Opinion
Index No. 605098/2019 Mot Seq 001 MG; RTC
10-01-2019
STEPHEN TKAPASSU & KAILA TRAPASSAO,Plaintiff, v. HOI LOUIS, Defendant.
PLAINTIFF'S COUNSEL: Michael J. Brown PC. DEFENDANT'S COUNSEL: Gentile & Tambasco.
Unpublished Opinion
Motion Submit Date: 10/31/19.
PLAINTIFF'S COUNSEL: Michael J. Brown PC.
DEFENDANT'S COUNSEL: Gentile & Tambasco.
PRESENT: HON. WILLIAM G. FORD, JUSTICE OF THE SUPREME COURT.
WILLIAM G. FORD, J.S.C.
In plaintiffs electronically filed personal injury negligence action on plaintiffs motion for partial summary judgment as to liability pursuant to CPLR 32.2, this Court considered the following. NYSCEF Docs. Nos. 4 - 17: and upon due deliberation and full consideration of all of the above, it is ORDERED that plaintiffs motion seeking partial summary judgment as to liability pursuant to CPLR 3212 against defendant is granted as follows: and it is further
ORDERED that plaintiffs counsel is hereby directed to serve a copy °f this decision and order with notice of entry on defense counsel electronically and via email; and it is further
ORDERED that plaintiff is further hereby directed to place this matter on the damages in this action; and it is further defends counsel is also hereby directed to give notice to the Suffolk County Clerk as required by CPLR 8019(c) with a copy of this decision and order and pay any required.
BACKGROUND & POSTURE
On March 15, 2019, plaintiffs electronically commenced this personal injury negligence action against defendants arising out of' a motor vehicle collision which occurred on November 15, 2018. By the pleadings filed, plaintiff seeks damages for personal injury premised on defendants negligence as a proximate cause of the underlying motor vehicle collision and attendant alleged serious injuries. Defendant joined issue filing an answer on May 8, 2019. A review of the electronic court file kept and maintained by NYSCEF indicates that formal pretrial disclosure in this matter has yet to commence as neither party has requested a preliminary conference. Nevertheless, now before the Court is plaintiffs opposed motion for partial summary judgment on liability against the defendants, which is resolved as follows.
In support of the application, plaintiff submits a copy of the pleadings, plaintiffs' affidavits in support and an uncertified copy of the police accident investigation report.
Testifying by affidavit in support of the application for judgment as a matter of law on liability, plaintiffs state in sum and substance that plaintiff Stephen Trapasso operated a 2018 Lexus vehicle, with his wife plaintiff Paula Trapasso as a passenger, travelling southbound which came to a stop at the intersection of Thome Drive and Central Avenue in Oyster Bay, Nassau County. New York. While stopped for at least 30 seconds, plaintiffs state that the rear of their vehicle was struck by a 2005 Honda vehicle operated by defendant travelling westbound on Central Avenue.
STANDARD OF REVIEW
The motion court's role on review of a motion for summary judgment is issue finding, not issue determination (Trio Asbestos Removal Corp. v Gabriel & Sciacca Certified Pub. Accountants, LLP, 164 A.D.3d 864, 865, 82 N.Y.S.3d 127, 129 [2d Dept 2018]). The court should refrain from making credibility determinations (Gniewek v Consol. Edison Co., 271 A.D.2d 643, 643, 707 N.Y.S.2d 871 [2d Dept 2000]).
It is well settled that summary judgment is a drastic remedy which should not be granted when there is doubt as to the existence of a triable issue of fact. Where, however, one seeking summary judgment tenders evidentiary proof in admissible form establishing its defense sufficiently to warrant the court as a matter of law in directing judgment in its favor, the burden falls upon the opposing party to show, also by evidentiary proof in admissible form, that there is a material issue of fact requiring a trial of the matter (see Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595 [1980]). The evidence presented on a motion for summary judgment must be scrutinized in the light most favorable to the party opposing the motion (see Goldstein v. Monroe County, 77 A.D.2d 232, 236, 432 N.Y.S.2d 966 [1980]).
The proponent on a motion of summary judgment 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 o f fact (Alvarez v Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923 [1986]; Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 487 N.Y.S.2d 316 [1985];]; Zuckerman v City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595 [1980]).
If the moving party fails in meeting this burden, the motion must be denied. If, however. this burden is satisfied, then the burden shifts to the opposing party to establish the existence of material issues of fact requiring a trial (see Zuckerman, supra). The function of the court in determining a motion for summary judgment is issue finding, not issue determination (Pantote Bis AlphaFoods, Inc. v Schefman, 121 A.D.2d 295. 503 N.Y.S.2d 58 [1st Dept. 1986]).
