Opinion
Index No. 24904/2018E
10-29-2019
STEVEN V. SANCHEZ and CARMEN B. CARLO, Plaintiffs, v. JAIME PEREZ JR., HENRY RICARDO, TOMAS RICARDO, MARTA GALAN RICARDO, and "JOHN DOE" (a fictitious name used to represent the operator of the RICARDO VEHICLE), Defendants.
Unpublished Opinion
DECISION AND ORDER
MARY ANN BRIGANTTI, Justice
The following papers numbered 1 to Read on this motion, (Seq. No. 2) for SUMMARY JUDGMENT LIABILITY, noticed on May 23 2019.
| Notice of Motion - Order to Show Cause - Exhibits and Affidavits Annexed | No(s). |
| Answering Affidavit and Exhibits | No(s). |
| Replying Affidavit and Exhibits | No(s). |
Upon the foregoing papers, it is ordered that this motion and cross motion are granted in accordance with the annexed decision and order.
Upon the foregoing papers, plaintiffs seek summary judgment on the issue of liability. Codefendants Henry Ricardo, Tomas Ricardo ("Tomas"), and Marta Galan Ricardo ("Marta") oppose the motion (collectively, "co-defendants"), and co-defendant Jaime Perez, Jr. ("Perez") crossmoves for summary judgment on the issue of his liability dismissing the complaint and all cross claims against him.
In support of their motion. Plaintiffs' submitted he deposition transcript of Tomas. At the outset, and contrary to co-defendants' contentions, Plaintiffs were entitled to rely on the certified, albeit unsigned, copy of Tomas's deposition transcript, the accuracy of which Tomas does not dispute (Ortiz v. Lynch, 105 A.D.3d 584, 585 [1st Dept 2013]; Tsai Chung Chao v Chao, 161 A.D.3d 564 [1st Dept 2018]). Tomas testified that as he was travelling directly behind a Lincoln MKS, SUV, the Lincoln stopped on the highway for approximately 10 to 20 seconds and the front of his vehicle struck the rear of the Lincoln (Thomas EBT at 23). Tomas testified that the Lincoln was stopped at the time of the impact (id.). Tomas also testified that traffic conditions were heavy stop and go (id.).
In support of his cross-motion and partial opposition, Perez submitted an affidavit stating that while operating a 2010 Lincoln on the Cross Bronx Expressway he was slowing his vehicle to a stop because of traffic when his vehicle was struck in the rear by a vehicle operated by Tomas. Perez further contends that his actions did not contribute to the subject accident and that he could not avoid the impact.
In this case, the Court finds that Plaintiffs and Perez have established their prima facie entitlement to summary judgment as their vehicle was struck from the rear by co-defendants' vehicle (see Cabrera v Rodriguez, 72 A.D.3d 553 [1st Dept 2010]; De La Cruz v. Ock Wee Leong, 16 A.D.3d 199, 200 [1st Dept 2005]). The burden therefore shifts to co-defendants to provide evidence of a "nonnegligent explanation for the accident, or a nonnegligent reason for [their] failure to maintain a safe distance between [their] car and the lead car" (Mullen v Rigor, 8 A.D. 3d. 104 [1st Dept 2004], citing Jean v Xu, 288 A.D.2d 62 [1st Dept 2001], and Mitchell v. Gonzalez, 269 A.D.2d 250, 251 [1st Dept 2000]).
In opposition to the motion, co-defendants failed to come forward with an adequate nonnegligent explanation for the accident (Cabrera, 72 A.D.3d 553; Ferguson v Honda Lease Trust, 34 A.D.3d 356, 357 [1st Dept 2006]), or a nonnegligent reason for their failure to maintain a safe distance from the lead car (see Woodley v Ramirez, 25 A.D.3d 451 [1st Dept 2006]).
Accordingly, it is hereby, ORDERED, that plaintiffs' motion for summary judgment against co-defendants is granted, and it is further, ORDERED, that plaintiffs' motion for summary judgment against Perez is denied, and it is further, ORDERED, that Perez's cross motion for summary judgment dismissing the complaint and all cross-claims asserted against him is granted, and it is further, ORDERED, that the Clerk of the Court is directed to enter judgment accordingly.
This constitutes the Decision and Order of the Court.