Opinion
Index No. 604995/2017 Motion Seq. 2-MD
09-25-2019
OLGA TORRES, Plaintiff, v. VINCENT D. PRESTIGACOMO, LAURA DESIMONE and FRANCIS DESIMONE, Defendant.
Unpublished Opinion
DECISION AND ORDER
HON. LINDA KEVINS, JUSTICE OF THE SUPREME COURT
The following papers have been read on this Motion by Plaintiff:
Notice of Motion, Affirmation & Exhibits.............................................. 1
Affirmation in Opposition & Affidavit by Defendant Prestigacomo............... 2
Affirmation in Opposition by Defendant Desimone.................................. 3
Reply Affirmation......................................................................... 4
Upon the foregoing papers, it is Ordered that this Motion is decided as follows:
Plaintiff seeks an Order granting summary judgment pursuant to CPLR 3212 on the issue of liability against Defendants and striking Defendants' respective affirmative defenses of Comparative Negligence/Fault. The Defendant Prestigacomo opposes such application and the Defendants Desimone oppose Plaintiffs application granting summary judgment.
Plaintiff commenced this action to recover damages for personal injuries allegedly sustained in a three vehicle rear end collision, which occurred on September 28, 2014, on Route 25A (i.e. "North Country Road"), eastbound, at or near its intersection with Fairway Drive, in the Town of Brookhaven, Suffolk County, New York, at approximately 11:50 a.m.. At this location, Route 25 A consists of two lanes of travel in each direction with a center turning lane dividing the lanes of travel. It is undisputed that the Plaintiff was the owner/operator of the lead vehicle, a Ford SUV, Defendant Laura A. Desimone (hereinafter "Desimone") was the operator of the middle vehicle, a grey Hyundai, owned by Francis A. DeSimone, and Defendant Vincent D. Prestigacomo (hereinafter "Prestigacomo") was the owner and operator of the rear most vehicle, a black SUV/BMW. Issue has been joined by all parties.
Plaintiff now moves for an order granting Summary Judgment in her favor on the issue of liability and striking Defendants' respective affirmative defenses of Comparative Negligence/Fault. In support of the motion, Plaintiff submits copies of the pleadings, amended pleadings, depositions, and certified Police report. Defendants have each submitted Affidavits in Opposition.
The proponent of a Summary Judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issue of fact (see Alvarez v Prospect Hosp., 68 N.Y.2d 320 [1986]; Winegrad v New York Univ. Med Ctr,, 64 N.Y.2d 851 [1985]). 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 [2d Dept 2001]; Rebecchi v Whitmore, 172 A.D.2d 600 [2d Dept 1991 ]; O'Neill v Town of Fishkill, 134 A.D.2d 487 [2d Dept 1987]).
The New York Court of Appeals has recently clarified plaintiff-movant's burden finding that a plaintiff is no longer required to show freedom from comparative fault in establishing his or her prima facie case, holding that plaintiff-movant seeking partial summary judgment on liability in a motor vehicle accident litigation "[t]o be entitled to partial summary judgment,... does not bear the double burden of establishing a prima facie case of defendant's liability and the absence of his or her own comparative fault." (see Rodriguez v. City of New York, 31 N.Y.3d 312, 76 N.Y.S.3d 898, 101 N.E.3d 366, 2018 N.Y. Slip Op. 02287, 2018 WL 1595658 [Apr. 3, 2018]). Edgerton v City of New York, 160 A.D.3d 809, 811 [2d Dept 2018]. Whether a Plaintiff has any comparative negligence is insufficient to deny the instant motion. Rodriguez, supra
It is well settled that a driver has a duty to maintain control of their vehicle so that when approaching another vehicle from the rear, the driver is bound to maintain a reasonably safe rate of speed, and to use reasonable care to avoid colliding with the other vehicle (see Tutrani v County of Suffolk, 64 A.D.3d 53 [2d Dept 2009]; Gaeta v Carter, 6 A.D.3d 576 [2d Dept 2004]; Chepal v Meyers, 306 A.D.2d 235 [2d Dept 2003]). Thus, the occurrence of a rear-end collision with a stopped or stopping vehicle creates a prima facie case of negligence on the part of the operator of the following vehicle and imposes a duty on that operator to come forward with a non-negligent explanation for the collision (see Hauser v Adamov, 74 A.D.3d 1024 [2d Dept 2010]; Arias v Rosario, 52 A.D.3d 551 [2d Dept 2008]; Leal v Wolff 224 A.D.2d 392 [2d Dept 1996]). This 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 [2d Dept 2010]; DeLouise v S.K.I. Wholesale Beer Corp., 75 A.D.3d 489 [2d Dept 2010]; Moran v Singh, 10 A.D.3d 707 [2d Dept 2004]; Barile v Lazzarini, 222 A.D.2d 635 [2d Dept 1995]).
