Opinion
Index Nos. 152488/2016 Motion Seq. No. 004 005
10-20-2023
HUMBERTO TAVERAS, Plaintiff, v. BLADEMIE ROSALES, CG TRANSPORT LLC, CRAIG A. MASHAS, RYDER TRUCK RENTAL, INC., AND CHAMPION CONTAINER CORPORATION, Defendants. CRAIG A MASHAS AND CHAMPION CONTAINER CORPORATION, Third-Party Plaintiffs, v. JACK GOLDBERG, Third-Party Defendant. BLADEMIE ROSALES AND CG TRANSPORT LLC., Second Third-Party Plaintiffs, v. JACK GOLDBERG, Second Third-Party Defendant.
Unpublished Opinion
MOTION DATE 06/15/2021, 05/26/2021
DECISION+ ORDER ON MOTION
HON. JAMES G. CLYNES, Justice
The following e-filed documents, listed by NYSCEF document number (Motion 004) 113, 114, 115, 116, 117, 118, 119, 120, 121, 122, 123, 124, 125, 126, 127, 128, 129, 137, 138, 139, 140 were read on this motion to/for JUDGMENT - SUMMARY.
The following e-filed documents, listed by NYSCEF document number (Motion 005) 130, 131, 132, 133, 134,135,136,141,142,143,144,145,146 were read on this motion to/for JUDGMENT - SUMMARY . Motion sequence nos. 004 and 005 are consolidated for disposition.
This is an action to recover damages for alleged personal injuries sustained by plaintiff Humberto Taveras ("Plaintiff7), during a five-chain motor vehicle accident that occurred on the Cross Bronx Expressway on March 9, 2016.
In motion sequence no. 004, third- and second third-party defendant Jack Goldberg ("Goldberg") moves, pursuant to CPLR 3212, for an order granting him summary judgment, dismissing the third- and second third-party complaints and any and all claims asserted against him. Defendants/third-party plaintiffs Craig A. Mashas ("Mashas") and Champion Container Corporation ("Champion") and defendant/second third-party plaintiffs Blademie Rosales ("Rosales") and CG Transport LLC ("CG Transport") oppose Goldberg's motion.
In motion sequence no. 005, Plaintiff moves for an order, pursuant to CPLR 3212, for summary judgment against Mashas and Champion. Additionally, Plaintiff seeks dismissal of all affirmative defenses as to his liability, including comparative fault and culpable conduct, as well as the affirmative defense regarding failure to wear seatbelt, and seeks that the Court direct a trial only on the issue of damages. Mashas and Champion oppose Plaintiffs motion.
BACKGROUND FACTS AND PROCEDURAL HISTORY
Javier Santiana ("Santiana") operated the first of the five vehicles involved in the accident. He is not a party to this lawsuit and was not deposed by the parties in this case.
Goldberg owned and operated the second vehicle in the chain (NYSCEF Doc No. 125, Keenan affirmation, Exhibit K, Goldberg aff). He attests in an affidavit that on March 9, 2016 at approximately 8:15 a.m.. he was traveling northbound on the Cross Bronx Expressway near the Sheridan Expressway exit when he was involved in an accident (id., ¶ 2). Prior to the accident, Goldberg was traveling in the left-hand lane of the expressway, going no more than 1-5 miles per hour due to heavy traffic, when Plaintiffs vehicle rear-ended his vehicle (id., ¶ 3). This impact propelled Goldberg's vehicle forward and into Santiana's vehicle (id.). At the scene of the accident, Goldberg learned that an 18-wheel tractor trailer operated by Mashas collided with a box truck operated by Rosales (id., ¶ 4). Rosales's vehicle then, in turn, struck Plaintiffs vehicle, which caused it to rear-end Goldberg's vehicle (id.). Goldberg did not rear-end Santiana's vehicle until he was struck by Plaintiff from behind (id., ¶ 5). The collision of Goldberg's vehicle with Plaintiffs and Santiana's vehicles caused it to sustain extensive rear-end damage and minor frontend damage (id.). Goldberg states that he did not cause the accident (id, ¶ 6).