The burden then shifts to the party opposing the motion which must produce evidentiary proof in admissible form sufficient to require a trial of the material issues of fact (Roth v Barreto, 289 A.D.2d 557, 735 N.Y.S.2d 197 [2d Dept. 2001]; Rebecchi v Whitmore, 172 A.D.2d 600, 568 N.Y.S.2d 423 [2d Dept. 1991]: O'Neill v Fish kill, 134 A.D.2d 487, 521 N.Y.S.2d 272 [2d Dept. 1987]). The law is well-established that summary judgment is a drastic remedy to be granted only when there is clearly no genuine issue of fact to be presented at trial (see Andre v Pomeroy, 35 N.Y.2d 361. 362 N.Y.S.2d 131 [1974]; Benincasa v Garrubo, 141 A.D.2d 636, 529 N.Y.S.2d 797 [2d Dept. 1988|).
DISCUSSION
The plaintiff in a negligence action moving for summary judgment on the issue of liability must establish, prima facie, that the defendants breached a duty owed to the plaintiff and that the defendants' negligence was a proximate cause of the alleged injuries (Montalvo v Cedeno, 170 A.D.3d 1166 [2d Dept 2019]; accord Buchanan v Keller, 169 A.D.3d 989, 991, 95 N.Y.S.3d 252. 254 [2d Dept 2019] [holding that plaintiff-movant seeking summary judgment on liability is no longer required to show freedom from comparative fault in order to establish prima facie entitlement to judgment as a matter of law]; quoting Rodriguez v. City of New York, 3 1 N.Y.3d 312 (2018]).
A rear-end collision with a stopped or stopping vehicle creates a prima facie case of negligence with respect to the operator of the moving vehicle and imposes a duty on the operator to rebut the inference of negligence by providing a non-negligent explanation for the collision" (Mulhern v Gregory, 161 A.D.3d 881, 883. 75 N.Y.S.3d 592, 594 [2d Dept 2018]; Comas-Bourne v City of New York, 146 A.D.3d 855, 856, 45 N.Y.S.3d 182, 183 [2d Dept 2017]; Whelan v Sutherland, 128 A.D.3d 1055, 1056, 9 N.Y.S.3d 639, 640 [2d Dept 2015]; Tutrani v. County of Suffolk, 10 N.Y.3d 906, 908; Gutierrez v. Trillium USA, LLC, 111 A.D.3d 669, 670-671, 974 N.Y.S.2d 563; Pollard v. Independent Beauty & Barber Supply Co., 94 A.D.3d 845. 846, 942 N.Y.S.2d 360; Perez v Roberts, 91 A.D.3d 620, 621, 936 N.Y.S.2d 259, 260 [2d Dept 2012]; Le Grand v Silberstein, 123 A.D.3d 773, 774, 999 N.Y.S.2d 96, 97 [2d Dept 2014]).
The claim that the lead vehicle made a sudden stop, standing alone, is insufficient to rebut the presumption of negligence on the part of the following vehicle (see Zdenek v Safety Consultants, Inc., 63 A.D.3d 918, 918, 883 N.Y.S.2d 57, 58 [2d Dept 2009]; Kastritsios v. Marcello, 84 A.D.3d 1174, 923 N.Y.S.2d 863; Franco v. Breceus, 70 A.D.3d 767, 895 N.Y.S.2d 152; Mallen v. Su, 67 A.D.3d 974, 890 N.Y.S.2d 79; Rainford v. Han, 18 A.D.3d 638, 795 N.Y.S.2d 645; Russ v. Investech Sees., 6 A.D.3d 602. 775 N.Y.S.2d 867; Xian Hong Pan v Buglione, 101 A.D.3d 706. 707, 955 N.Y.S.2d 375, 377 [2d Dept 2012]). However, "[i]f the operator cannot come forward with any evidence to rebut the inference of negligence, the plaintiff may properly be awarded judgment as a matter of law'" (Barile v. Lazzarini, 222 A.D.2d 635. 636, 635 N.Y.S.2d 694; D'Agostino v YRC, Inc., 120 A.D.3d 1291, 1292. 992 N.Y.S.2d 358, 359 [2d Dept 2014]).
