Dept 2003]; see Carhuayano v J&R Hacking, 28 A.D.3d 413, 813 N.Y.S.2d 162 [2d Dept 2006]; Gaeta v Carter, 6 A.D.3d 576, 775 N.Y.S.2d 86 [2d Dept 2004]; Purcell v Axelsen, 286 A.D.2d 379, 729 N.Y.S.2d 495 [2d Dept 2001]; Colonna v Suarez, 278 A.D.2d 355, 718 N.Y.S.2d 618 [2d Dept 2000]; see also Vehicle and Traffic Law § 1163). A non-negligent explanation for the collision, such as mechanical failure or the sudden and abrupt stop of the vehicle ahead, is sufficient to overcome the inference of negligence and preclude an award of summary judgment (Danner v Campbell, 302 A.D.2d 859, 859, 754 N.Y.S.2d 484 [4th Dept 2003]; see Davidoff v Mullokandov, 74 A.D.3d 862, 903 N.Y.S.2d 107 [2d Dept 2010]; Rodriguez-Johnson v Hunt, 279 A.D.2d 781, 718 N.Y.S.2d 501 [3rd Dept 2001]).
Initially, the Court notes that contrary to defendant's assertion, plaintiffs motion papers are not procedurally defective (see Sensible Choice Contr., LLC v Rodgers, 164 A.D.3d 705, 83 N.Y.S.3d 298 [2d Dept 2018]; Washington Realty Owners, LLC v 260 Wash. St. LLC, 105 A.D.3d 675, 964 N.Y.S.2d 137 [1st Dept 2013]). Despite CPLR 3212 requiring a motion for summary judgment to include all of the pleadings, the court has discretion to overlook the procedural defectiveness when the record is sufficiently complete (Welch v Hauck, 18 A.D.3d 1096, 1098, 795 N.Y.S.2d 789 [3d Dept 2005], lv denied 5 N.Y.3d 708, 803 N.Y.S.2d 29 [2005]; see CPLR 2001). A motion is considered to be sufficiently complete when a complete set of the papers is available from the materials submitted (see e.g. Studio A Showroom, LLC v Yoon, 99 A.D.3d 632, 952 N.Y.S.2d 879 [1st Dept 2012]). The record here is sufficiently complete, and defendant has not argued or proven that plaintiffs failure to include a copy of the bill of particulars has prejudiced her in any way (see Wade v Knight Transp., Inc., 151 A.D.3d 1107, 58 N.Y.S.3d 458 [2d Dept 2017]; Long Is. Pine Barrens Socy, Inc. v County of Suffolk, 122 A.D.3d 688, 996 N.Y.S.2d 162 [2d Dept 2014]). Furthermore, pursuant to CPLR 3212, a motion for summary judgment may be made by any party after issue has been joined, and it is undisputed that the issue has been joined in this action.
In his affidavit, plaintiff states that at the time of the accident he was stopped at a red traffic light in the eastbound lane of Edgewood Avenue in front of the Nesaquake Middle School when his vehicle was impacted from the rear by defendant's vehicle. Plaintiff further avers that he was stopped at the red light for approximately 30 to 45 seconds prior to the accident, that he did not see defendant's vehicle prior to the impact, because he was staring straight ahead at the red light, and that the force from the impact pushed his vehicle into the intersection of Edgewood Avenue and the entrance/exit to the middle school as well as into the oncoming westbound traffic.
Plaintiffs submissions are sufficient to establish his prima facie entitlement to judgment as a matter of law on the issue of negligence (see Rodriguez v City of New York, supra; Abbott v Picture Cars East, Inc., 78 A.D.3d 869, 911 N.Y.S.2d 449 [2d Dept 2010]; Costa v Eramo, 16 A.D.3d 942, 907 N.Y.S.2d 510 [2d Dept 2010]; Carman v Arthur J. Edwards Mason Contr. Co., Inc., 71 A.D.3d 813, 897 N.Y.S.2d 191 [2d Dept 2010]). A driver approaching a vehicle from the rear is bound to maintain a reasonably safe rate of speed and control over his or her vehicle, and to exercise reasonable care to avoid colliding with the other vehicle (see Vehicle and Traffic Law § 1129 [a]; Brooks v High St. Professional Bldg., Inc., 34 A.D.3d 1265, 825 N.Y.S.2d 330 [4th Dept 2006]). Additionally, defendant stated in a certified police report that" when driving, she did hit [plaintiffs] vehicle." The police officer who prepared the report was acting within the scope of his duty in recording defendant's statement, and the statement is admissible as an admission of a party (see Sydnor v Home Depot U.S.A., Inc., 74 A.D.3d 1185, 906 N.Y.S.2d 279 [2d Dept 2010]; Scott v Kass, 48 A.D.3d 785, 851 N.Y.S.2d 649 [2d Dept 2008]; Guevara v Zaharakis, 303 A.D.2d 555, 756 N.Y.S.2d 465 [2d Dept 2003]; cf Bailey v Reid, 82 A.D.3d 809, 918 N.Y.S.2d 364 [2d Dept 2011]). Further, vehicle stops that are foreseeable under the prevailing traffic conditions, even if sudden and frequent, must be anticipated by the driver who follows, since he or she has a duty to maintain a safe distance between his or her vehicle and the car ahead (Shamah v Richmond County Ambulance Serv., 279 A.D.2d 564, 565, 719 N.Y.S.2d 287 [2d Dept 2001]; see Vehicle and Traffic Law§ 1129[a]).