Plaintiff owned and operated the third vehicle (a black Jeep Hummer 2) in the chain. Plaintiff testified that on March 9, 2016, between 9:00 and 9:15 a.m., he was driving on the Cross Bronx Expressway (NYSCEF Doc. No. 128, Keenan affirmation, Exhibit L, plaintiff tr at21, 23-24, 30). Immediately before the accident, Plaintiff was driving on the northbound left lane; the traffic conditions were "normal" and traffic was moving well (id. at 34, 39). Plaintiffs vehicle was at a minimum of four to five car lengths behind Goldberg's (id. at 39-40). Plaintiff was driving approximately 40 to 45 miles per hour and was maintaining a steady speed when Goldberg's vehicle braked suddenly because the vehicle in front of it in the same lane had stopped "without blinkers, or anything on it," causing Plaintiff to also brake and deaccclcrate (id. at 38, 41- 42, 53, 63-64). Within seconds of bringing his vehicle to a complete stop, Rosales's vehicle, a white truck, struck Plaintiffs vehicle from behind and pushed it forward almost two car lengths into the rear of Goldberg's vehicle (NYSCEF Doc. No. 128 at 42, 44, 53, 64-65, 67. 75). Subsequently, Mashas's vehicle struck Plaintiffs vehicle, which was stopped, on the right side, lifting Plaintiff s vehicle and breaking its windows (id. at 46-48, 53, 75-76, 79-80). Plaintiff testified that, based on his review of the police report for the accident, the collision between his vehicle and Goldberg's vehicle caused Goldberg's vehicle to rear-end Santiana's vehicle, making the collision a five-automobile accident (id. at 46, 77-78). Plaintiff was treated at a hospital and suffered multiple bodily injuries as a result of the accident (id., passim). Plaintiff also testified that he was wearing a seatbelt when the accident occurred (id. at 98).
Rosales operated the fourth vehicle (a white box truck) in the chain. At the time of the accident, Rosales was employed as a driver for CG Transport delivering merchandise to auto dealerships (NYSCEF Doc No. 126, Keenan affirmation, exhibit M, Rosales tr at 11-12, 19, 27-28). The vehicle that Rosales was operating was owned by CG Transport (id. at 11). Rosales was travelling north in the left lane on the Cross Bronx Expressway when the accident occurred (id. at 37-38, 40-41,96). Rosales did not recall the highest rate of speed at which he was driving or what the traffic conditions were like at that time, but he stated that traffic was moving and the lanes were "full" (id. at 39-40, 99). Rosales testified that, when Plaintiffs vehicle traveling in front of him stopped, he hit his brakes with medium force (id. 46,49-50). Rosales testified that at the same time as he applied his brakes, Mashas's vehicle struck his vehicle from behind (id. at 49-50, 53-54, 63). This impact caused Rosales's vehicle to strike Plaintiffs vehicle on the right rear passenger side and strike the concrete barrier to the left of the lane (id. at 54-56, 59, 101, 108-109). Rosales could not recall how many car lengths separated his vehicle from Plaintiff s before he felt the rear-end impact from Mashas's vehicle (id. at 49-50). Rosales could also not recall whether a collision between Plaintiffs vehicle and Goldberg's vehicle occurred before he rear-ended Plaintiff (id. at 49-50). Nonetheless, Rosales believes that only one impact occurred between his vehicle and Plaintiffs vehicle (id. at 110). After the accident, Rosales observed Plaintiffs and Goldberg's vehicles in contact with each other (id. at 115). Rosales observed damage in the front and back of his vehicle and only minor damage to Plaintiffs vehicle (id. at 75).
Mashas operated the fifth vehicle (a red truck) in the chain. Mashas testified that at the time of the accident, he was employed by Champion as a "warehouse slash driver" (NYSCEF Doc No. 127, Keenan affirmation, exhibit N, Mashas tr at 8- 9). His general duties included making deliveries for Champion, and the vehicle he was operating was leased by Champion and owned by Ryder Truck Rental ("Ryder") (id. at 9-10, 13-14). Mashas testified that while driving on the Cross Bronx Expressway, in stop-and-go traffic, he observed Rosales's white box truck at least three car lengths, or approximately 70 feet, in front of him in the same lane (id. at 29, 36-37, 47). Mashas was driving at approximately 35 to 40 miles per hour 70 feet behind Rosales's vehicle when he saw Rosales's brake lights illuminate (id. at 40, 47-48). Mashas hit his brakes in response and "slowed considerably" but was unable to stop before rear-ending Rosales's vehicle with medium force (id. at 47-48). This collision caused the box truck to move forward and diagonally five feet to the left (id. at 48-49, 53). Mashas testified that Rosales's vehicle was already in contact with Plaintiffs vehicle before Mashas rear-ended Rosales (id. at 49-50, 56). Specifically, Mashas observed that the right rear quarter panel of Rosales's vehicle was in contact with the left rear bumper of Plaintiff s vehicle (id. at 127).
