Bodden v Stouall

[*1] Bodden v Stouall 2009 NY Slip Op 52731(U) [26 Misc 3d 1218(A)] Decided on March 23, 2009 Supreme Court, Bronx County Billings, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 23, 2009
Supreme Court, Bronx County

Camille Bodden, Plaintiff

against

Robert Stouall, Defendant



16225/2007



For Plaintiff

Andrew Hirschhorn Esq.

1 Cross Island Plaza, Rosedale, NY 11422

For Defendant

Julie Sherwood Esq.

Buratti, Kaplan, McCarthy & McCarthy

1 Executive Boulevard, Yonkers, NY 10701

For Third Party Defendant Shen

Rhonda Barry Esq.

Barry & Associates, LLC

131 East Ames Court, Plainview, NY 11803

Lucy Billings, J.

Plaintiff sues to recover for personal injuries she sustained July 5, 2006, when a motor vehicle operated by third [*2]party defendant Shen hit the rear of the motor vehicle plaintiff was operating, and her vehicle hit the rear of a motor vehicle owned and operated by defendant-third party plaintiff Stouall on the Grand Central Parkway in Queens County. Defendant moves for summary judgment dismissing him from this action based on his nonliability for the collision. C.P.L.R. § 3212(b).

The circumstances of the collision and defendant's request for relief require the court to analyze the effect of Tutrani v. County of Suffolk, 10 NY3d 906 (2008), on prior controlling authority. For the reasons explained below, that decision poses an impediment to summary judgment for defendant, at least on the current record. In view of that decision's uncertain effect, the incomplete facts in this action raise questions that render denial of his motion the more prudent course at this stage.

II.SUMMARY JUDGMENT ON LIABILITY FOR THE COLLISION

A driver travelling behind another vehicle has a duty to maintain a safe distance behind the front vehicle, whether it is moving or stopped, to avoid a rear end collision in the event the front vehicle slows down or stops, even suddenly. NY Veh. & Traf. Law (VTL) § 1129(a); Woodley v. Ramirez, 25 AD3d 451, 452 (1st Dep't 2006); Mullen v. Rigor, 8 AD3d 104 (1st Dep't 2004); Malone v. Morillo, 6 AD3d 324, 325 (1st Dep't 2004); Figueroa v. Luna, 281 AD2d 204, 206 (1st Dep't 2001). Defendant's affidavit, that, while his vehicle was slowing to a stop in front of plaintiff's vehicle, her vehicle hit his from the rear, establishes his lack of negligence and contribution in causing the collision and thus a prima facie defense to liability for the collision. Francisco v. Schoepfer, 30 AD3d 275 (1st Dep't 2006); Garcia v. Bakemark Ingredients (E.) Inc., 19 AD3d 224 (1st Dep't 2005). See Somers v. Condlin, 39 AD3d 289 (1st Dep't 2007); Woodley v. Ramirez, 25 AD3d at 452.

Defendant's affidavit shifts the burden to plaintiff and the driver and owner of the vehicle behind hers to present a reason attributable to defendant for their failure to maintain a safe distance behind the vehicles in front. Francisco v. Schoepfer, 30 AD3d at 276; Woodley v. Ramirez, 25 AD3d at 452; Mullen v. Rigor, 8 AD3d 104; Jean v. Zong Hai Xu, 288 AD2d 62 (1st Dep't 2001). Third party defendant Shen's affidavit in opposition explains that, as his vehicle descended a hill and rounded a curve, he observed defendant's vehicle stop suddenly and plaintiff's vehicle hit defendant's from the rear, and Shen was unable to avoid skidding into plaintiff's vehicle on the wet road. While Shen's duty to maintain a safe distance behind plaintiff's vehicle in front includes taking account of observable weather and road conditions, whether Shen was free from negligence when driving on the wet road or would have avoided hitting plaintiff's vehicle were he driving more carefully bears on his, not defendant's, liability for the collision. Malone v. Morillo, 6 AD3d at 325; Mitchell v. Gonzalez, 269 AD2d 250, 251 (1st Dep't 2000). No party currently seeks summary judgment on Shen's liability or nonliability for the collision. [*3]

