Opinion
Index No. 611145/2019 Mot. Seq. No. 001 -MG
10-21-2020
MELODY ZAMBRISKI, Plaintiff, v. BRENTWOOD DOOR CO. INC. and MERTON AMUSO Defendants.
Unpublished Opinion
MOTION DATE 11/26/2019
ADJ. DATE 7/21/2020
PRESENT: HON. LINDA KEVINS Justice of the Supreme Court
SHORT FORM ORDER
LINDA KEVINS, JSC
Upon the following papers e-filed and read on this motion for summary judgment: Notice of Motion and supporting papers by plaintiff, dated October 29. 2020; Answering Affidavits and supporting papers by defendant, dated March 6, 2020., Replying Affidavits and supporting papers by plaintiff, dated March 12. 2020; Other___; (and after hearing counsel in support and oppose-d-to the motion) it is, ORDERED that plaintiffs motion for an order pursuant to CPLR 3212 (e) granting partial summary judgment in her favor on the issue of liability is granted; and it is further
ORDERED that counsel for the parties, and if a party has no counsel, then the party, 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 December 15, 2020 at 9:30 a.m., for a Conference, or if the court is still operating remotely due to the COVID-19 health crisis, such appearance shall be held remotely on the same date by counsel Counsel and any parties who are not represented by counsel shall, with a copy to all parties, contact the court by email at Sufkevins@nycourts.gov at least one week prior to the date of the scheduled conference to obtain the time and manner of such conference; and it is further
ORDERED that if this Order has not already been entered, plaintiff is directed to promptly serve a certified copy of this Order, pursuant to CPLR §§8019(c) and 2105, upon the Suffolk County Clerk who is directed to hereby enter such order; and it is further
ORDERED that upon Entry of this Order, plaintiff is directed to promptly serve a copy of this Order with Notice of Entry upon all parties and to promptly file the affidavits of service with the Clerk of the Court.
This is an action to recover damages for personal injuries allegedly sustained by plaintiff as a result of a motor vehicle accident that occurred on April 2, 2019 on Sunrise Highway near its intersection with Heckshire Spur in the Town of klip. The accident allegedly happened when a vehicle owned by defendant Brentwood Door Company, Inc. and driven by defendant Merton Amuso collided with the rear of plaintiffs vehicle pushing it into the rear of a vehicle driven by nonparty David Lockamy.
Plaintiff now moves for partial summary judgment on the issue of liability, arguing that defendant negligently operated his motor vehicle and was the sole proximate cause of the accident. In support of the motion, plaintiff has submitted copies of the pleadings, a verified bill of particulars, a certified police accident report and her own affidavit.
In her affidavit, plaintiff states that on the date of the accident at approximately 4:00 p.m., she was traveling eastbound on Sunrise Highway/State Road 27 and brought her vehicle to a gradual stop due to traffic conditions. She states that her vehicle was completely stopped for three seconds behind a vehicle that was also stopped in traffic. Plaintiff states that suddenly, without warning, her vehicle was struck in the rear by a vehicle driven by defendant Merton Amuso causing the front of her vehicle to be pushed into the rear of a nonparty's vehicle.
The certified police accident report contains a statement by defendant Amuso, driver of vehicle number three which states: "he was driving left lane [sic] and could not stop in time striking Veh2 and pushing her into Vehicle,"
It is well settled that a party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, offering sufficient evidence to demonstrate the absence of any material issues of fact (see Alvarez v Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923 [1986]; Zuckerman v City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595 [1980]). Once such a showing has been made, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action (Alvarez v Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923; Zuckerman v City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595).
When the driver of a vehicle approaches another vehicle from the rear, he or she is bound to maintain a reasonably safe rate of speed and control over his or her vehicle, and to exercise reasonable care to avoid colliding with the other vehicle (Tumminello v City of New York, 148 A.D.3d 1084, 49 N.Y.S.3d 739 [2d Dept 2017]; Brothers v Bartling, 130 A.D.3d 554, 13 N.Y.S.3d 202 [2d Dept 2015]; Gutierrez v Trillium USA, LLC, 111 A.D.3d 669, 974 N.Y.S.2d 563 [2d Dept 2013]; Macauley v ELRAC, Inc, 6 A.D.3d 584, 585, 775 N.Y.S.2d 78 [2d Dept 2003]). A rear-end collision with a stopped vehicle creates a prima facie case of negligence with respect to the operator of the rear vehicle and imposes a duty on that operator to rebut the inference of negligence by providing a nonnegligent explanation for the collision (Tutrani v County of Suffolk, 10 N.Y.3d 906, 861 N.Y.S.2d 610 [2008]; Edgerton v City of New York, 160 A.D.3d 809, 74 N.Y.S.3d 617 [2d Dept 2018]; Nowak v Benites, 152 A.D.3d 613, 60 N.Y.S.3d 48 [2d Dept 2017]; Le Grand v Silberstein, 123 A.D.3d 773, 999 N.Y.S.2d 96 [2d Dept 2014]).
