Butler v Qianli Mao

[*1] Butler v Qianli Mao 2006 NY Slip Op 50271(U) [11 Misc 3d 1058(A)] Decided on February 27, 2006 Supreme Court, Bronx County Renwick, J. 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 This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 27, 2006
Supreme Court, Bronx County

William Butler, Plaintiff,

against

Qianli Mao, Defendant.



Index No.: 20278/2004

Dianne T. Renwick, J.

Plaintiff William Butler commenced this action seeking to recover money damages for personal injuries sustained during an automobile accident. The accident involved a collision between vehicles operated by plaintiff Butler, defendant Qianli Mao, and a third person who is not a party to this action. Plaintiff Butler now moves for partial summary judgment on the issue of liability. A dispositive issue raised by this motion is whether the disputed fact that plaintiff's vehicle had rear ended a third vehicle, before plaintiff was rear ended by defendant Mao's vehicle, may serve as a non-negligent explanation that rebuts the inference of negligence created by defendant's rear end collision into plaintiff's car.

Discussion

It is well settled that the proponent of a motion for summary judgment must establish that "there is no defense to the cause of action or that the cause of action or defense has no merit," (C.P.L.R. §3212[b]), sufficiently to warrant the court as a matter of law to direct judgment in his or her favor. Bush v. St. Clare's Hospital, 82 NY2d 738, 739 (1993); Winegrad v. New York University Medical Center, 64 NY2d 851, 853 (1985). This standard requires that the proponent of the motion "tender[] sufficient evidence to eliminate any material issues of fact from the [*2]case," id., "by evidentiary proof in admissible form." Zuckerman v. New York, 49 NY2d 557, 562 (1980). Thus, the motion must be supported "by affidavit [from a person having knowledge of the facts], by a copy of the pleadings and by other available proof, such as depositions." C.P.L.R. §3212(b).

Where the proponent of the motion makes a prima facie showing of entitlement to summary judgment, the burden shifts to the party opposing the motion to demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action, or to tender an acceptable excuse for his or her failure to do so. Vermette v. Kenworth Truck Company, 68 NY2d 714, 717 (1986); Zuckerman v. New York, supra, 49 NY2d at 560, 562. Like the proponent of the motion, the party opposing the motion must set forth evidentiary proof in admissible form in support of his or her claim that material triable issues of fact exist. Id., at 562.

In this case, plaintiff William Butler met his burden based upon the deposition testimony of defendant Qianli Mao indicating that his car rear ended plaintiff's vehicle. Further, prior to the impact, defendant Qianli Mao had been driving his vehicle about two to three feet behind plaintiff's car when plaintiff's vehicle came to a full stop. When a rear-end collision occurs, the injured occupant of the front vehicle is entitled to summary judgment on liability, unless the driver of the following vehicle can provide a non-negligent explanation, in evidentiary form, for the collision. See Danza v. Longiere, 256 AD2d 434 (2nd Dept. 1998); Hurley v. Cavioto, 239 AD2d 559 (1st Dept. 1997); Niemiec v. Jones, 237 AD2d 267 (2nd Dept. 1997); Gambino v. City of New York, 205 AD2d 583 (1st Dept. 1994). If the operator of the moving vehicle cannot come forward with any evidence to rebut the inference of negligence, the party of the stationary car may be awarded judgment as a matter of law on the issue of liability. Danza, supra, Niemic, supra, Gambino, supra.

Counsel for defendant Qianli Mao, however, argues that a negligent explanation is indicated by defendant Qianli Mao's deposition testimony that plaintiff's vehicle had struck the rear of the vehicle in front of him, prior to defendant striking the rear of plaintiff's car. This is directly contradicted by plaintiff Butler's deposition testimony that his car had stopped prior to being rear ended by defendant's car and that it was such impact that caused his vehicle to propel forward and strike the rear of a third vehicle. Thus, the evidence presents a factual dispute as to whether plaintiff's vehicle had stopped, prior to being impacted, by defendant's inability to bring his vehicle to a safe stop.