For purposes of defendant's motion, Shen's account is relevant only insofar as it indicates that defendant's vehicle stopped suddenly and that this sudden stop was a contributing cause of the collision. At least until recently, the above authority foreclosed a front vehicle's sudden stop, unaccompanied by its driver's other negligent conduct, as a basis for attributing fault to the front driver for a rear vehicle's collision with the front vehicle. Only evidence that the front vehicle veered in front of the rear vehicle, VTL § 1128(a); Summers v. Teddy Cab Corp., 50 AD3d 671, 672 (2d Dep't 2008); White v. Gooding, 21 AD3d 485 (2d Dep't 2006); Jacino v. Sugerman, 10 AD3d 593, 595 (2d Dep't 2004); Neryaev v. Solon, 6 AD3d 510 (2d Dep't 2004), failed to signal a change of direction, was operating with malfunctioning brake lights, VTL § 1163(c) and (d); Ramos v. Rojas, 37 AD3d 291, 292 (1st Dep't 2007); Yass v. Liverman, 233 AD2d 110 (1st Dep't 1996); Morrison v. Montzoutsos, 40 AD3d 717, 718 (2d Dep't 2007), or otherwise violated the Vehicle and Traffic Law or regulations under it would raise issues as to the front driver's contributing fault. See Wilson v. Certain Cab Corp., 303 AD2d 252, 253 (1st Dep't 2003); Figueroa v. Cadbury Util. Constr. Corp., 239 AD2d 285 (1st Dep't 1997); Schlanger v. Doe, 53 AD3d 827, 828-29 (3d Dep't 2008); Gibson v. Gentry, 16 AD3d 744, 745 (3d Dep't 2005).

Tutrani v. County of Suffolk, 10 NY3d 906, may have altered this state of the law and opened the door to finding a sudden stop a contributing cause of a rear end collision. In that case, the front vehicle in a rear end collision "abruptly" decelerated, "while changing lanes," id. at 907, creating a "lane obstruction." Id. at 908. While under prior authority, only the "changing lanes" would have raised an issue of the front driver's fault, Tutrani does not indicate that this fact is critical to finding the front driver a contributing cause of the collision or that the "lane obstruction" must result from changing lanes rather than the abrupt deceleration. The front vehicle "abruptly" decelerating also suggests the absence of any signal, but no more so than Shen's account of defendant's vehicle "suddenly" stopping. Aff. of Rhonda H. Barry, Ex. A ¶ 3. Nor does Tutrani delineate any distinction between the lane obstruction in that case and Shen's account of inability "to exit that lane to avoid the accident" involving plaintiff's vehicle directly in front of Shen and defendant's vehicle in front of plaintiff, because of traffic in the adjacent lane. Barry Aff., Ex. A ¶ 4.

Although defendant's affidavit suggests defendant gradually slowed down, rather than decelerating abruptly or stopping suddenly, this conflict, of course, merely raises a factual issue to be resolved through further disclosure or a trial. The same result ensues from plaintiff's claim in a New York City Police Department "INCIDENT REPORT" that her vehicle was hit by Shen's vehicle, causing her vehicle to hit defendant's vehicle. Id., Ex. E at 3. Moreover, this report is not certified, C.P.L.R. §§ 4518(c), 4520, 4540(a) and (b); People v. Mertz, 68 NY2d 136, [*4]147-48 (1986); People v. Brown, 221 AD2d 270, 271 (1st Dep't 1995); People v. Smith, 258 AD2d 245, 249-50 (4th Dep't 1999); People v. Hudson, 237 AD2d 943, 944 (4th Dep't 1997); see People v. James, 4 AD3d 774, 775 (4th Dep't 2004), nor does any witness lay the foundation for the report's admissibility as a business record or other exception to the rule against hearsay. E.g., C.P.L.R. § 4518(a); People v. Mertz, 68 NY2d at 147; Zuluaga v. P.P.C. Constr., LLC, 45 AD3d 479, 480 (1st Dep't 2007); Vento v. City of New York, 25 AD3d 329, 330 (1st Dep't 2006); Holliday v. Hudson Armored Car & Courier Serv., 301 AD2d 392, 396 (1st Dep't 2003). See People v. Rawlins, 37 AD3d 183, 184 (1st Dep't 2007), aff'd, 10 NY3d 136 (2008); Kupferle v. Deidra Transp., 300 AD2d 192 (1st Dep't 2002). While the second layer of hearsay within the report, plaintiff's description of the collision recorded by a police officer, might be admissible as an admission if the report itself were in admissible form, her description does not concede facts against her interest. People v. Burns, 6 NY3d 793, 794 (2006); People v. Morgan, 76 NY2d 493, 498-99 (1990); Cover v. Cohen, 61 NY2d 261, 274 (1984); Field v. Schultz, 308 AD2d 505, 506 (2d Dep't 2003). See People v. Thomas, 68 NY2d 194, 199-200 (1986).

