Ponce v Graven

Annotate this Case

Download PDF

Ponce v Graven 2012 NY Slip Op 30286(U) February 3, 2012 Sup Ct, Nassau County Docket Number: 600397/10 Judge: Denise L. Sher Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SCAN SHORT FORM ORDER SUPREME COURT OF THE STATE OF NEW YORK PRESENT: HON. DENISE L. SHER Acting Supreme Court Justice TRIAL/IAS PART 31 NASSAU COUNTY ANIBAL PONCE, Plaintiff - against - Index No. : 600397/10 Motion Seq. No. : 02 Motion Dates: 11/28/11 WILLIAM M. GRAVEN , MTA LONG ISLAND BUS MTA BUS COMPANY and METROPOLITAN TRANSPORTATION AUTHORITY Defendants. The followin papers have been read on this motion: Papers Numbered Notice of Motion Affirmation and Exhibits Affirmation in O osition and Exhibit Reply Affirmation and Exhibit Upon the foregoing papers , it is ordered that the motion is decided as follows: Plaintiff moves , pursuant to CPLR 93212 , for an order granting parial sumar judgment against defendants on the issue of liabilty. Defendants oppose the motion. This action arises from a motor vehicle accident which occured approximately 12:10 p. on Februar 11, 2010 , at , at the intersection ofN. Franin Street and W. Columbia Street Hempstead, County of Nassau , State of New York. The accident involved two vehicles, a 1999 Ford Suburban operated by plaintiff and an MT A Long Island Bus operated by defendant Wiliam M. Graven (" Graven ) and owned by defendants MT A Long Island Bus , MT A Bus Company and Metropolitan Transportation Authority (collectively the " MT A Long Island Bus [* 2] defendants ). Plaintiff commenced the action by the filing and service of a Sumons and Verified Complaint on or about June 1 2010. Issue was joined on or about July 16 2010. Briefly, it is plaintiff s contention that the accident occured when , while his vehicle was stopped at a red light , it was struck in the rear by the MTA Long Island Bus defendants ' vehicle. Plaintiff submits that , at the Examination Before Trial (" EBT" ) of defendant Graven, he testified that he rear-ended plaintiff s vehicle when it was stopped in front of his vehicle at a red light. He . stated that his vehicle slid because of the alleged ice on the pavement and , as a result, he was See unable to stop or otherwse prevent rear-ending plaintiff s vehicle. Plaintiff s Affirmation in Support Exhibit E. Plaintiff claims that defendant Graven was the negligent par in that he failed to maintain a safe distance behind plaintiffs vehicle , as well as failed his duty to exercise reasonable care under the circumstances to avoid an accident. Plaintiff additionally claims that theMTA Long Island Bus defendants canot come up with a non-negligent explanation for striking plaintiffs vehicle in the rear , nor any conduct that would constitute any comparative negligence on plaintiff s par. In opposition to the motion , the MT A Long Island Bus defendants first argue that plaintiff has not submitted any evidence in admissible form. With respect to the EBT transcripts of plaintiffand defendant Graven submitted by plaintiff in support of his motion , the MT A Long Island Bus defendants submit that both transcripts are unsigned by the respective deponents and plaintiff has failed to indicate that said transcripts were ever forwarded to the deposed witnesses for their review and that said witnesses failed to sign and retur the transcripts within sixty days pursuant to CPLR 9 3116(a). The MTA Long Island Bus defendants therefore contend that the EBT transcripts anexed to plaintiff s motion are not in admissible form and their contents ," [* 3] canot be considered by the Court. The MTA Long Island Bus defendants fuher argue that plaintiffs own Affidavit submitted as Exhibit F in his motion, is facially defective and inadmissible. The MT A Long Island Bus defendants state that CPLR 9 2101(b) requires affidavits of non-English witnesses be accompanied by a translator speaking s affdavit or verification setting forth the translator qualifications and the accuracy of the English version submitted to the Cour. Plaintiff s Affidavit is prepared in English and signed by plaintiff who only speaks , writes and understands Spansh. Said Affidavit was translated by plaintiffs attorney who speaks both Spanish and English. The MT A Long Island Bus defendants contend that plaintiffs Affdavit