Mashas further testified that after the collision between Plaintiffs vehicle and Rosales's vehicle, both vehicles stopped moving (id. at 51-52, 127). After the accident, Mashas spoke to Plaintiff, who told him that Goldberg caused the accident by hitting Santiana's vehicle (id. at 60-61). Mashas also spoke to Goldberg, who indicated that a truck ran into all the vehicles involved in the accident (id. at 64-68). Mashas then observed damage in the front and the rear of Goldberg's vehicle after the accident (id. at 67). When police responded to the scene, Mashas told them that an accident occurred in front of him causing him to run into it with nowhere to go (id. at 71). Mashas further told the police that Rosales's vehicle struck Plaintiffs vehicle causing a chain reaction in front of it before his vehicle struck Rosales's vehicle (id. at 87-89). Mashas testified that his vehicle did not come into contact with any part of Plaintiffs vehicle during the chain accident, and that his vehicle was damaged in the front from rear-ending Rosales's vehicle only (id. at 97, 128).
On March 22, 2016, Plaintiff initially commenced this action by filing of a summons and verified complaint against Rosales, CG Transport, Mashas, and Ryder (NYSCEF Doc No. 115, Keenan affirmation, exhibit A). Subsequently, Plaintiff served an Amended Summons and Complaint naming Rosales, CG Transport, Mashas, Ryder and Champion as defendants (NYSCEF Doc No. 117, Keenan affirmation, exhibit C). On December 22,2020, Mashas and Champion filed a Third-Party Summons and Complaint against Goldberg (NYSCEF Doc No. 120, Keenan affirmation, exhibit F). Rosales and CG Transport followed suit by filing a Second Third-Party Complaint against Goldberg (NYSCEF Doc No. 122, Keenan affirmation, exhibit H).
DISCUSSION
A party moving for summary judgment under CPLR § 3212 "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" (Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324 [1986]). The "facts must be viewed in the light most favorable to the non-moving party" (Vega v Restani Constr. Corp., 18 N.Y.3d 499, 503 [2012] [internal quotation marks and citation omitted]). Once the moving party has met this prima facie burden, the burden shifts to the non-moving party to furnish evidence in admissible form sufficient to raise a material issue of fact (Alvarez, 68 N.Y.2d at 324). The moving party's "[f]ailure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers" (id.).
It is well settled that "[w]hcn approaching another vehicle from behind, drivers are required to maintain a reasonably safe rate of speed, maintain control over the vehicle, and use reasonable care to avoid a collision, by, among other things, including maintaining a safe distance" (Passos v MTA Bus Co., 129 A.D.3d 481, 481 [1st Dept 2015], citing Vehicle and Traffic Law § 1129 [a]). This rule imposes on drivers a "duty to be aware of the traffic conditions, including vehicle stoppages" (Johnson v Phillips, 261 A.D.2d 269, 271 [1st Dept 2000]; Mitchell v Gonzalez, 269 A.D.2d 250, 251 [1st Dept 2000] ["[a] driver is expected to drive at a sufficiently safe speed and to maintain enough distance between himself and cars ahead of him so as to avoid collisions with stopped vehicles, taking into account the weather and road conditions"]).