More evidence regarding the speed and movement of defendant's vehicle and the sequence of the impacts between the vehicles behind or in front of one another might well delineate sharper distinctions between this action and Tutrani, so that defendant's nonliability is free from doubt. Neither driver behind defendant attests whether or how long the brake lights on defendant's vehicle were illuminated before the impacts or whether the drivers behind even applied their vehicles' brakes before their vehicles hit the vehicle in front. Nor does plaintiff herself ever attest which impact occurred first. Such evidence could reveal that defendant's sudden stop, even if it otherwise may be a basis for his liability, was not the cause of the collision here. On the other hand, none of the drivers or other evidence indicates whether defendant's vehicle changed its direction, thus creating an unavoidable obstruction, and placing his conduct unquestionably within the circumstances imposing liability under prior controlling authority, as well as Tutrani. Tutrani v. County of Suffolk, 10 NY3d at 907-908.

While Shen's affidavit is limited in these respects, his observation of defendant's vehicle ahead of Bodden's vehicle and when it hit defendant's may have been limited. Furthermore, Shen is unlikely to volunteer, through his affidavit, evidence increasing his exposure in comparison to defendant's fault, in the third party action, or in plaintiff's action against Shen or his action against defendant, to be jointly tried with the action here. Plaintiff, on the other hand, offers no account whatsoever, to corroborate the inadmissible report that her vehicle hit defendant's vehicle because Shen's vehicle hit hers, propelling it forward, or otherwise. She merely protests that she has not had an opportunity to depose defendant. While she may be reluctant to implicate Shen where she has sued only [*5]defendant in this action, she fails to indicate what defendant's testimony would reveal that she could not observe and thus attest to herself: that his vehicle veered into her lane or slowed without signalling, for example. Nor does she otherwise explain her failure to present her own affidavit of facts necessary to implicate defendant and rebut his account. See C.P.L.R. § 3212(f); Jackson v. Diabate, 274 AD2d 356 (1st Dep't 2000); Johnson v. Phillips, 261 AD2d 269, 270 (1st Dep't 1999); Rainford v. Sung S. Han, 18 AD3d 638, 639-40 (2d Dep't 2005); Niyazov v. Bradford, 13 AD3d 501, 502 (2d Dep't 2004).

Nevertheless, even if plaintiff does not justify her own disclosure request, Shen's limited account of all the circumstances surrounding the three vehicles' collision, potentially imposing liability on defendant under Tutrani v. County of Suffolk, 10 NY3d at 907-908, weighs in favor of providing the opportunity to cross-examine defendant and to depose plaintiff as well. Both likely will shed light on the abruptness of defendant's deceleration, his prior direction of travel, whether his rear signal lights illuminated, when plaintiff applied her vehicle's brakes, or the impacts' sequence.

III.CONCLUSION

In sum, the current record demonstrates that the parties' depositions, still to be conducted, may contradict, undermine, amplify, or alter the skeletal accounts in defendant's and Shen's affidavits on which defendant and Shen rely and thus affect the determination of defendant's motion. C.P.L.R. § 3212(f); Palmer v. Trachtenberg, 268 AD2d 304 (1st Dep't 2000); Josephson v. Crane Club, 264 AD2d 359, 360 (1st Dep't 1999); Vitiello v. Mayrich Constr. Corp., 255 AD2d 182, 184 (1st Dep't 1998); Chiambalero v. Waldbaum's Supermarket, 250 AD2d 360 (1st Dep't 1998). As no note of issue is yet filed, Shen and plaintiff still may develop the record, so that it is fully adequate to determine whether defendant is entitled to the dispositive relief he seeks. See Mayer v. New York City Tr. Auth., 39 AD3d 349 (1st Dep't 2007); Ptacek v. City Wide Asphalt Paving Co., 305 AD2d 119, 120 (1st Dep't 2003).

Consequently, the court denies defendant's motion for summary judgment, at least until third party defendant Shen and plaintiff have an opportunity to depose defendant and each other. C.P.L.R. § 3212(f). This decision constitutes the court's order. The court will mail copies to the parties' attorneys.

DATED: March 23, 2009

_____________________________

LUCY BILLINGS, J.S.C.