In opposition to the motion, defendant has failed to raise a triable issue of fact as to the existence of a non-negligent explanation for the subject accident's occurrence (see Hill v Ackall, 71 A.D.3d 829, 895 N.Y.S.2d 837 [2d Dept 2010]; Johnson v First Student. Inc., 54 A.D.3d 492, 863 N.Y.S.2d 303 [3d Dept 2008]; Faul v Reilly, 29 A.D.3d 626, 816 N.Y.S.2d 502 [2d Dept 2006]). Defendant has submitted an affidavit in which she attests that she was traveling in the eastbound lane of Edgewood Avenue, and that she was traveling at the posted speed limit as she approached Edgewood Avenue and its intersection with Nesaquake Middle School. She further states that as she approached the subject intersection, the entire lane of traffic she was traveling in came to a complete stop, and that the "sudden and unavoidable circumstance of the traffic coming to an unexpected stop was the cause of the accident." Defendant, in her affidavit, is not asserting that she did not make the earlier statement to the police officer at the scene of the accident, nor is she disputing the accuracy of the statement attributed to her in the police accident report (see Odetalla v Rodriguez, 165 A.D.3d 826, 85 N.Y.S.3d 560 [2d Dept 2018]; Ricci v Lo, 95 A.D.3d 859, 942 N.Y.S.2d 644 [2d Dept 2012]; cf Imamkhodjaev v Kartvelishvili, 44 A.D.3d 619, 843 N.Y.S.2d 160 [2d Dept 2007]). Therefore, defendant's affidavit is a belated attempt to avoid the consequences of her earlier admission to the police officer at the scene of the accident by raising a feigned issue of fact, and is insufficient to defeat plaintiffs' prima facie showing (see Benedikt v Certified Lbr. Corp., 60 A.D.3d 798, 875 N.Y.S.2d 526 [2d Dept 2009]; Grange v Jacobs, 11 A.D.3d 582, 783 N.Y.S.2d 634 [2d Dept 2004]; Guevara v Zaharakis, 303 A.D.2d 555, 756 N.Y.S.2d 465 [2d Dept 2003]). Defendant was under a duty to see that which her senses should have readily seen, and to maintain a safe distance between her vehicle and plaintiffs vehicle in order to avoid colliding with the vehicle in front of her vehicle (see Rieman v Smith, 302 A.D.2d 510, 755 N.Y.S.2d 256 [2d Dept 2003]; Karkowska v Niksa, 298 A.D.2d 561, 749 N.Y.S.2d 55 [2d Dept 2002]; Stiles v County of Dutchess, 278 A.D.2d 304, 717 N.Y.S.2d 325 [2d Dept 2000]; see also Vehicle and Traffic Law § 1129(a)]. As a consequence, defendant has failed to come forth with a nonnegligent excuse for the happening of the accident (see Hernandez v Burkitt, 271 A.D.2d 648, 706 N.Y.S.2d 456 [2d Dept 2000]; Bolta v Lohan, 242 A.D.2d 356, 661 N.Y.S.2d 286 [2d Dept 1997]; Rebecchi v Whitmore, 172 A.D.2d 600, 568 N.Y.S.2d 423 [2d Dept 1991] cf. Guzman v Bowen, 38 A.D.3d 837, 833 N.Y.S.2d 548 [2d Dept 2007]; Perla v Wilson, 287 A.D.2d 606, 732 N.Y.S.2d 35 [2d Dept 2001]).
Furthermore, defendant's assertion that plaintiffs summary judgment motion on the issue of negligence is premature, because discovery has yet to be conducted, is without merit. Before a party can defeat or delay a motion for summary judgment claiming ignorance of fact due to unconducted discovery (see CPLR 3212 [f]), a party must demonstrate that the needed proof is within the exclusive knowledge of the moving party (see Berkeley v Fed. Bank & Trust v 229 E. 53rd St. Assoc, 242 A.D.2d 489, 662 N.Y.S.2d 481 ), that the claims in opposition are supported by something more than mere hope or conjecture (see Neryaev v Solon, 6 A.D.3d 510, 775 N.Y.S.2d 348 [2d Dept 2004]), and that the party has made reasonable attempts to discover these facts and that the facts sought would give rise to a triable issue (see Cruz v Ortis El. Co., 238 A.D.2d 540, 656 N.Y.S.2d 688 [2d Dept 1997]). Here, defendant has failed to make such showing. Accordingly, plaintiffs motion for partial summary on the issue of negligence is granted.