In a chain-collision accident involving rear end collisions, the driver of the rear-most vehicle "bears a presumption of responsibility" (Gustke v Nickerson, 159 A.D.3d 1573, 72 N.Y.S.3d 733 [4th Dept 2018], quoting Ferguson v Honda Lease Trust, 34 A.D.3d 356, 357, 826 N.Y.S.2d 10 [1st Dept 2006]). Furthermore, the operator of the middle vehicle that is propelled into the lead vehicle will not bear responsibility for the accident if the vehicle was properly stopped (Morales v Amar, 145 A.D.3d 1000, 44 N.Y.S.3d 184 [2d Dept 2016]; Niosiv Jones, 133 A.D.3d 578, 19 N.Y.S.3d 550 [2d Dept 2015]; Raimondo v Plunkitt, 102 A.D.3d 851, 958 N.Y.S.2d 460 [2d Dept 2013]).
Here, plaintiffs submissions, including her affidavit and defendant's admission contained in the certified police accident report (Liu v Lowe, 173 A.D.3d 946, 102 N.Y.S.3d 713 [2d Dept 2019]; Scott v Kass, 48 A.D.3d 785, 851 N.Y.S.2d 649 [2d Dept 2008]), are sufficient to establish her prima facie case of entitlement to summary judgment in her favor on the issue of negligence (Tsyganash v Auto Mall Fleet Mgt, Inc, 163 A.D.3d 1033, 83 N.Y.S.3d 74 [2d Dept 2018]; Singh v Avis Rent A Car Sys., Inc., 119 A.D.3d 768, 989N.Y.S.2d363 [2d Dept 2014]; Markesinis v Jaquez, 106 A.D.3d 961, 965 N.Y.S.2d 363 [2d Dept 2013]). Therefore, the burden shifts to defendants to proffer evidence in admissible form raising a triable issue of fact (CPLR 3212 [b]; Zuckerman v City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595).
Defendants oppose the motion on the grounds that it is premature as they have not conducted discovery. However, defendants fail to demonstrate that additional discovery may lead to relevant evidence or that facts essential to oppose the motion are exclusively within the knowledge and control of plaintiff (see CPLR 3212 [f]; Skura v Wojtlowski, 165 A.D.3d 1196, 87 N.Y.S.3dl00 [2d Dept 2018]; Richards v Burch, 132A.D.3d752, 18 N.Y.S.3d 87 [2d Dept 2015]; Suero-Sosa v Cardona, 112 A.D.3d 706, 977 N.Y.S.2d 61 [2d Dept 2013]). 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 motion (Gasis v City of New York, 35 A.D.3d 533, 534-535, 828 N.Y.S.2d 407, 409 [2d Dept 2006]; see also Dyer Trust 2012-1 v Global World Realty, Inc., 140 A.D.3d 827, 33 N.Y.S.3d 14 [2d Dept 2016]; Savage v Quinn, 91 A.D.3d 748, 937 N.Y.S.2d 265 [2d Dept 2012]). To defeat a motion for summary judgment, a party opposing such motion must lay bare his proof, in evidentiary form. Rather than submitting an affidavit by defendant Merton Amuso, counsel merely submits his own affirmation. It is well settled that an affirmation of an attorney who lacks personal knowledge of the facts has no probative value (see Cullin v Spiess, 122 A.D.3d 792, 997 N.Y.S.2d 460 [2d Dept 2014]). Counsel's argument that plaintiff failed to establish her prima facie case on the ground that she did not demonstrate she was free from fault is without merit, as a plaintiff in a negligence action is no longer required to show freedom from comparative fault to establish her prima facie entitlement to judgment as a matter of law on the issue of liability (see Rodriguez v City of New York, 31 N.Y.3d 312, 76 N.Y.S.3d 898 [2016]; Yassin v Blackman,___A.D.3d___, 2020 NY Slip Op 05090 ).
Having failed to submit competent evidence sufficient to raise a triable issue of fact as to whether defendant has a nonnegligent explanation for the accident, plaintiffs motion for partial summary judgment on the issue of liability is granted.
Anything not specifically granted herein is hereby denied. This constitutes the decision and Order of the Court.