Opinion
Index No. 604065/2019 Mot. Seq. Nos. 001 002 XMG
11-01-2019
CALEB B. SIMS and ROBERT A. VIOLA, Plaintiffs, v. PATRICIA A. OBERHAUSEN, DONNA A. BARBER, and KRISTA N. MUYTERS, Defendants.
PLTF'S ATTORNEY: EDELMAN, KRASIN & JAYE, PLLC DEFT'S ATTORNEY for Oberhausen: GENTILE & TAMBASCO DEFT'S ATTORNEY for Barber: LEWIS JOHS AVALLONE AVILES, LLP DEFT'S ATTORNEY for Muyters: MARTYN & MARTYN
Unpublished Opinion
ORIG. RETURN DATE: August 20, 2019
FINAL RETURN DATE: September 20, 2019
PLTF'S ATTORNEY: EDELMAN, KRASIN & JAYE, PLLC
DEFT'S ATTORNEY for Oberhausen: GENTILE & TAMBASCO
DEFT'S ATTORNEY for Barber: LEWIS JOHS AVALLONE AVILES, LLP
DEFT'S ATTORNEY for Muyters: MARTYN & MARTYN
PRESENT: Hon. Paul J. Baisley, Jr.. J.S.C.
Paul J. Baisley Jr., Judge
Upon the following papers read on this e-filed motion for summary judgment: Notice of Motion/ Order to Show Cause and supporting papers by plaintiffs, dated July 10, 2019; Notice of Cross Motion and supporting papers by defendant Krista Muyters, dated August 15, 2019; Answering Affidavits and supporting papers by defendant Patricia Oberhausen, dated August 5, 2019; by defendant Krista Muyters. dated August 6, 2019; by defendant Donna Barber, dated August 13, 2019; by defendant Patricia Oberhausen. dated August 19, 2019; Replying Affidavits and supporting papers by defendant Krista Muyters, August 23, 2019; Other ___; (and after hearing counsel in support and opposed to the motion) it is, ORDERED that the motion by plaintiffs for summary judgment in their favor on the issue of defendants' negligence and for a determination as to their comparative fault is granted to the extent set forth therein, and is otherwise denied; and it is further
ORDERED that the cross motion by defendant Krista Muyters for summary judgment dismissing the complaint and cross claims against her is granted; and it is further
ORDERED that counsel for the parties shall appear for a preliminary conference at 10:00 a.m. on December 4, 2019, at the DCM-J Part of the Supreme Court, 1 Court Street, Riverhead, New York.
This is an action to recover damages for injuries allegedly sustained by plaintiffs Caleb Sims and Robert Viola, as a result of a multi-vehicle accident, which occurred on June 19, 2018, on the Long Island Expressway (Expressway), in the Town of Smithtown, New York. The accidentally allegedly occurred when the vehicle owned and operated by defendant Patricia Oberhausen struck the rear of the vehicle owned and operated by defendant Krista Muyters, which was then propelled forward into the vehicle owned and operated by Sims, in which Viola was a passenger. It is alleged that Oberhausen's vehicle also struck the rear of the vehicle owned and operated by defendant Donna Barber, and that Barber attempted to avoid the collision, but failed to do so, by moving her vehicle to the left, causing her vehicle to strike the center median of the Expressway.
Plaintiffs now move for summary judgment on the issue of defendants' negligence and for a determination as to their comparative fault, contending that plaintiff driver's vehicle was struck in the rear by Muyters' vehicle. In support of their motion, plaintiffs submit, among other things, an affidavit of plaintiff passenger, in which he contends that he was a passenger in plaintiff driver's vehicle when it was struck in the rear by Muyters' vehicle.
In opposition to plaintiffs' motion for summary judgment, Oberhausen argues, inter alia, that the motion is premature because the parties have not been deposed. Barber opposes plaintiffs' motion, arguing that she did not cause the subject accident, and submits her affidavit. Muyters opposes plaintiffs' motion for summary judgment on the grounds that she did not operate her vehicle in a negligent manner, and that she is free from comparative fault. Muyters submits her affidavit in support of her opposition.
Muyters cross-moves for summary judgment dismissing the complaint and cross claims against her on the same grounds asserted in her opposition to plaintiffs' motion for summary judgment. She contends that her vehicle was slowing down for traffic when it was struck in the rear by Oberhausen's vehicle, which caused Muyters' vehicle to be propelled forward into plaintiffs' vehicle. In support of her cross motion, she submits her affidavit and the affidavits of Barber and plaintiff passenger. Oberhausen opposes the cross motion, arguing that triable issues of fact remain as to Muyters' negligence.
