Zhinin-Lema v. BMW of N. Am.

Full title: NUBE DEL ROCIO ZHININ-LEMA and MANUEL J. ZHAGNAY-LEMA, Plaintiffs, v. BMW…

Court: Supreme Court, Queens County

Date published: May 12, 2022

2022 N.Y. Slip Op. 34622 (N.Y. Sup. Ct. 2022)

Opinion

Index No. 711585/2019 Motion Seq. No. 001

05-12-2022

NUBE DEL ROCIO ZHININ-LEMA and MANUEL J. ZHAGNAY-LEMA, Plaintiffs, v. BMW OF NORTH AMERICA, LLC., RAVENN RODRIGUEZ and WILSON GUAMAN, as Administrator for the Estate of WILFREDO R. GUAMAN, Defendants.

DONNA-MARIE E. GOLIA, JSC

Unpublished Opinion

Motion Date: 5/5/2020 ¹

1 After the motion was submitted on May 5, 2020, this action was stayed due to the death of co-defendant Wilfredo R. Guaman ("Guaman"). Pursuant to the so-ordered stipulation filed on April 14, 2022, which substituted Wilson Guaman as the Administrator of the Estate of Wilfredo R. Guaman in place and stead of said defendant, the stay of this action was lifted.

DECISION & ORDER

DONNA-MARIE E. GOLIA, JSC

This motion was reassigned to chambers on or about April 1, 2021.

The following electronically filed documents numbered EF30 to EF37 and EF48 to EF53 read on this motion by plaintiff for summary judgment on the issue of liability and to dismiss defendants' eighth affirmative defense:

Papers Numbered

Notice of Motion, Affirmation, Exhibits, and Affidavit of Service................... EF30 - EF37

Affirmation in Opposition, Memorandum of Law, Exhibits........................... EF48 - EF52

Affirmation in Reply............................................................................ EF53

Plaintiff Nube Del Rocio Zhnin-Lema ("plaintiff') moves, pursuant to New York Civil Practice Law and Rules ("CPLR") 3212, for summary judgment on liability against defendants BMW ("BMW") of North America, LLC and Ravenn Rodriguez ("Rodriguez" collectively "defendants") and to dismiss defendants' eighth affirmative defense regarding plaintiff's alleged contributory negligence. Plaintiff also seeks an award of costs, disbursements and reasonable attorney's fees in connection with the filing of this motion. Defendants oppose the motion.² Upon the papers submitted, plaintiffs motion is granted in part and denied in part, as discussed more fully below.

2 Co-defendant Guaman does not submit any papers in response to the motion.

This action arises out of a motor vehicle accident that occurred on November 10, 2018 on 126^th Street at or near its intersection with 38^th Avenue in Queens, New York. Plaintiff alleges that she was a passenger in the front seat of a motor vehicle operated by Guaman (the "host vehicle") when it was hit in the rear by a vehicle operated by Rodriguez and owned by BMW.

In her motion, plaintiff avers that she was a front-seated passenger in the host vehicle which was fully stopped on 126^th Street at or near the intersection of 38^th Avenue when it was struck in the rear by defendants' vehicle. Plaintiff asserts that defendants cannot provide a non-negligent explanation for the alleged collision. Plaintiff also contends that she did not cause or contribute to the alleged accident, but rather, defendants were solely responsible for the happening of the alleged accident.

In opposition, defendants argue that plaintiff's pre-discovery motion for summary judgment as to liability and to strike their eighth affirmative defense should be denied as premature as it is only through discovery that they may have the means to show the existence of a material issue of fact. Defendants also argue that there is a triable issue of fact as to whether co-defendant Guaman proximately caused plaintiff's alleged injuries. Specifically, defendants assert that on November 10, 2018, Rodriguez was driving southbound on 126^th Street and as he switched from the left lane to the right lane, the vehicle in front of him switched quickly from the right lane to the left lane and once that vehicle changed lanes, he saw a double-parked vehicle in the right lane. Defendants contend that once Rodriguez was able to see the double-parked vehicle, he immediately stepped on the brakes and attempted to stop. In that regard, defendants aver that had the host vehicle not been double-parked in the traveling lane, plaintiff would not have been injured.

In reply, plaintiff argues that defendants' opposition is void of any non-negligent explanation for the alleged rear-end collision.

Summary judgment pursuant to CPLR 3212 provides a mechanism for the prompt disposition, prior to trial, of civil actions which can be decided as a matter of law (see generally, Brill v City of New York, 2 N.Y.3d 648, 650 [2004]). On a motion for summary judgment, the moving party must make out a prima facie case by submitting evidence in admissible form which establishes its entitlement to judgment as a matter of law (see, Marshall v Arias, 12 A.D.3d 423, 424 [2d Dept 2004]). Upon such a showing, the burden shifts to the non-moving party to present admissible evidence which demonstrates the necessity of a trial as to an issue of fact (see, Zolin v Roslyn Synagogue, 154 A.D.2d 369, 369 [2d Dept 1989]). The non-moving party must be afforded every favorable inference that can be drawn from the evidentiary facts established (see, McArdle v M &M Farms, 90 A.D.2d 538 [2d Dept 1982]). However, conclusory, unsupported allegations or general denials are insufficient to defeat a motion for summary judgment (see, William Iselin &Co., Inc, v Landau, 71 N.Y.2d 420, 427 [1988]).