must be accompanied by an affidavit or verifcation of a certified professional translator or Cour Interpreter. The MT A Long Island Bus defendants next argue that the uncertified copy of the Police Accident Report, offered by plaintiff as an exhibit to his motion , is inadmissible for use in a sumar judgment motion. They claim that the uncertified Police Accident Report is inadmissible to indicate a par' s liability because the police officer who prepared said report was not an eyewitness to the subject accident and, thus , said report constitutes hearsay. The MT A Long Island Bus defendants fuher contend that (i)f this Cour decides that plaintiff has established a prima facie entitlement to sumar judgment by virtue of the attched items of evidence in plaintiffs motion , it is respectfully submitted that the existence of triable issues of fact preclude sumar judgment." The MTA Long Island Bus defendants submit that defendant Graves explains that he properly stepped on the brake within a reasonable distace behind plaintiff s vehicle and would have come to a complete and full stop behind plaintiff s vehicle, but was nonetheless caused to strike the rear of plaintiff s vehicle because his bus slid on [* 4] ice that had unexpectedly formed on the roadway. See Plaintiff s Affirmation in Support Exhibit The MT A Long Island Bus defendants argue that the cours have routinely denied sumar judgment to moving plaintiffs when unexpected ice causes brake failure and that cours thoughout the State of New York have consistently upheld jur decisions which hold a motorist as " not negligent" for skidding on ice and causing motor vehicle accidents. The MT A Long Island Bus defendants submit that defendant Graven s encounter with unexpected ice , which caused his bus to slide into the rear of plaintiff s vehicle , is a non- negligent explanation which courts have held sufficient to warant denial of sumar judgment and the issue as to whether or not they should stil be held negligent is properly left for the trier of fact. In reply to the MT A Long Island Bus defendants ' opposition , with respect to the argument as to the admissibilty ofthe EBT transcripts , plaintiff submits that CPLR 9 3116(a) states in par that " (i)fthe witness fails to sign and retun the deposition within sixty days , it may be used as fully as though signed. No changes to the transcript may be made by the witness more than sixty days after submission to the witness for examination. " Plaintiff claims that , on August . 26 , 2010 , the MT A Long Island Bus defendants submitted to plaintiff, for review and signature pursuant to CPLR 9 3116(a), a copy of plaintiff s 50- H hearing transcript and , on July 23 , 2011 the MT A Long Island Bus defendants submitted to plaintiff, for review and signature pursuant to CPLR 9 3116( a), a copy of plaintiff s EBT transcript. Since plaintiff did not sign and retur the EBT transcript within sixty days , it may be adduced that plaintiff did not want to change any of his testimony and thus his transcripts may be used as though as fully signed. Plaintiff submitted a copy of defendant Graven s EBT transcript to the MT A Long Island Bus defendants pursuant to CPLR 9 3116( a) and a signed copy was not retued within sixty [* 5] days and therefore said EBT transcript may be used as though as fully signed. Plaintiff fuher argues that " irrespective of the signature , or lack thereof, the Defendant's transcript is admissible because it both qualified as an admission against interest, and , because Defendant himself used portions of his testimony in support of his Opposing papers. With respect to the MT A Long Island Bus defendants ' argument as to the admissibilty of plaintiffs Affidavit because the accompanying "Affidavit of Translation" was prepared by plaintiffs own attorney, plaintiff argues that nowhere in CPLR 9 2010(b) does it indicate that the interpreter must be legally qualified to serve as a cour interpreter for legal proceedings. Plaintiff submits that plaintiffs Affidavit in his instant motion is accompanied by a translator s attestation and said translator is a qualified professional-an attorney who speaks English and Spanish fluently. Said attorney s qualifications and the accuracy of her translation were attested to in her testator s attestation. With respect