"[A] rear-end collision with a stopped vehicle, or with a vehicle that is coming to a stop, creates a prima facie case of negligence by the operator of the rear vehicle unless the operator proffers an adequate nonnegligent explanation for the accident" (Kalair v Fajerman, 202 A.D.3d 625, 626 ; accord Johnson, 261 A.D.2d at 271). "A claim that the driver of the lead vehicle made a sudden stop, standing alone, is insufficient to rebut the presumption of negligence" (Cabrera v Rodriguez, 72 A.D.3d 553, 553 [1st Dept 2010]). The rule applies "when the front vehicle stops suddenly in slow-moving traffic, even if the sudden stop is repetitive, when the front vehicle, although in stop-and-go traffic, stopped while crossing an intersection, and when the front car stopped after having changed lanes" (Johnson, 261 A.D.2d at 271 [internal citations omitted]). The rule also applies to multi-car, rear-end collisions where the presumption of liability rests with the rearmost driver (see Cabrera v Thomas, 193 A.D.3d 406, 407 [1st Dept 2021]; Chang v Rodriguez, 57 A.D.3d 295, 295 [1st Dept 2008]; Ferguson v Honda Lease Trust, 34 A.D.3d 356, 357 [1st Dept 2006]; De La Cruz v Ock Wee Leong, 16 A.D.3d 199, 200 [1st Dept 2005]; Mustafaj v Driscoll, 5 A.D.3d 138, 138-139 [1st Dept 2004]). The rearmost driver, thus, must present a "nonnegligent explanation for the accident" or "a nonnegligcnt reason for her failure to maintain a safe distance between her car and the lead car" (Mullen v Rigor, 8 A.D.3d 104, 104 [1st Dept 2004]). Additionally, "'[i]n chain collision accidents, the operator of the middle vehicle may establish prima facie entitlement to judgment as a matter of law by demonstrating that the middle vehicle was struck from behind by the rear vehicle and propelled into the lead vehicle'" (Skura v Wqjtlowski, 165 A.D.3d 1196, 1198-1199 [2d Dept 2018] [citation omitted]).
Motion Sequence No. 004
Applying the law set forth supra to the facts at hand, Goldberg has demonstrated his entitlement to summary judgment. Goldberg attested that he was traveling between 1-5 miles per hour when he was rear-ended by Plaintiff (NYSCEF Doc No. 125, Goldberg aff at ¶ 3), and Plaintiff testified that, although Goldberg stopped suddenly, Plaintiff was able to stop safely and completely before a rear-end impact to his vehicle pushed his vehicle into the rear of Goldberg's vehicle (NYSCEF Doc. No. 128 at 39-40, 63-64). Further, Plaintiff testified that he observed Goldberg's vehicle had stopped because the vehicle in front of Goldberg had also stopped. Only after coming to a complete stop behind Goldberg's vehicle was Plaintiff struck from behind by Rosales's vehicle, with the impact propelling him forward into Goldberg's vehicle (id. at 42-44, 53, 64-65, 67, 75). Thus, whether Goldberg's vehicle was stopped or stopping, Plaintiff kept a reasonably safe distance between his car and Goldberg's to allow Plaintiff to come to a complete stop without striking Goldberg's vehicle. It was only after Plaintiffs vehicle had stopped completely that the rear-end impacts occurred.
Mashas, Champion, Rosales and GC Company fail to raise a triable issue of fact. A sudden stop may rebut the presumption (see Berger v New York City Hous. Auth., 82 A.D.3d 531, 531 [1st Dept 2011]), such as where the driver in front "stop[s] suddenly and without warning in the lane of traffic for no apparent reason" (Vargas v Luxury Family Corp., A.D.3d 820, 821 [2d Dept 2010]). Here, the mere claim that Goldberg stopped suddenly is not sufficient to establish negligence on his part. The drivers behind Goldberg were required to maintain a safe distance between their cars and the cars in front of them, and Vehicle and Traffic Law § 1129 (a) imposed on them a duty to be aware of traffic conditions, including vehicle stoppages. Mashas described the traffic conditions as heavy, stop-and-go traffic. Although Rosales could not recall much about the circumstances surrounding the accident, he testified that the Cross Bronx Expressway was "full." These defendants have not demonstrated why, under the existing traffic conditions at that time, they were unable to maintain a reasonably safe distance between their vehicles and the vehicles in front of them (see Le Grand v Silberstein, 123 A.D.3d 773, 775 [2d Dept 2014]).
