Fesel v Bryant

[*1] Fesel v Bryant 2009 NY Slip Op 52732(U) [26 Misc 3d 1218(A)] Decided on February 2, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 2, 2009
Supreme Court, Bronx County

Thomas Fesel, Plaintiff

against

Ronald A. Bryant and GOOD SHEPARD SERVICES, Defendants



14220/2007

Lucy Billings, J.

Plaintiff sues to recover for personal injuries sustained March 7, 2007, when a motor vehicle owned by defendant Good Shepard Services and operated by defendant Bryant hit a motor vehicle operated by plaintiff from the rear at the intersection of Sedgwick and West Tremont Avenues, Bronx County. Plaintiff moves for summary judgment on defendants' liability for the collision and plaintiff's lack of comparative fault. C.P.L.R. § 3212(b) and (e).

The circumstances of the collision and plaintiff'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 does not pose an insurmountable impediment to summary judgment for plaintiff here. Both that decision and prior authority dictate that plaintiff's motion be granted.

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. & [*2]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). Plaintiff's deposition testimony and affidavit, that while his truck was stopped at a red light defendants' van hit his truck from the rear, establish a prima facie claim of negligence against defendants, the owner and driver of the van travelling behind. Somers v. Condlin, 39 AD3d 289 (1st Dep't 2007); Francisco v. Schoepfer, 30 AD3d 275 (1st Dep't 2006); Woodley v. Ramirez, 25 AD3d at 452; Garcia v. Bakemark Ingredients (E.) Inc., 19 AD3d 224 (1st Dep't 2005).

To rebut the presumption of negligence, defendants bear the burden to present a reasonable explanation for Bryant's failure to maintain a safe distance behind plaintiff's front vehicle other than Bryant's own negligence. 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). Bryant's deposition testimony is consistent with plaintiff's account of the collision, except that Bryant estimates plaintiff's truck was stopped approximately two seconds before the impact, in contrast to plaintiff, who estimates his truck was stopped approximately 15 seconds.

Defendants seize on this inconsistency as evidence that plaintiff's truck 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 an explanation constituting a viable defense to 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 VTL or regulations under it would raise issues as to the rear driver's lack of fault and 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).

While Tutrani v. County of Suffolk, 10 NY3d 906, may have altered this state of the law and opened the door to a sudden stop defense, even in that case, the front vehicle "abruptly" decelerated, suggesting the absence of any signal, and, more significantly, did so "while changing lanes," id. at 907, creating a "lane obstruction." Id. at 908. Here, despite Bryant's testimony that plaintiff's vehicle was stopped only two seconds before the impact, neither this nor any other admissible [*3]evidence demonstrates his vehicle decelerated abruptly or stopped suddenly, rather than gradually slowing down for the light ahead. Although Bryant testified that he reported to his supervisor and on a report form that the front vehicle "stopped short," and he ran into the back of it, Aff. of Duane R. Morgan, Ex. E at 55, 58, this testimony is hearsay, People v. Huertas, 75 NY2d 487, 492 (1990); People v. Reynoso, 73 NY2d 816, 819 (1988); People v. Johnson, 14 AD3d 434, 435 (1st Dep't 2005); People v. Weston, 249 AD2d 496 (2d Dep't 1998), as well as unsubstantiated by any facts regarding the speed or movement of plaintiff's vehicle. E.g., People v. Vasquez, 88 NY2d 561, 575 (1996). See People v. Crombleholme, 8 AD3d 1068, 1070 (4th Dep't 2004); People v. Hansen, 290 AD2d 47, 54 (3d Dep't 2002); People v. Fenner, 283 AD2d 516, 517 (2d Dep't 2001); Murphy v. Omer Constr. Co., 242 AD2d 964, 965 (4th Dep't 1997). Instead, Bryant admits that he observed the brake lights on plaintiff's vehicle illuminated for a "few seconds" before hitting the vehicle, Morgan Aff., Ex. E at 56, yet did not even apply his vehicle's brakes until "after I hit the vehicle in front, that's when I put on the brakes," thus revealing the cause of the collision. Id. at 47-48. Nowhere, moreover, does the evidence indicate plaintiff's vehicle changed its direction or created any unavoidable obstruction. Tutrani v. County of Suffolk, 10 NY3d at 907-908.

Bryant, of course, had ample opportunity to attest to such circumstances or other traffic or road conditions, such as an unobservable slippery surface or inclement weather, but never mentions adverse conditions of any kind. Since defendants present no viable rebuttal and thus furnish no explanation for the cause of the collision other than Bryant's own negligence, the court grants plaintiff's motion for summary judgment on defendant's liability for the collision and plaintiff's lack of comparative fault. C.P.L.R. § 3212(b) and (e).

DATED: February 2, 2009

_____________________________

LUCY BILLINGS, J.S.C.