to the MTA Long Island Bus defendants ' arguent as tothe admissibilty of the Police Accident Report , plaintiff argues that the police received their information from defendant Graven therefore the report constitutes a par admission. Finally, plaintiff argues that the MTA Long Island Bus defendants ' arguent that defendant Graven s encounter with unexpected ice , which caused his bus to slide into the rear of plaintiffs vehicle , is a non-negligent explanation is not, in fact, a non-negligent explanation. It is well settled that the proponent of a motion for sumar judgment must make a prima facie showing of entitlement to judgment as a matter of law by providing suffcient See Silman evidence to demonstrate the absence of material issues of fact. Fox Film Corp. 3 N. Y.2d Y.2d 320 508 N. Y.S. 2d 595 (1980); 395 , 165 N. 2d 923 (1986); Bhatti v. 2d 498 (1957); Zuckerman v. Alvarez City of New York, v. v. Twentieth Century- Prospect Hospital, 68 49 N. Y.2d 557 , 427 Roche 140 A.D.2d 660 528 N. Y.S. 2d 1020 (2d Dept. 1988). To [* 6] obtain sumar judgment, the moving par must establish its claim or defense by tendering sufficient evidentiar proof, in admissible form , sufficient to warant the cour , as a matter of law, to direct judgment in the movant' s favor. Mfrs., Inc. 46 N. Y.2d 1065, v. 64 N. Farrell Lines Inc. prima facie If a sufficient Associated Fur 416 N. Y.S.2d 790 (1979). Such evidence may include deposition transcripts , as well as other proof anexed to an attorney Olan v. See Friends of Animals, Inc. 2d 1092 See s affirmation. CPLR 93212 (b); 489 N. Y.S. 2d 884 (1985). showing is demonstrated , the burden then shifts to the non-moving par to come forward with competent evidence to demonstrate the existence of a material issue of fact , the existence of which necessarily precludes the granting of sumar City of New York 49 N. Y.2d 557 , 427 When considering a motion for sumar judgment, the fuction of supra. 2d 595 (1980), v. See Zuckerman judgment and necessitates a trial. the cour is not to resolve issues but rather to determine if any such material issues of fact exist. v. See Silman supra. Twentieth Century- Fox Film Corp. 3 N. Y.2d 395 , 165 N. Y.S. 2d 498 (1957), Mere conclusions or unsubstantiated allegations are insuffcient to raise a triable issue. Federal Ins. Co. 70 N. Y.2d 966, 525 N. Y.S.2d 793 (1988). v. See Gilbert Frank Corp. Furher , to grant sumar judgment , it must clearly appear that no material triable issue of fact is presented. The burden on the Cour in deciding this type of motion is not to resolve issues of fact or determine matters of credibilty, but merely to determine whether such issues exist. See Barr v. Albany County, Johnson 147 A.D. 2d 312, 50 N. Y.2d 247 428 N. Y.S. 2d 665 (1980); 543 N. Y.S.2d 987 (2d Dept. 1989). It is the existence of an issue , not See Barrett its relative strength that is the critical and controllng consideration. Y. 520 (1931); Cross v. Cross 112 A. 2d 62 , 491 N. 156 v. Jacobs , 255 S.2d 353 (18t Dept. 1985). The evidence should be construed in a light most favorable to the par moved Garfield 21 A.D. 2d Daliendo 249 N. Y.S.2d 458 (3d Dept. 1964). against. See Weiss [* 7] When the driver of an automobile approaches another automobile from the rear, he or she is bound to maintain a reasonably safe rate of speed and control over his or her vehicle and to exercise reasonable care to avoid collding with the other vehicle pursuant to New York State Vehicle and Traffic Law (" VTL" ) 9 1129(a). v. Bucceri S.2d 55 (2dDept. 2002); v. See Krakowska Niksa 298 AD.2d 561, 749 Frazer 297 AD. 2d 304 , 746 N. Y.S. 2d 185 (2d Dept. 2002). . A rear end collsion with a stopped vehicle establishes a on the par v. See Tutrani of the operator of the offending vehicle. case of negligence prima facie County of Suffolk 10 N. Y.3d 906 861 N. Y.S.2d 610 (2008). Such a collsion imposes a duty of explanation on the operator. v. See Hughes Cai 55 AD. 3d 675, 866 N. Y.S.2d 253 (2d Dept. 2008); AD.3d 358 827 N. Y.S.2d 181 (2d Dept. 2006); Belitsis v. v. Gregson Terry, 35 Airborne Express Freight Corp., 306 AD.2d 507 , 761 N. Y.S.2d 329 (2d Dept. 2003). Since a rear-end collsion with a stopped or stopping vehicle ' creates a case of prima facie liability with respect to the operator of the rearmost vehicle , the