Fleurisma v. Montenes

1

2019 NY Slip Op 34629(U)

ELIZABETH FLEURISMA, Plaintiff, v. TRACY MONTENES, and CHESTNUT RIDGE TRANSPORTATION, INC., Defendants.

Index No. 612787/2019, Mot. Seq. No. 001 MG

Supreme Court, Suffolk County

December 10, 2019

Unpublished Opinion

ORIG. RETURN DATE: September 19, 2019

FINAL RETURN DATE: October 18, 2019

PLTF'S ATTORNEY: GRUENBERG KELLY DELLA

DEFT'S ATTORNEY: LEWIS JOHS AVALLONE AVILES, LLP

PRESENT: Hon. Paul J. Baisley. Jr.. J.S.C.

Paul J. Baisley Jr., Judge

Upon the following papers read on this e-filed motion for summary judgment: Notice of Motion/ Order to Show Cause and supporting papers by plaintiff, dated August 29 2019; Notice of Cross Motion and supporting papers ___ Answering Affidavits and supporting papers by defendants, dated October 3. 2019; Replying Affidavits and supporting by plaintiff, dated October 9. 2019; Other ___; (and after hearing counsel in support and opposed to the motion) it is, ORDERED that plaintiffs motion for summary judgment in her favor on the issue of defendants' negligence and for a determination as to her comparative fault is granted; and it is further

ORDERED that counsel for the parties shall appear for a preliminary conference at 10:00 a.m. on January 7, 2020 at the DCM-J Part of the Supreme Court, 1 Court Street, Riverhead, New York.

This action was commenced by plaintiff Elizabeth Fleurisma to recover damages for injuries she allegedly sustained on April 1, 2019, when her motor vehicle was struck in the rear by a vehicle operated by defendant Tracy Montenes and owned by Chestnut Ridge Transportation, Inc. The accident allegedly occurred on Carman Road, at its intersection with Rainbow Commons Court, in Dix Hills, New York.

Plaintiff now moves for summary judgment on the issue of defendants' negligence and for a determination as to her comparative fault. In support of her motion, plaintiff submits, among other things, her affidavit, in which she avers that her vehicle was completely stopped at the subject intersection when it was struck in the rear by defendant driver's vehicle. She further avers that her vehicle was stopped at the subject intersection because she was waiting for oncoming traffic to clear before making a left turn onto Rainbow Commons Court.

In opposition to plaintiffs motion for summary judgment, defendants contend that triable issues of fact remain as to whether plaintiff caused or contributed to the accident by bringing her vehicle to a sudden stop. Defendants also contend that plaintiffs motion is premature because she has not been deposed. In support of their opposition, defendants submit the affidavit of defendant driver.

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law by tendering evidence in admissible form sufficient to eliminate any material issues of fact from the case (see Alvarez v Prospect Hasp., 68 N.Y.2d 320, 508 N.Y.S.2d 923 [1986]; Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 87 N.Y.S.2d 316 [1985]). The movant has the initial burden of proving entitlement to summary judgment (Winegrad v New York Univ. Med. Or., supra). Once the movant demonstrates a prima facie entitlement to judgment as a matter of law, the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action (see Vega v Restani Constr. Corp., 18 N.Y.3d 499, 942 N.Y.S.2d 13 [2012]; Alvarez v Prospect Hosp., supra; Zuckerman v City of New York, 49 N.Y.2d 557; 427 N.Y.S.2d 595 [1980]; see also CPLR 3212 [b]). The failure to make such showing requires a denial of the motion, regardless of the sufficiency of the opposing papers (see Winegrad v New York Univ. Med. Ctr., supra). In deciding the motion, the court must view all evidence in the light most favorable to the nonmoving party (see Matter of New York City Asbestos Litig., 33 N.Y.3d 20, 99 N.Y.S.3d 734 [2019]; Vega v Restani Constr. Corp., 18 N.Y.3d 499, 942 N.Y.S.2d 13 [2012]).

A driver of an automobile approaching another automobile from the rear must maintain a reasonably safe distance and rate of speed and control under the prevailing condition to avoid colliding with the other vehicle (see Ordonez v Lee, ___ A.D.3d ___, 2019 NY Slip Op 08199 [2d Dept 2019]; Gelo v Meehan, ___ A.D.3d ___, 2019 NY Slip Op 08175 [2d Dept 2019]; Mihalatos v Barnett, 175 A.D.3d 492, 106 N.Y.S.3d 165 [2d Dept 2019]). 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, and thereby requires that operator to rebut the inference of negligence by providing a non-negligent explanation for the collision (see Liu v Lowe, 173 A.D.3d 946, 102 N.Y.S.3d 713 [2d Dept 2019]; Morgan v Flippen, 173 A.D.3d 735, 102 N.Y.S.3d 108 [2d Dept 2019]; Bloechle v Heritage Catering, Ltd., 172 A.D.3d 1294, 101 N.Y.S.3d 424 [2d Dept 2019]). A non-negligent explanation may include evidence of a mechanical failure, a sudden, unexplained stop of the leading vehicle, an unavoidable skidding on wet pavement, or any other reasonable cause (see Grant v Carrasco, 165 A.D.3d 631, 84 N.Y.S.3d 235 [2d Dept 2018]; Tumminello v City of New York, 148 A.D.3d 1084, 49 N.Y.S.3d 739 [2d Dept 2017]; Orcel v Haber, 140 A.D.3d 937, 33 N.Y.S.3d 429 [2d Dept 2016]; Binkowitz v Kolb, 135 A.D.3d 884, 24 N.Y.S.3d 186 [2d Dept 2016]). However, a driver who follows another vehicle must anticipate that the leading vehicle may stop even suddenly, based on prevailing traffic conditions (see Catanzaro v Edery, 172 A.D.3d 995, 101 N.Y.S.3d 170 [2d Dept 2019]; Buchanan v Keller, 169 A.D.3d 989, 991 N.Y.S.3d 252 [2d Dept 2019]; Annan v New York State Off of Mental Health, 165 A.D.3d 1020, 87 N.Y.S.3d 70 [2d Dept 2018]).