Mashas and Champion argue that Goldberg's motion for summary judgment is premature because he was not deposed, and the only evidence supporting Goldberg's position is his selfserving affidavit (NYSCEF Doc No. 129, Mashas and Champion Affirmation in Opposition ¶ 14). Rosales and GC Company also argue that Goldberg's motion is premature because without his deposition, these defendants cannot fully assess their own liability or the liability of the other parties, prejudicing them in this case (NYSCEF Doc No. 137, Rosales and CG Transport mem of law ¶ 19). Notwithstanding these arguments, Goldberg's motion for summary judgment is not premature because "[a] grant of summary judgment cannot be avoided by a claimed need to discovery unless some evidentiary basis is offered to suggest that discovery may lead to relevant evidence" (DaSilva v Haks Engs., Architects &Land Surveyors, P.C.., 125 A.D.3d 480, 482 [1st Dept 2015] [internal quotation marks and citation omitted]). Mashas, Champions, Rosales and GC Company fail to show how Goldberg's deposition may lead to relevant evidence. They also fail to set forth an evidentiary basis that Goldberg is exclusively within the knowledge of essential facts to justify their opposition to Goldberg's motion (see CPLR 3212[f]; Reale v Tsoukas, 146 A.D.3d 833, 835-836 [2d Dept 2017J; Global Mins. &Metals Corp, v Holme, 35 A.D.3d 93, 102-103 [1st Dept 2006]). Additionally, while Goldberg's deposition was not conducted by the parties, these defendants fail to show that they made any efforts or that they were diligent in pursuing his deposition (see Bailey v Gabrielli Truck Leasing LLC, 210 A.D.3d 573, 573 [1st Dept 2022]).
Mashas and Champion also argue that there is a material issue of fact regarding the speed in which Goldberg was travelling prior to the accident and how the accident occurred because his statements were contradicted by Plaintiffs and Mashas's deposition testimony (NYSCEF Doc No. 129, Mashas and Champion Affirmation in Opposition ¶ 6). Rosales and GC Company argue that there is a material issue of fact regarding whether Goldberg contributed to the collision by making a sudden stop because his affidavit is contradicted by Plaintiff and Mashas's testimonies, who stated that the traffic was moving at a higher speed than indicated by Goldberg (NYSCEF Doc No. 137, Rosales and CG Transport mem of law ¶¶ 13-15). Notwithstanding these arguments, Goldberg's testimony that he was involved in the accident only after Plaintiffs vehicle was propelled into Goldberg's vehicle from behind is unrebutted. These defendants did not challenge this part of Goldberg's testimony, nor have they demonstrated that they maintained a reasonably safe speed at a reasonably safe distance behind the vehicles in front of them.
Finally, when Goldberg filed his motion for summary judgment in 2021, he was required to submit a statement of facts pursuant to 22 NYCRR 202.8-g (a), but "blind adherence" to the rule is not mandated (On the Water Prods., LLC v Glynos, 211 A.D.3d 1480, 1481 [4th Dept 2022], quoting Leberman v Instantwhip Foods, Inc., 207 A.D.3d 850, 851 [3d Dept 2022]). The court will overlook Goldberg's failure to comply with the prior version of 22 NYCRR 202.8-g and will not deny Goldberg's motion for summary judgment on that ground.
Motion Sequence No. 005
Summary Judgment Against Mashas and Champion
Plaintiff has not met his prima facie burden showing that he is entitled to judgment as a matter of law against Mashas and Champion because he failed to submit sufficient evidence to demonstrate the absence of any material issues of fact (see CPLR 3212). In support of his motion, Plaintiff submitted his deposition transcript and that of Mashas, in which they provided conflicting versions of what happened during the accident on March 9, 2016. If Plaintiffs testimony is credited, Plaintiff was involved in three collisions: the first impact was with Rosales's vehicle, the second impact was with Goldberg's vehicle, and the third impact was with Mashas's vehicle. Plaintiff testified that he was at a complete stop when Rosales rear-ended his vehicle, propelling him forward into the rear of Goldberg's vehicle. At that point, Mashas's vehicle struck Plaintiffs vehicle on the right side from behind. If Mashas's testimony is credited, Rosales's vehicle rear-ended Plaintiffs vehicle before Mashas rear-ended Rosales's vehicle. Under Mashas's version, at no point did his vehicle strike any part of Plaintiff s vehicle.