"'When the driver of an automobile approaches another automobile from the rear, he or she is bound to maintain a reasonably safe rate of speed and control over his vehicle, and to exercise reasonable care to avoid colliding with the other vehicle" (Comas-Bourne v City of New York, 146 A.D.3d 855, 856. 45 N.Y.S.3d 182, 18312d Dept 20171). Drivers have a duty to see what should be seen and to exercise reasonable care under the circumstances to avoid an accident (Williams v Spencer-Hall, 113 A.D.3d 759. 760, 979 N.Y.S.2d 157, 159 [2d Dept 2014]). a rear-end collision with a stopped vehicle creates a prima facie case of liability with respect to the operator of the rearmost vehicle, thereby requiring that operator to rebut the inference of negligence by providing a nonnegligcnt explanation for the collision (Sayyed v Murray, 109 A.D.3d 464, 464, 970 N.Y.S.2d 279, 281 [2d Dept 2013]).
A possible non-negligent explanation for a rear-end collision could be the sudden stop of the lead vehicle." however, it is equally true that -'vehicle stops which are foreseeable under the prevailing traffic conditions, even if sudden and frequent, must be anticipated by the driver who follows, since he or she is under a duty to maintain a safe distance between his or her car and the car ahead" (Tumminello v City of New York, 148 A.D.3d 1084, 1085. 49 N.Y.S.3d 739, 741 [2d Dept 2017]; Shamalt v. Richmond County Ambulance Serv., 279 A.D.2d 564, 565, 719 N.Y.S.2d 287; see Gutierrez v Trillium USA, LLC, 111 A.D.3d 669, 671, 974 N.Y.S.2d 563. 566 [2d Dept 2013]; Robayo v. Aghaahdul, 109 A.D.3d 892, 893. 971 N.Y.S.2d 317). Even assuming that a lead vehicle stopped short or suddenly, following vehicles should not escape liability for an assumed failure to maintain a proper or safe following distance under the presented circumstances, where the record presents a scenario with triable questions of fact ripe for jury determination, rather than summary determination on the law (see e.g. Romero v Al Haag & Son Plumbing & Heating, Inc., 113 A.D.3d 746, 747, 978 N.Y.S.2d 895. 896 [2d Dept 2014][even assuming that the defendant driver failed to maintain a reasonably safe distance and rate of speed while traveling behind the plaintiffs vehicle under Vehicle and Traffic Law § 1129[a], defendant's deposition testimony relied upon by plaintiff, itself raised a triable issue of fact on whether the plaintiff contributed to the accident by driving in an erratic manner]; accord Fernandez v Babylon Mum Solid Waste, 117 A.D.3d 678, 679, 985 N.Y.S.2d 289. 290 [2d Dept 2014][under circumstances where plaintiff came to an abrupt stop for no apparent reason resulting in a collision, a triable issue of fact exists]; Sokolowska v Song, 123 A.D.3d 1004. 1004, 999 N.Y.S.2d 847, 848 [2d Dept 2014]).
Thus, the burden is placed on the driver of the offending vehicle, as he or she is in the best position to explain whether the collision was due to a mechanical failure, a sudden stop of the vehicle ahead, unavoidable skidding on wet pavement, or some other reasonable cause (see Abbott v Picture Cars E., Inc., 78 A.D.3d 869. 911 N.Y.S.2d 449 [2d Dept 2010]; DeLouise v S.K.I. Wholesale Beer Corp., 75 A.D.3d 489, 904 N.Y.S.2d 761 [2d Dept 2010]; Moran v Singh, 10 A.D.3d 707, 782 N.Y.S.2d 284 [2d Dept 2004]).
Here, notwithstanding plaintiffs' submission of an uncertified police accident investigation report, which for reasons stated below, having reviewed his moving papers, the Court finds that plaintiff has met his prima facie burden for entitlement to summary judgment on liability based on the submission of her sworn testimony which demonstrates a prima facie case of negligence against the defendant. Thus, the burden has shifted to defendants to come forward with a non-negligent explanation for the incident.