As a preliminary matter, plaintiff's pre-discovery motion for summary judgment is not premature (see, Rainford v Han, 18 A.D.3d 638,639-40 [2d Dept 2005]). Indeed, the Appellate Division, Second Department has held that, "[t]he purported need to conduct discovery [does] not warrant denial" of a motion for summary judgment where "[t]he opponents of the motion had personal knowledge of the relevant facts" (see id.; Emil Norsic &Son, Inc, v L.P. Transp., Inc., 30 A.D.3d 368, 369 [2d Dept 2006]; Rainford, 18 A.D.3d at 639-40, supra; Niyazov v Bradford, 13 A.D.3d 501,502 [2d Dept 2004]; Morissaint v Raemar Corp., 271 A.D.2d 586, 587 [2d Dept 2000]). Here, the relevant facts underlying the alleged accident would be within defendants' personal knowledge as they were the owner and driver of the vehicle that allegedly struck the host vehicle in the rear. Accordingly, defendants' "purported need to conduct discovery does not warrant denial of the motion" (see, Emil Norsic &Son, Inc. 30 A.D.3d at 369, supra; Rainford, 18 A.D.3d at 639-40, supra).

Turning to the substance of plaintiff's motion, plaintiff contends that defendants violated Vehicle and Traffic Law § 1129(a). Under New York Vehicle and Traffic Law § 1129(a), "[t]he driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon and the condition of the highway." Therefore, "[a] driver of a vehicle approaching another vehicle from the rear is required to maintain a reasonably safe distance and rate of speed under the prevailing conditions to avoid colliding with the other vehicle" (Nsiah-Ababio v Hunter, 78 A.D.3d 672, 672 [2d Dept 2010]; NY Veh. &Traf. Law § 1129). In that regard, "a rear-end collision establishes a prima facie case of negligence on the part of the operator of the rear vehicle, thereby requiring that operator to rebut the inference of negligence by providing a nonnegligent explanation for the collision" (Ortiz v Hub Truck Rental Corp., 82 A.D.3d 725, 726 [2d Dept 2011]).

Here, plaintiff has met her burden by submitting evidence sufficient to establish her prima facie entitlement to summary judgment on the issue of liability (see, Emil Norsic &Son, Inc., 30 A.D.3d at 368, supra). Notably, plaintiff has submitted an affidavit in which she attests that she was a front-seat passenger in a double-parked vehicle operated by co-defendant Guaman, which was fully stopped at or around 126^th Street at or near the intersection of 38^th Avenue in Queens, New York for approximately three minutes when suddenly and without warning, the host vehicle was struck in the rear by defendants' vehicle (see PI. Exh. B; Clements v Giatas, 178 A.D.3d 894, 895 [2d Dept 2019]; Ortiz, 82 A.D.3d at 727, supra). Plaintiff also states that she was not responsible for the happening of the alleged collision (see, id.).

In response to plaintiff's prima facie showing of negligence, there are triable issues of fact sufficient to preclude summary judgment on the issue of liability (see, Clements, 178 A.D.3d at 895, supra). Indeed, defendants submit the affidavit of Rodriguez, the driver of the vehicle, who attests that on November 10, 2018, he was driving southbound on 126^th Street in Queens, NY and as he changed from the left to the right lane, there was a vehicle in front of him who "switched quickly from the right to the left lane" (see, Def. Aff. p. 1). Defendant Rodriguez further avers that when "the vehicle in front of [him] changed lanes[,] [he] saw that there were double parked vehicle in the right lane" and "[o]nce [he] saw the double packed vehicles!,] [he] immediately stepped on the brakes and attempted to bring the vehicle into to a complete stop" (id at 2). As defendant Rodriguez's affidavit suggests that the alleged accident occurred due to the sudden lane change of a nonparty vehicle, "which set into motion the events leading to the hit-in-the-rear accident," defendants have "rebutted the presumption of their negligence and raised triable issues" as to the double-parked host vehicle's comparative negligence (see, Brando v Colon, 2019 WL 3413777, at *1 [NY Sup Ct Bronx County Apr 29, 2019]; Nadella v City of New York, 161 A.D.3d 412, 412 [1st Dept 2018]; Pickett v Verizon New York Inc., 129 A.D.3d 641 [1st Dept 2015]; Wilson v Rojas, 63 A.D.3d 1048, 1049 [2d Dept 2009]; White v Diaz, 49 A.D.3d 134, 140 [1st Dept 2008]; Def. Exh. A). Accordingly, the branch of plaintiff's motion seeking summary judgment on the issue of liability is denied.

However, as plaintiff Nube Del Rocio Zhnin-Lema was a passenger in the host vehicle at the time of the alleged accident and defendants failed to raise a triable issue of fact as to whether she caused or contributed to the happening of the alleged accident, the branch of plaintiff's motion to strike defendants' eighth affirmative defense regarding her contributory negligence is granted (see, Rodriquez v City of New York, 31 N.Y.3d 312, 324 [2018]; Comas-Bourne v City of New York, 146 A.D.3d 855, 856 [2d Dept 2017]; Medina v Rodriguez, 92 A.D.3d 850, 851 [2d Dept 2012]).

In sum, the branch of plaintiff's motion for summary judgment on the issue of liability is denied. The Court further denies the branch of plaintiff's motion for an award of costs, disbursements and reasonable attorney's fees in connection with the filing of this motion. However, the branch of plaintiff's motion to strike defendants' eighth affirmative defense regarding her alleged contributory negligence is granted.

This constitutes the Decision and Order of the Court.