Conflicting testimony regarding the sequence of the collisions between Plaintiffs, Rosales's, and Mashas's vehicles, and whether the rearmost driver, Mashas, or the fourth driver in the chain, Rosales, was at fault pertain to credibility issues, which are inappropriate for summary judgment (see Detoma v Dobson, 214 A.D.3d 948, 949 [2d Dept 2023]; Oluwatayo v Dulinayan, 142 A.D.3d 113, 116-117 [1st Dept 2016]). By submitting deposition transcripts setting forth conflicting testimonies regarding whether the accident involved two or three collisions, Plaintiff has not eliminated all triable issues of fact.
Summary Judgment Dismissing Affirmative Defenses Alleging Comparative Negligence as to Plaintiff and the Failure to Wear a Seatbelt
Plaintiffs motion for summary judgment dismissing Mashas and Champion's first affirmative defense (NYSCEF Doc No. 116, Keenan affirmation, exhibit B at 1), and Rosales and CG Transport's second, third, and fourth affirmative defenses (NYSCEF Doc No. 119, Keenan affirmation, exhibit E, ¶¶ 31-33), is granted to the extent of finding that Plaintiff has no culpable conduct in causing the subject motor vehicle accident.
"[T]he issue of a plaintiffs comparative negligence may be decided in the context of a summary judgment motion where, as here, the plaintiff moves for summary judgment dismissing an affirmative defense alleging comparative negligence" (Xiuying Cui v Hussain, 207 A.D.3d 788, 789 [2d Dept 2022]). As stated above, Plaintiff testified that he brought his vehicle to a complete stop when the Goldberg vehicle stopped. Rosales testified that, after Plaintiff came to a complete stop, he hit the brakes and was simultaneously rear-ended by Mashas's vehicle and propelled forward into Plaintiffs vehicle. Mashas, on the other hand, testified that Rosales's vehicle had already struck Plaintiffs vehicle before Mashas rear-ended Rosales's vehicle. Under any of these scenarios, Plaintiff could not have been comparatively negligent for the occurrence of this accident, and Mashas, Champion, Rosales and GC Company failed to raise an issue of fact as to Plaintiffs liability.
Mashas and Champion's third affirmative defense and Rosales and CG Transport's twelfth affirmative defense alleging that Plaintiff failed to wear his seatbelt (see NYSCEF Doc No. 116, Keenan affirmation, exhibit B at 2; NYSCEF Doc No. 119, Exhibit E at ¶ 41) are also dismissed. Plaintiffs unrebutted testimony is that he was wearing his seatbelt when the accident occurred (NYSCEF Doc. No. 128, Keenan affirmation, Exhibit L, plaintiff tr at 98).
The court has considered the parties' remaining contentions and finds them unavailing. All relief not expressly addressed herein is denied.
Accordingly, it is
ORDERED that the motion brought by third- and second third-party defendant Jack Goldberg for summary judgment (motion sequence no. 004) is granted and the third-party complaint and second third-party complaint are dismissed against him; and it is further
ORDERED that the Clerk of the Court shall enter judgment in favor of third- and second third-party defendant Jack Goldberg dismissing the third-party complaint and second third-party complaint; and it is further ORDERED that the action is severed and continued against the remaining defendants; and it is further
ORDERED that the caption be amended to reflect the dismissal and all future papers filed with the court bear the amended caption; and it is further
ORDERED that the part of Plaintiff Humberto Taveras's motion for summary' judgment against defendants Craig A. Mashas and Champion Container Corporation on the issue of their liability (motion sequence no. 005) is denied; and it is further
ORDERED that the part of Plaintiff Humberto Taveras's motion for summary' judgment dismissing Mashas and Champion's first and third affirmative defenses and the second, third, fourth, and twelfth affirmative defenses of defendant/second third-party plaintiffs Blademie Rosales and CG Transport LLC is granted to the extent of finding that Plaintiff has no culpable conduct in causing the subject motor vehicle accident and that Mashas and Champion's first and third affirmative defenses and Rosales and CG Transport's second, third, fourth, and twelfth affirmative defenses are dismissed; and it is further
ORDERED that the balance of Plaintiff Humberto Taveras's motion is denied.
This constitutes the Decision and Order of the Court.