In her affidavit, Muyters alleges that her vehicle was in the process of slowing down for traffic, when it was struck in the rear by Oberhausen's vehicle, and that impact caused her vehicle to propel forward into the rear of plaintiffs' vehicle. She states that when her vehicle was struck by Oberhausen's vehicle, her vehicle's rate of speed did not exceed 15 miles per hour, and her vehicle was approximately 10 feet away from plaintiffs' vehicle. She further states that she did not hear any horns, brakes, or screeching tires at the time of the subject accident.
In Barber's affidavit, she alleges that there was heavy traffic at the time of the collision, and that her vehicle was struck in the rear by Oberhausen's vehicle. She contends that she observed Oberhausen's vehicle in her rear-view mirror prior to the impact, and that she attempted to avoid the collision by moving her vehicle to the left, out of its path, but did not have sufficient warning or time to do so. She further states Schwabenbauer, 124A.D.3d574, 1 N.Y.S.3d 276 [2d Dept 2015] , Gallo v Jairath, 122 A.D.3d 795, 996 N.Y.S.2d 682 [2d Dept 2014]; Rodriguez v Farrell, 115 A.D.3d 929, 983 N.Y.S.2d 68 [2d Dept 2014]).
A driver of an automobile approaching another automobile from the rear must maintain a reasonably safe rate of speed and control over his or her vehicle, and exercise reasonable care to avoid colliding with the other vehicle (see Bloechle v Heritage Catering, Ltd., supra; Schmertzler v Lease Plan U.S.A., Inc., 137 A.D.3d 1101, 27 N.Y.S.3d 648 [2d Dept 2016]; Gallo v Jairath, supra; see also Vehicle and Traffic Law § 1129[a]). A rear-end collision establishes a prima facie case of negligence on the operator of the rear vehicle, thereby requiring that operator to rebut the inference of negligence by providing a non-negligent explanation for the collision (see Batashvili v Veliz-Palacios, 170 A.D.3d 791, 96 N.Y.S.3d 146 [2d Dept 2019]; Russell v J.L. Femia Landscape Servs., Inc., 161 A.D.3d 1119, 77 N.Y.S.3d 121 [2d Dept 2018]; Witonsky v New York City Tr. Auth, 145 A.D.3d 938, 43 N.Y.S.3d 505 [2d Dept 2016]). Evidence that a vehicle was struck in the rear and propelled into the vehicle in front of it may provide a sufficient non-negligent explanation (see Mihalatos v Barnett, 175 A.D.3d 492, 106 N.Y.S.3d 165 [2d Dept 2019]; Pomerantsev v Kodinsky, 156 A.D.3d 656, 64N.Y.S.3d 567 [2d Dept 2017]; Williams v Sala, 152 A.D.3d729, 59 N.Y.S.3d 108 [2d Dept 2017]). In a chain-collision accident, the operator of the middle vehicle may establish prima facie entitlement to judgment as a matter of law by demonstrating that his or her vehicle was struck from behind by the rear vehicle and propelled into the lead vehicle (see Skura v Wojtlowski, 165 A.D.3d 1196, 87 N.Y.S.3d 100 [2d Dept 2018]; Niosiv Jones, 133 A.D.3d 578, 19 N.Y.S.3d 550 [2d Dept 2015]; Kuris v El Sol Contr. & Constr. Corp., 116 A.D.3d 675, 983 N.Y.S.2d 580 [2d Dept 2014]). Further, in a chain-reaction collision, responsibility presumptively rests with the rearmost driver (see Chang v Rodriguez, 57 A.D.3d 295, 869 N.Y.S.2d 427 [1st Dept 2008]; De La Cruz v Ock Wee Leong, 16 A.D.3d 199, 791 N.Y.S.2d 102 [1st Dept 2005]; Mustafaj v Driscoll, 5 A.D.3d 138, 773 N.Y.S.2d 26 [1st Dept 2004]).
Defendant Muyters established prima facie entitlement to summary dismissing the complaint and cross claims against. Muyters' submissions demonstrated, prima facie, that her stopping vehicle was propelled forward into the rear of plaintiffs' vehicle after her vehicle was struck in the rear by Oberhausen's vehicle, and that she was not at fault in the happening of subject the accident (see Skura v Wojtlowski, supra; Pomerantsev v Kodinsky, supra; Napolitano v Galletta, 85 A.D.3d 881, 925 N.Y.S.2d 163 [2d Dept 2011]; Ortiz v Haidar, 68 A.D.3d 953, 892 N.Y.S.2d 122 [2d Dept 2009]; Katz v Masada II Car & Limo Serv., Inc., 43 A.D.3d 876, 841 N.Y.S.2d 370 [2d Dept 2007]). In her affidavit, Muyters contends that her vehicle was in the process of stopping for traffic, traveling at a rate of speed of no more than 15 miles per hour, and that it was approximately 10 feet away from plaintiff driver's vehicle, when it was struck in the rear by Oberhausen's vehicle. In opposition, the opposing parties failed to raise a triable issue of fact (see Pomerantsev v Kodinsky, supra; Ortiz v Haidar, supra; Katz v Masada IICar & Limo Serv., Inc., supra).