Arguing in opposition to plaintiffs'" motion by counsel's affirmation, defendant first contends that the application is premature and results in substantial and unfair prejudice under CPLR 3212(f) since now pretrial discovery has yet been conducted. This line of argument is unavailing and here is insufficient to preclude entry of summary judgment. Recent caselaw within the Second Department clearly holds that under similar circumstances as regards non-movant's claim of outstanding discovery as an impediment to the consideration of summary judgment "[w]here outstanding discovery identified by the non-movant seeks production solely of evidence pertaining to plaintiffs comparative fault, such a motion is not premature in light of the fact that plaintiff is no longer required to show freedom from comparative fault in order to establish a prima facie case of the defendants' liability (Francois v Tang, 2018-03447, 2019 WL 1782208, at * 1 [2d Dept Apr. 24, 20191). Thus, to the extent that defendant seeks to conduct discovery regarding liability, and really the extent or scope of plaintiff s comparative fault for the underlying incident, that no longer is relevant in the post Rodriguez landscape. More importantly, the Second Department is clear that defendant's mere hope or speculation that additional discovery might lead to or create a triable fact issue is insufficient to preclude the entry of summary judgment on liability in this negligence motor vehicle action (see e.g. Rodriguez v Farrell, 115 A.D.3d 929, 931, 983 N.Y.S.2d 68, 70 [2d Dept 2014][appellate court determining that summary judgment not premature where defendant failed to demonstrate that discovery would lead to relevant evidence or that facts essential to justify opposition to the motions were exclusively within the knowledge and control of the plaintiffs]; Medina v Rodriguez, 92 A.D.3d 850, 851, 939 N.Y.S.2d 514, 515 [2d Dept 20121; Kimyagarov v Nixon Taxi Corp., 45 A.D.3d 736, 737, 846 N.Y.S.2d 309, 310-11 [2d Dept 2007]; Hill v Ackall, 71 A.D.3d 829, 829-30, 895 N.Y.S.2d 837, 838 [2d Dept 2010]). Defendant's arguments simply do not meet this standard and thus they are unsuccessful in invoking CPLR 3212(f) to prevent this Court from weighing the issuance of summary judgment on liability in plaintiffs" favor.
Next, defendants challenge submission and consideration of an uncertified copy of the police accident investigation report. They are correct to do so as the caselaw is legion that holds for the proposition that it constitutes inadmissible hearsay as an uncertified document, not satisfying the requirements of the business records exception to the hearsay rule.
The Second Department has previously stated as much holding that "[p]ursuant to CPLR 4518(a), a police accident report is admissible as a business record so long as the report is made based upon the officer's personal observations and while carrying out police duties. If information contained in a police accident report was not based upon the police officer's personal observations, it may nevertheless be admissible as a business record "if the person giving the police officer the information contained in the report was under a business duty to relate the facts to him [or her]" (Memenza v Cole, 131 A.D.3d 1020. 1021-22, 16 N.Y.S.3d 287, 289 [2d Dept 2015]; accord Shehab v Powers, 150 A.D.3d 918, 919, 54 N.Y.S.3d 104, 106 [2d Dept 2017] [information in a police accident report is "admissible as a business record so long as the report is made based upon the officer's personal observations and while carrying out police duties", however also holding that information in a police accident report is inadmissible where the information came from witnesses not engaged in the police business in the course of which the memorandum was made, and the information does not qualify under any other hearsay exception ]).
Here, plaintiffs' counsel's mere conclusory assertion that the report is admissible under CPLR 41518 and 4520 does is not a sufficient basis for this Court to ignore its inadmissibility. Thus, because it is not in admissible form, this Court will not consider it as competent proof in support of plaintiffs" application.
Nevertheless, even without the report, the balance of plaintiff s affidavit testimony-suffices permitting plaintiff has to meet the prima facie burden for entitlement to summary judgment on liability for a case ol negligence against defendant. Defendant opposes plaintiffs" motion for summary judgment arguing the existence of triable questions of fact. However, this opposition exists solely in the form of counsel's affirmation, argument which in and of itself does not constitute competent or admissible evidence. Nowhere in defendant's opposition is any affidavit from defendants or any other tangible piece of evidence supplied. Thus, defendants fail to carry their shifted burden of rebutting plaintiffs prima facie case of negligence against them by competent or admissible proof raising a triable question of fact meriting a liability trial and precluding judgment as a matter of law on liability for the plaintiff.
The law in this regard is settled. Defendants reliance on their attorney's affirmation, without further submission of sworn testimony by any competent witness with direct personal or firsthand knowledge of the facts and circumstances underlying the subject accident, is insufficient to establish triable issues of fact warranting denial of summary judgment. The Second Department has repeatedly cautioned counsel on this point (Huerta v Longo, 63 A.D.3d 684. 685. 881 N.Y.S.2d 132, 133 [2d Dcpt 2009]; Collins v Laro Serv. Sys. of New York, Inc.. 36 A.D.3d 746, 746-47, 829 N.Y.S.2d 168, 169 [2d Dept 2007[[attorney's affirmation, together with inadmissible hearsay documents insufficient to warrant denial of the motion]; Cordova v Vinueza. 20 A.D.3d 445, 446, 798 N.Y.S.2d 519, 521 [2d Dept 2005][attorney's affirmation offering speculation unsupported by any evidence insufficient to raise a triable issue of fact]).
Because defendant has failed to come forward with competent and admissible proof demonstrating triable issues of fact or non-negligent explanations for the collision here. necessitating a trial on his liability, this Court grants plaintiffs partial summary judgment on liability against defendant under CPLR 3212.
The foregoing constitutes the decision and order of this Court.