It is undisputed that on September 28, 2014, Plaintiff was involved in a three-vehicle collision while stopped at a traffic light located at or near the intersection of Route 25A and Fairway Drive, Town of Brookhaven, Suffolk County, New York. It is also undisputed that Plaintiff (first vehicle, Ford SUV) was the operator of the first car, Defendant Desimone (second vehicle, grey Hyundai) was the operator of the middle vehicle and Defendant Prestigacomo (third vehicle SUV/BMW) was the operator of the third and last vehicle. It is further undisputed that Route 25A at this location is a two-way street with two lanes in either direction separated by a turning lane.
Plaintiff alleges by deposition that at the time of the multi vehicle accident she was fully stopped for a traffic light for over thirty (30) seconds prior to the happening of the collision. Plaintiff also contends she observed, in her rear-view mirror, the Defendant Desimone vehicle pull up behind her and come to a stop and then also observed the Defendant Prestigacomo vehicle hit the Defendant Desimone vehicle, as a result of which the Defendant Desimone vehicle struck Plaintiffs vehicle in the rear.
Here, Plaintiffs submissions are sufficient to make a prima facie showing of entitlement to Summary Judgment on the issue of liability (see Kastritsios v Marcello, 84 A.D.3d 1174 [2d Dept 2011]; Bernier v Torres, 79 A.D.3d 776 [2d Dept 2010]; Mandel v Benn, 67 A.D.3d 746 [2d Dept 2009]). The burden, then, shifted to Defendants to offer a non-negligent explanation for the accident sufficient to raise a triable issue of fact (see Emil Norsk & Son, Inc. v L.P. Transp., Inc., 30 A.D.3d 368 [2d Dept 2006]; Rainford v Han, 18 A.D.3d 638 [2d Dept 2005]).
" '[A] rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the operator of the rear vehicle, requiring that operator to come forward with evidence of a nonnegligent explanation for the collision in order to rebut the inference of negligence' (Lopez v. Dobbins, 164 A.D.3d 776. 777, 79 N.Y.S.3d 566; see Arslan v. Costello, 164 A.D.3d 1408, 1409 [2018])." Morgan v Flippen, 173 A.D.3d 735 [2d Dept 2019], Defendant Desimone, in opposition, alleges by deposition that approximately ten (10) seconds prior to the collision, she observed the Plaintiffs vehicle in front of her at a full stop for a red light controlling the intersection ahead of the traffic. Defendant Desimone further alleges she brought her vehicle to a full stop behind the Plaintiffs vehicle and, was herself, fully stopped for approximately five (5) seconds before her vehicle came into contact with the Plaintiffs vehicle in front of her. Defendant Desimone contends she felt two (2) impacts to her vehicle: the first impact involved the rear of her vehicle and the Defendant Prestigacomo vehicle and the second impact occurred as a result of the first impact and was between the front of her vehicle and the rear of Plaintiffs vehicle.
