Peralta v Espinal
2005 NY Slip Op 51360(U) [9 Misc 3d 1101(A)]
Decided on August 22, 2005
Civil Court, Bronx County
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.
Peralta v Espinal
Decided on August 22, 2005
Civil Court, Bronx County
Euridice Peralta and Francis O. Guerrero, Plaintiffs,
Alexander Espinal, ASTRO AMBULETTE CORP., JUAN M. ORTIZ and JULIO A. GUERRERO, Defendants.
Lizbeth González, J.
Defendants Juan M. Ortiz and Julio A. Guerrero seek summary judgment dismissing the plaintiffs' complaint pursuant to CPLR § 3212 on the ground that there exist no triable issues of fact.
Plaintiffs Euridice Peralta and Francis O. Guerrero claim that they sustained a serious injury as a result of the defendants' negligence on July 20, 1999 at the intersection of Boston Road and 174th Street. The plaintiffs were passengers in a white Lincoln taxi cab owned by defendant Julio Guerrero [FN1] and driven by defendant Juan Ortiz. Plaintiff Francis Guerrero, one of the two passengers, testified that the cab was struck while stopped for a school bus: Q. Where was your car impacted as a result of the accident?[*2]
A. In the back. Q. At the time of the accident, was your vehicle moving or stopped? A. It was stopped.Q. For how long a period of time had it been stopped before the impact occurred?
A. Like two minutes. Q. For what reason was it stopped, if you know?
A. It was a bus, a school bus in front stopped with a stop sign out.
Defendant Juan Ortiz, a cab driver, acknowledged at his examination before trial that he was the driver of the cab at the time of the accident, a vehicle owned by defendant Julio Guerrero. His two passengers sat in the back seat. Traffic on Boston Road was light and the road was dry. Ortiz testified that he felt a single strong impact to the rear of his vehicle at a time when his vehicle was fully stopped 15 feet behind the school bus: Q. When the accident occurred, was the Lincoln moving or stopped? A. Stopped.Q. For what reason, if any, was it stopped when the accident occurred?A. Because there was a school bus in front of me dropping off some students and I have to stop when the signalwhen the stop signals come out of the bus.Q. How long were you stopped behind the bus before an accident occurred that day?
A. At least a minute.
Ortiz told the police who arrived at the scene that "there was a school bus in front of me and I stopped and this guy came from the back and hit me." The police report annexed to the defendants' moving papers is consistent with his testimony.
A police report attached to the moving papers states that the mini-van that rear-ended the cab was owned by co-defendant Astro Ambulette Corp. and driven by co-defendant Alexander Espinal. Neither co-defendant appeared in opposition to this motion. Although the deposition transcript of plaintiff Euridice Peralta has allegedly not been forwarded to the defendants, the defendants allege that the testimony of both plaintiffs is consistent.
The plaintiffs, by way of opposition to the motion, fault defendant Juan Ortiz for failing to get out of the way after hearing the mini-van's screeching brakes behind him. They highlight his testimony as follows: Q. At any time before you felt this impact to the rear of the Lincoln, did you hear any horns blow?A. No.Q. Did you blow your horn at any point before the impact?A. No.Q. Did you hear any brakes or tires screech in that same period of time?A. Yes.Q. What amount of time passed from the time you first heard those brakes until the time the accident occurred?[*3]A. When I heard the screeching, I felt the impact.Q. Did you hear either of your passengers scream out or say anything right before that impact occurred?A. Yes.Q. Before the impact?A. No, after the impact.
The plaintiffs argue that the defendant operator had an affirmative obligation to avoid being rear-ended. Defendant Juan Ortiz testified that he was looking forward at the time of the accident: Q. At any time before the impact occurred, did you see the other car that was involved in this accident?
A. No. I was looking forward.
Drivers must maintain reasonable and prudent distances between their cars and cars in front of them, "having due regard for the speed of such vehicles and the traffic upon and the condition of the highway." (Vehicle and Traffic Law §1129.) A rear-end collision with a stopped vehicle establishes a prima facie case of negligence unless the driver of the rear vehicle can provide an adequate non-negligent explanation for striking the stopped car. (See Garcia v Bakemark Ingredients (East) Inc., 19 AD3d 224 [1st Dept 2005]; Johnson v Phillips, 261 AD2d 269 [1st Dept 1999].)
New York State imposes a duty upon all motorists to stop for a stopped school bus when a red visual signal is in operation. (Vehicle and Traffic Law §1174[a].) Failure to do so can result in a fine of not less than $250 nor more than $400, or imprisonment for not more than 30 days, or both. (Vehicle and Traffic Law § 1174[c].) The police report identifies Alexander Espinal as the driver of the mini-van that rear-ended the cab and Astro Ambulette Corp. as its owner. Significantly, neither co-defendant has appeared, submitted an answer, filed opposing papers or provided a non-negligent explanation for rear-ending the cab in question.
The proponent of a motion for summary judgment "must make a prima facie showing of
entitlement to judgment as a matter of law, tendering sufficient evidence to show the absence of any material issues of fact. Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers." (JMD Holding Corp v Congress Financial Corporation, 4 NY3d 373 .) The cases cited by plaintiffs in opposition to this motion are inapposite since they do not concern a rear-end collision with a stopped vehicle. The plaintiff's contention that defendant Ortiz was required to avoid the accident is without merit: His cab was fully stopped and hit from the rear. Defendant Ortiz was looking forward towards the stopped school bus. The school bus was dropping off students and a stop signal was displayed. Moving the cab to overtake or pass the school bus under these circumstances would have subjected him to a fine, imprisonment or both. (See Vehicle and Traffic Law § 1174[c].)
No triable issues of facts are in dispute. The deposition testimony of plaintiff Francis O. Guerrero and defendant Juan Ortiz is consistent. The police report is consistent with the unrebutted testimony of defendant Ortiz. New York State law does not require a driver to avoid a rear-end collision - to the extent that there exists such a possibility - by breaching the law and, in this case, passing a school bus that is discharging students.
The motion by defendants Juan M. Ortiz and Julio A. Guerrero for summary judgment on [*4]the issue of liability is granted. The complaint against them is accordingly dismissed.
This constitutes the decision and Order of this Court.
Dated: August 22, 2005
Hon. Lizbeth González
Footnote 1: Plaintiff Francis O. Guerrero testified at his examination before trial that he neither knows nor is related to defendant Julio A. Guerrero.