operator is therefore required to See rebut the inference of negligence by providing a non-negligent explanation for the collsion. v. Francisco Schoepfer 30 A. D.3d 275, 817 N. S.2d 52 (1 Dept. 2006); McGregor v. Manzo 295 A. D.2d 487 , 744 N. Y.S.2d 467 (2d Dept. 2002). Vehicle stops which are foreseeable under the prevailng traffic conditions , even if sudden and frequent , must be anticipated by the driver who follows, since the following driver is See Shamah under a duty to maintain a safe distance between his or her car and the car ahead. Richmond County Ambulance Service, Inc. 279 AD.2d 564 , 719 N. Drivers must maintain safe distaces between S.2d 287 (2d Dept. 2001). their cars and the cars in front of them and this rule imposes on them a duty to be aware of traffc conditions including stopped vehicles. VTL 9 1129(a); Johnson v. Philips 261 AD. 2d 269 690 N. S.2d 545 (18t Dept. 1999). See [* 8] Drivers have a duty to see what should be seen and to exercise reasonable Care See Filppazzo circumstances to avoid an accident. v. unger the Santiago 277 AD.2d 419 , 716 N. S.2d 71 0 (2d Dept. 2000). The Cour finds that the transcripts from plaintiffs and defendant Graven s EBT testimony and plaintiffs Affdavit , with its accompanying translation , are admissible evidence and that plaintiff, in his motion , has demonstrated prima facie entitlement to sumar judgment on the issue of liabilty against the MT A Long Island Bus defendants. Therefore , the burden shifts to the MT A Long Island Bus defendants to demonstrate an issue of fact which precludes sunar judgment. v. See Zuckerman City of New York 49 N. 2d 557 , 427N. Y.S. 2d 595 (1980). After applying the law to the facts in this case , the Cour finds that the MT A Long Island Bus defendants have met their burden and demonstrated an issue of fact which precludes summar judgment. A genuine issue of material fact exists as to the surface conditions ofthe roadway at the place and time of the subject accident and the role said conditions played in the accident. As previously stated as a general rule, a rear-end collsion with a stopped or stopping vehicle creates a prima facie case of negligence with respect to the operator of the rearost vehicle , imposing a duty of explanation on that operator to excuse the collsion either though mechancal failure, a sudden stop of the vehicle ahead , an unavoidable skidding on a wet See DeLouise pavement or any other reasonable cause. 3d 489, 904 N. v. S.KI Wholesale Beer Corp. , 75 S.2d 761 (2d Dept. 2010) (holding that a genuine issue of material fact as to actual conditions of a parking garage floor during a snowstorm , and whether truck driver was driving slowly and cautiously at time of accident , precluded sumar judgment in automobile driver s action against trck driver for personal injuries he sustained from rear-end collsion in parking ramp). The MTA Long Island Bus defendants ' argue that defendant Graven s EBT [* 9] testimony details the fact that he properly stepped on the brake within a reasonable distance behind plaintiff s vehicle and would have come to a complete and ful stop behind plaintiff s vehicle , but was nonetheless caused to strike the rear of plaintiff s vehicle because his bus slid on ice that had unexpectedly formed on the roadway. The Cour finds that defendant Graven encounter with unexpected ice , which caused his bus to slide into the rear of plaintiff s vehicle , is a non-negligent explanation sufficient to warant denial of sumar judgment and the issue as to whether or not the MT A Long Island Bus defendants should stil be held negligent is properly left for the trier of fact. 2005); Simpson v. See also Briceno 304 A. Milbry, 16 AD. 3d 448 , 791 N. Y.S. 2d 662 (2d Dept. Eastman 300 AD. 2d 647 , 753 N. Jamaica Buses 262 AD.2d 511 , Corp., v. Atris 2d 104 (2d Dept. 2002); 693 N. Y.S.2d 607 (2d Dept. 1999); Ebanks v. Triboro Coach 2d 406 757 N. Y.S. 2d 296 (1st Dept. 2003). Accordingly, plaintiffs motion , pursuant to CPLR 9 3212 , for an order granting parial sumar judgment against defendant on the issue ofliability is hereby DENIED. This constitutes the Decision and Order of this Cour. ENTERJ:D FEB 07 2012 Dated: Mineola, New York Februar 3 , 2012 NASSAU l. ,-';;, COUNTY CLERK' S OFFICE

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.