This Court finds that such factual dispute cannot not raise a triable issue of [*3]fact, under the circumstances of this case, as to whether defendant Qianli Mao has a non-negligent explanation to rebut the inference of negligence created by defendant's rear end collision with plaintiff's vehicle. Indeed, even if the jury were to disregard plaintiff's version and fully credit defendant's version, it is still undisputed that plaintiff had stopped prior to the impact by defendant's vehicle. Accordingly, under either scenario defendant bares the burden of proving that the rear end collision with plaintiff's car was not due to his negligence. The fact that plaintiff's vehicle had stopped when it collided with another car is not enough to rebut a presumption of negligence, unless defendant Qianli Mao can show that such conduct, rather than his own failure to maintain a safe distance, was a proximate cause of the accident. See Waters v. City of New York, 278 AD2d 408 (2nd Dept. 2000); Johnson v. Phillips, 261 AD2d 269 (1st Dept. 1999).

Defendant Qianli Mao, however, cannot meet such burden in this case. Indeed, defendant testified during his deposition that prior to the rear end collision with plaintiff's vehicle, his vehicle had been traveling merely two to three feet behind plaintiff's vehicle. In addition, defendant estimated that a few seconds transpired from the time he saw the rear brake lights of plaintiff's car activate, until he impacted the rear of plaintiff's car. Under the circumstances, there is no valid line of reasoning or permissible inference which could lead a jury to conclude that plaintiff's alleged conduct of rear ending a third car, rather than defendant's own failure to maintain a safe distance, was a proximate cause of defendant's rear end collision with plaintiff's car. See Waters v. City of New York, 278 AD2d 408 (2nd Dept. 2000); Johnson v. Phillips, 261 AD2d 269 (1st Dept. 1999). Defendant had a duty to keep a safe distance between his car and the cars ahead. See Vehicle and Traffic Law §1129. His failure to do so in the absence of a non-negligent explanation constitutes negligence as a matter of law. See Levin v. Taylor, 268 AD2d 566 (2nd Dept. 2000); Marscitti v. Greene, 250 AD2d 821 (2nd Dept. 1998); Leal v. Wolf, 224 AD2d 392 (2nd Dept. 1996).

Nevertheless, this Court finds that the disputed version of the accident -that plaintiff's vehicle had struck the rear of the vehicle in front of him, before being rear ended by defendant's vehicle - is a factual dispute that could make a difference a trial. To establish liability at trial against defendant, plaintiff, of course, must show that defendant's negligence was a substantial factor (proximate cause) of plaintiff's alleged injuries. See Nattan v. Helmsley-Spear, 50 NY2d 507, 520 (1980); Sheena v. City of New York, 40 NY2d 496, 501 (1976). If the jury in this case were to disregard plaintiff's version and fully credit defendant's version, that plaintiff's car had struck the rear of another vehicle before it got rear ended, an [*4]issue of fact would be raised as to the extent, if any, to which defendant's rear collision with plaintiff's vehicle contributed to plaintiff's injuries. On the record before this Court, it cannot be said that defendant's negligence was the cause of plaintiff's injuries.

Moreover, before plaintiff may proceed to damages under Insurance Law § 5102(d), both liability and serious injury must be established. In the instant case, plaintiff established negligence based on the read-end collision, but never raised the issue of serious injury, which is a threshold matter separate from the issue of fault. Reid v. Brown ,388 AD2d 331 (1st Dept. 2003), overruling Porter v. SPD Trucking, 284 AD2d 181 (1st Dept. 2001) and Maldonado v. DePalo, 277 AD2d 21 (1st Dept. 2000). Accordingly, since the issue of serious injury has not been established, the action shall proceed on that issue and proximate cause, and, if both are established, on damages.

Conclusion

For the foregoing reasons, it is

ORDERED that plaintiff's motion for partial summary judgment on liability (negligence) is granted, and plaintiff shall proceed with his action against defendant on the issue of proximate cause, the threshold issue of serious injury pursuant to Insurance Law §5102(d), and damages.

This constitutes the Decision and Order of the Court.

Dated: February 27, 2006 __________________________

Bronx, New York Hon. Dianne T. Renwick, J.S.C.