With regard to plaintiffs' motion for summary judgment, they established their prima facie entitlement to summary judgment on the issue of defendant Oberhausen's negligence by demonstrating, prima facie, that her vehicle struck the rear of Muyters' vehicle, which thereby caused the subject chain-reaction accident (see Warner v Kain, 162 A.D.3d 1384, 79 N.Y.S.3d 362 [3d Dept 2018]; Gustke v Nickerson, 159 A.D.3d 1573, 72 N.Y.S.3d 733 [4th Dept 2018], Iv denied 162 A.D.3d 1604, 74 N.Y.S.3d 923 [4th Dept 2018]; Iv dismissed and denied32NY3d 1048, 88N.Y.S.3d403 [2018]). In her verified answer, Oberhausen admits that her vehicle made contact with the rear of Muyters' vehicle. Facts admitted in a party's pleadings that her vehicle was propelled forward, and to the left, into the cement center median of the Expressway, and that the front of her vehicle never came into contact with another vehicle. Her vehicle allegedly came to a rest facing the center median, more than 200 feet behind the other vehicles involved in the subject accident.
The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law by tendering evidence in admissible form sufficient to eliminate any material issues of fact from the case (see Alvarez v Prospect Hosp., 68 N.Y.2d 320, 508N.Y.S.2d923 [1986]; Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 87 N.Y.S.2d 316 [1985]). The movant has the initial burden of proving entitlement to summary judgment (Wine gr ad v New York Univ. Med. Ctr., supra). Once the movant demonstrates a prima facie entitlement to judgment as a matter of law, the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action (see Vega v Restani Constr. Corp., 18 N.Y.3d 499, 942 N.Y.S.2d 13 [2012]; Alvarez v Prospect Hosp., supra; Zuckerman v City of New York, 49 N.Y.2d 557; 427 N.Y.S.2d 595 [1980]; see also CPLR 3212 [b]). The failure to make a prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers (see Winegrad v New York Univ. Med. Ctr., supra). In deciding the motion, the court must view all evidence in the light most favorable to the nonmoving party (see New York City Asbestos Litig. v Chevron Corp., 33 N.Y.3d 20, 99 N.Y.S.3d 734 [2019]; Vega v Restani Constr. Corp., supra).
Although a plaintiff is no longer required to show freedom from comparative fault to establish his or her prima facie entitlement to judgment as a matter of law on the issue of negligence (Rodriguez v City of New York, 31 N.Y.3d 312, 76 N.Y.S.3d 898 [2018]; see Liu v Lowe, 173 A.D.3d 946, 102 N.Y.S.3d 713 [2d Dept 2019]; Bloechle v Heritage Catering Ltd., 172 A.D.3d 1294, 101 N.Y.S.3d 424 [2d Dept 2019]; Catanzaro v Edery, 172 A.D.3d 995, 101 N.Y.S.3d 170 [2d Dept 2019]; Marks v Rieckhoff 172 A.D.3d 847, 101 N.Y.S.3d 63 [2d Dept 2019]), a defendant moving for summary judgment in a negligence action has the burden of demonstrating, prima facie, that he or she was not at fault in the happening of subject collision (see Richardson v Cablevision Sys. Corp., 173 A.D.3d 1083, 104 N.Y.S.3d 655 [2d Dept 2019]; Green v Masterson, 172 A.D.3d 826, 98 N.Y.S.3d 443 [2d Dept 2019]; Miron v Pappas, 161 A.D.3d 1063, 77 N.Y.S.3d 163 [2d Dept 2018]). The issue of a plaintiffs comparative negligence may, however, be decided in the context of a summary judgment motion if the plaintiff moves for summary judgment dismissing a defendant's affirmative defense of comparative negligence (see Higashi v M & R Scarsdale Rest., LLC, ___ A.D.3d ___, 2019 NY Slip Op 07240 [2d Dept 2019]; Wray v Galella, 172 A.D.3d 1446, 101 N.Y.S.3d 401 [2d Dept 2019]; Poonv Nisanov, 162 A.D.3d 804, 79 N.Y.S.3d 227 [2d Dept 2018]). Here, the Court deems the plaintiffs' application for a declaration that they are free from comparative negligence, in effect, as a request for summary judgment dismissing defendants' affirmative defense of comparative negligence. As a motor vehicle