Defendant Prestigacomo, in opposition, alleges by deposition that at the time of the collision the traffic conditions were heavy, bumper-to-bumper and the lanes of travel were backed up, he observed a red light ahead and was moving with traffic at a speed of about 15-20 miles an hour. Defendant Prestigacomo also states he noticed the car in front of him approximately one second prior to the impact at a distance of 10-15 feet in front of him and just prior to the collision he saw the Defendant Desimone vehicle come to a sudden, "abrupt stop" directly in front of him, heard screeching tires, and observed the Defendant Desimone vehicle "jerk," like it had hit the car in front of it. (Plaintiff Ex. H, Defendant Deposition at 42-43, Defendant Prestigacomo Deposition,) Defendant Prestigacomo states he applied his brakes as soon as he observed the Defendant Desimone vehicle jerk to a sudden stop and slowed his vehicle to about 10 miles-per-hour but was unable to stop in time to avoid contact with the rear bumper of the Defendant Desimone vehicle and that the force of that impact was very light.
Defendant Prestigacomo contends the Defendant Desimone vehicle rear-ended the vehicle in front of it, Plaintiffs vehicle, before his vehicle made contact with the Defendant Desimone vehicle, that the rear-end impact between the Defendant Desimone and Plaintiff vehicles occurred first, and the rear-end impact between the Defendant Desimone vehicle and his vehicle occurred second. Defendant Prestigacomo testified that "I witnessed the car in front of me make contact with the car in front of it, before I hit the car in front of me. I saw the bump, which caused me to slam the brakes and try to avoid it" (Defendant Prestigacomo Deposition, Plaintiff Ex. H at 42-43). Defendant Prestigacomo also testified that as a result of the collision his vehicle struck the vehicle in front of him, specifically, his front left bumper came into contact with the right rear bumper of the vehicle in front of him.
Here, in opposition, Defendants Prestigacomo and Desimone have raised non-negligent explanations for the rear-end collisions sufficient to rebut the inference of negligence and create a triable issue of fact in this matter. Accordingly, Plaintiffs request for an Order granting Summary Judgment in favor of Plaintiff on the issue of liability is Denied.
Accordingly, it is hereby
ORDERED, that this application by Plaintiff for an Order granting Summary Judgment in favor of Plaintiff on the issue of liability is DENIED; and it is further
ORDERED, that all Parties" Counsel and if no counsel then the Parties, are directed to appear before the Court in IAS Part 29, located at the Alan D. Oshrin Courthouse, One Court Street, Riverhead, New York 11901, on Tuesday, OCTOBER 29, 2019, at 9:30 A.M., for a conference; and it is further
ORDERED, that non-appearance will not be countenanced by the Court and may subject the non-appearing Party to one or more of the sanctions pursuant to 22 NYCRR §§ 202.27 and 130-2; and it is further
ORDERED, that at the call of the calendar, if any Party does not appear or proceed or announce their readiness to proceed, the Court shall consider an Order pursuant to 22 NYCRR § 202.27 as follows: (a) if the Plaintiff appears but the Defendant does not, the Court shall consider granting judgment by default and order an inquest; (b) if the defendant appears but the Plaintiff does not, the Court shall consider a dismissal of the action and order a severance of counterclaims; and (c) if no Party appears, the Court shall make such order as appears just; and it is further
ORDERED, that the Parties and their Counsel, if any, comply with Part 29 Court Rules, https://www.nvcourts.gov/courts/10jd/suffolk/SC_Part_Rules/Kevins.pdf; and it is further
ORDERED, that Movant(s) is/are directed to immediately serve a certified copy of this Order, pursuant to CPLR §§8019(c) and 2105, upon the Suffolk County Clerk; and it is further
ORDERED, that upon Entry of this Order by the Suffolk County Clerk, Movant(s) is/are directed to serve, forthwith, a copy of this Order with Notice of Entry upon all parties and to promptly file the Affidavit(s) of Service with the Clerk of the Court.
The Court has considered the remaining issues and finds them unavailing.