Molina v Ianniello
Annotate this CaseDecided on September 13, 2005
Supreme Court, Rockland County
Cesar Molina and MARIA CONSUELO-MOLINA, Plaintiffs,
against
Peter L. Ianniello, NICHOLAS F. ROSA, GENERAL MOTORS ACCEPTANCE CORPORATION and .A.U.L. TRUST, Defendants.
8175/04
Richard P. Neimark & Associates, LLP
Attys. For Pltfs.
37 Congers Road
New City, New York 10956 Law Office of Bryan M. Kulak
Attys. For Defts.
New Windsor Business Park
484 Temple Hill Road
New Windsor, New York 12553
Mary H. Smith, J.
Upon the foregoing papers, it is Ordered that this motion is disposed of as follows:
This action is for personal injuries allegedly sustained by plaintiff as a result of a two vehicle collision that occurred on June 8, 2004. Although examinations before trial have not yet taken place, plaintiffs are moving at bar for partial summary judgment on the issue of liability only. Said motion is supported by an affidavit from plaintiff Cesar Molina, who avers that he was driving [*2]his vehicle on June 8, 2004, and had brought it to a complete stop on Route 303 due to a red traffic light and so as to permit another vehicle to merge onto Route 303. Approximately five seconds after stopping his vehicle, plaintiff states he was rear-ended by defendant's vehicle. Based upon these circumstances, plaintiffs submit they are entitled to judgment on the liability as a matter of law.
Defendant opposes the motion, submitting his own affidavit. According to defendant, the collision occurred in a different manner. He claims that after both his and plaintiff's vehicles had been stopped at a red light, the light turned green and, after starting to move forward, plaintiff "suddenly" "came to a short stop," which caused defendant's vehicle to bump the rear of plaintiff's vehicle.
It is well settled that the operator of a motor vehicle is under a duty to operate his motor vehicle with reasonable care, to be aware of the actual and potential hazards existing from road conditions, and to see that which, under the facts and circumstances, he should have seen by the proper use of his senses. See PJI 277.1; Vehicle and Traffic Law Section 1129(a); Marsella v. Sound Distributing Corp., 248 AD2d 683 (2nd Dept. 1998); McCarthy v. Miller, 139 AD2d. 500 (2nd Dept. 1988). When a driver approaches another vehicle from the rear, he is bound to maintain a reasonably safe rate of speed and use reasonable care to avoid colliding with the other vehicle. See Crociata v. Vasquez, 168 AD2d 410 (2nd Dept. 1990); Young v. City of New York, supra. Thus, a rear-end collision with a stopped or stopping vehicle creates an inference of negligence and a prima facie case of liability on the part of the operator of the offending vehicle and imposes upon such operator a duty of explanation. See Ruzycki v. Baker, 301 AD2d 48 (2nd Dept. 2003); Agramonte v. The City of New York, 288 AD2d 75 (1st Dept. 2001); McKeough v. Rogak, 288 AD2d 196 (2nd Dept. 2001); Leal v. Wolff, 224 AD2d 392, 393 (2nd Dept. 1996); Asante v. Williams, 227 AD2d 123 (1st Dept. 1996); Mead v. Marino, 205 AD2d 669 (2nd Dept. 1993); Pincus v. Cohen, 198 AD2d 405 (2nd Dept. 1993); Young v. City of New York, 113 AD2d 833, 833-834 (2nd Dept. 1985). The failure to offer a non-negligent explanation for the collision constitutes negligence as a matter of law. See Leal v. Wolff, 224 AD2d 392 (2nd Dept. 1996); Abramowicz v. Roberto, 220 AD2d 374, 375 (2nd Dept. 1995); Aromando v. City of New York, 220 AD2d 617 (2nd Dept. 1994); Silberman v. Surrey Cadillac Limousine Service, 109 AD2d 833 (2nd Dept. 1985).
However, not every rear-end collision is the exclusive fault of the rearmost driver; the frontmost driver also has the duty not to stop suddenly or slow down without proper signaling so as to avoid a collision and a triable issue of fat can successfully be raised in such circumstance. See Brodie v. Global Asset Recovery, Inc., 12 AD3d 390 (2nd Dept. 2004); Moran v. Singh, 10 AD3d 707 (2nd Dept. 2004); Gaeta v. Carter, 6 AD3d 576 (2nd Dept. [*3]2004); Drake v. Drakoulis, 304 AD2d 522 (2nd Dept. 2003); Pion v. Jang, 5 Misc 3d 129(A)(App. T. 2004).
After this Court's careful consideration of the record before it, the parties' respective arguments and application of the foregoing principles of law, plaintiff's motion for partial summary judgment on the issue of liability is denied, the Court finding that defendant successfully has raised an issue of fact as to plaintiff's negligence in the happening of this accident. Accepting for the purpose of this motion only defendant's disputed version of the circumstances surrounding the occurrence of this crash, i.e., that plaintiff, after beginning to move forward, suddenly stopped without warning or explanation, the Court is constrained to find that a triable issue of fact has been raised. See Heal v. Liszewski, 294 AD2d 911 (4th Dept. 2002). While this Court would agree that there appears to be a lack of consistency in appellate authority, particularly in the Second Department, with respect to whether a claim that a driver stopped suddenly, resulting in a rear end collision, is sufficient to constitute a non-negligent explanation for the happening of the accident, this Court suggests that perhaps the cases can be harmonized to the extent that a claim of sudden stopping in heavy or stop and go traffic, which claim is not presented at bar, does not constitute a non-negligent explanation for the happening of a rear end collision.
The parties shall appear, as previously scheduled, for a pre-trial conference on January 6, 2006. All discovery must be completed by said date and plaintiffs shall file their note of issue on or before said date. This date may not be adjourned without the Court's consent.
Dated: September 13, 2005
New City, New York ______________________________________
MARY H. SMITH
J.S.C.
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