accident can have more than one proximate cause (see Richardson v Cablevision Sys. Corp., supra; Enriquez v Joseph, 169 A.D.3d 1008, 94 N.Y.S.3d 599 [2d Dept 2019]; Matias v Bello, 165 A.D.3d 642, 84 N.Y.S.3d 551 [2d Dept 2018]), the issue of comparative fault is generally a question for the fact finder to determine (see Vuksanaj v Abbott, 159 A.D.3d 1031, 73 N.Y.S.3d 224 [2d Dept 2018]; Ortiz v Welna, 152 A.D.3d 709, 58 N.Y.S.3d 556 [2d Dept 2017]; Twizer v Lavi, 140 A.D.3d 736, 33 N.Y.S.3d 351 [2d Dept 2016]). Further, a nonculpable passenger's right to summary judgment on the issue of liability is not restricted by possible issues of comparative fault between the drivers involved in the subject collision (see Choi v constitute formal judicial admissions, and are conclusive of the facts admitted in the action in which they are made (see DeSouza v Khan, 128 A.D.3d 756, 11 N.Y.S.3d 168 [2d Dept 2015]; Zegarowicz v Ripatti, 77 A.D.3d 650, 911 N.Y.S.2d 69 [2d Dept 2010]). Plaintiffs' submissions were also sufficient to establish, prima facie, that plaintiff driver was not at fault in the happening of the accident (see Service v McCoy, 131 A.D.3d 1038, 16 N.Y.S.3d 283 [2d Dept 2015]; Strickland v Tirino, 99 A.D.3d 888, 952 N.Y.S.2d 599 [2d Dept 2012]), and that Viola was merely an innocent passenger and did not contribute to the happening of the accident (see Mata v Road Masters Leasing Corp., 128 A.D.3d 780, 10 N.Y.S.3d 124 [2d Dept 2015]; Choi v Schwabenbauer, supra; Rodriguez v Farrell, supra).
In opposition, Oberhausen failed to raise a triable issue with respect to her negligence (see Montalvo v Cedeno, 170 A.D.3d 1166, 96 N.Y.S.3d 638 [2d Dept 2019]; Binkowitz v Kolb, 135 A.D.3d 884, 24 N.Y.S.3d 186 [2d Dept 2016]; Service v McCoy, supra), or with respect to plaintiff driver's comparative fault (see Smith v Fuentes, 158 A.D.3d 731, 68 N.Y.S.3d 739 [2d Dept 2018]; Service v McCoy, supra; Rose v Paulino, 123 A.D.3d 899, 999 N.Y.S.2d 141 [2d Dept 2014]). Contrary to Oberhausen's contention, plaintiffs' motion was not premature, as she failed to offer any evidentiary basis to suggest that discovery may lead to relevant evidence, or that facts essential to opposing the motion were exclusively within the knowledge and control of plaintiffs (see CPLR 3212[f]; Gaston v Vertsberger, ___ A.D.3d ___, 2019 NY Slip Op 07384 [2d Dept 2019]; Harrinarainv Sisters of St. Joseph, 173 A.D.3d983, 104N.Y.S.3d661 [2d Dept 2019]). The mere hope or speculation that evidence sufficient to defeat a motion for summary judgment may be uncovered during the discovery process is an insufficient basis for denying the plaintiffs' motion (see Batashvili v Veliz-Palacios, supra; Figueroa v MTLR Corp., 157 A.D.3d 861, 69 N.Y.S.3d 359 [2d Dept 2018]; Niyazov v Hunter EMS Inc., 154 A.D.3d 954, 63 N.Y.S.3d 457 [2d Dept 2017]).
As to defendant Barber, plaintiffs failed to establish their prima facie entitlement to summary judgement on the issue of her negligence (see Derieux v Apollo N.Y.City Ambulette, Inc., 131 A.D.3d 504, 14 N.Y.S.3d 712 [2d Dept 2015]; Gallo v Jairath, supra; Wilson v Wei Cheng, 98 A.D.3d 971, 950 N.Y.S.2d 574 [2d Dept 2012]). Plaintiffs failed to submit evidence regarding her alleged negligence in causing or contributing to the accident (see Derieux v Apollo N.Y.City Ambulette, Inc., supra; Gallo v Jairath, supra). Therefore, the Court need not consider the adequacy of the papers submitted in opposition to that branch of plaintiffs' motion (see Winegrad v New York Univ. Med. Ctr., supra).
Accordingly, plaintiffs' motion for summary judgment in their favor as to defendants' negligence and for a determination as to their comparative fault is granted to the extent set forth therein, and is otherwise denied, and the cross motion for summary judgment dismissing the complaint and cross claims against her is granted.