Although a plaintiff is no longer required to show freedom from comparative fault to establish his or her prima facie entitlement to judgment as a matter of law on the issue of negligence (Rodriguez v City of New York 31 N.Y.3d 312, 76 N.Y.S.3d 898 [2018]; see Liu v Lowe, 173 A.D.3d 946, 102 N.Y.S.3d 713 [2d Dept 2019]' Heard v Schade, 172 A.D.3d 1335, 99 N.Y.S.3d 666 [2d Dept 2019], the issue of a plaintiffs comparative negligence may, however, be decided in the context of a summary judgment motion if the plaintiff moves for summary judgment dismissing a defendant's affirmative defense of comparative negligence (see Higashi vM&R Scarsdale Rest., LLC, ___A.D.3d ___, 2019 NY Slip Op 07240 [2d Dept 2019]; Wray v Gaklla, 172 A.D.3d 1446, 101 N.Y.S.3d401 [2d Dept 2019]; Poon v Nisanov, 162 A.D.3d 804, 79 N.Y.S.3d 227 [2d Dept 2018]). Here, the Court deems plaintiffs application for a declaration that she is free from comparative negligence, in effect, as a request for summary judgment dismissing defendants' affirmative defense of comparative negligence. As a motor vehicle accident can have more than one proximate cause (see Richardson v Cablevision Sys. Corp., 173 A.D.3d 1083, 104 N.Y.S.3d 655 [2d Dept 2019]; Enriquez v Joseph, 169 A.D.3d 1008, 94 N.Y.S.3d 599 [2d Dept 2019]; Matias v Bella, 165 A.D.3d 642, 84 N.Y.S.3d 551 [2d Dept 2018]), the issue of comparative fault is generally a question for the fact finder to determine (see Richardson v Cablevision Sys. Corp., supra; Matias v Bella, supra; Vuksanaj v Abbott, 159 A.D.3d 1031, 73 N.Y.S.3d 224 [2d Dept 2018]).

Plaintiff made a prima facie case of entitlement to judgment as a matter of law on the issue of defendant driver's negligence (see Morgan v Flippen, supra; Buchanan v Keller, supra; Nikolic v City-Wide Sewer & Drain Serv. Corp., 150 A.D.3d 754, 53 N.Y.S.3d 684 [2d Dept 2017]). As previously indicated, plaintiff alleges that her vehicle was completely stopped at the subject intersection when it was struck in the rear by defendant driver's vehicle. As to defendant Chestnut Ridge Transportation, Inc., Vehicle and Traffic Law § 388 provides that an owner of a motor vehicle is vicariously liable for the negligence of those whom the owner allows to drive his or her vehicle (see Country-Wide Ins. Co. v National R.R. Passenger Corp., 6 N.Y.3d 172, 811 N.Y.S.2d 302 [2006]; Jung v Glover, 169 A.D.3d 782, 93 N.Y.S.3d 390 [2d Dept 2019]). In defendants' verified answer, they admit that defendant Chestnut Ridge Transportation, Inc., owned defendant driver's vehicle, and that she operated the vehicle with its consent. Plaintiffs submissions were also sufficient to establish, prima facie, that she did not contribute to the happening of the accident, and that defendant driver's negligence was the sole proximate cause of the accident (see Martinez v Allen, 163 A.D.3d 951, 82 N.Y.S.3d 130 [2d Dept 2018]; Nikolic v City-Wide Sewer & Drain Serv. Corp., supra; Ramos v Baig, 145 A.D.3d 696, 43 N.Y.S.3d 110 [2d Dept 2016]; Poon v Nisanov, supra; Waide v ARI Fleet, LT, 143 A.D.3d 975, 39 N.Y.S.3d 512 [2d Dept 2016]).

In opposition, defendants failed to raise a triable issue of fact (see Auguste v Jeter, 167 A.D.3d 560, 88 N.Y.S.3d 509 [2d Dept 2018]; Nikolic v City-Wide Sewer & Drain Serv. Corp., supra; ...