State Farm Fire & Casualty Co. v Page Taxi Corp.
2012 NY Slip Op 30955(U)
April 9, 2012
Supreme Court, Queens County
Docket Number: 21447/2009
Judge: Robert J. McDonald
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SHORT FORM ORDER
SUPREME COURT - STATE OF NEW YORK
CIVIL TERM - IAS PART 34 - QUEENS COUNTY
25-10 COURT SQUARE, LONG ISLAND CITY, N.Y. 11101
P R E S E N T : HON. ROBERT J. MCDONALD
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STATE FARM FIRE & CASUALTY COMPANY
a/s/o BRANDON CAMERON,
Index No.: 21447/2009
Motion Date: 03/26/12
Motion No.: 40
- against Motion Seq.: 1
PAGE TAXI CORP. and JACEK KOCHANOWSKI,
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The following papers numbered 1 to 13 were read on this motion by
defendants Page Taxi Corp and Jack Kochanowski for an order
pursuant to CPLR 3212(b) granting summary judgment in favor of
defendants dismissing plaintiffâs complaint:
Notice of Motion-Affidavits-Exhibits.......................1 - 6
Defendantâs Affirmation in Opposition-Affidavits...........7 - 10
Plaintiffsâ Reply Affirmation..............................11 -13
This is an action by State Farm Fire & Casualty Company to
recover for property damage sustained by the vehicle owned by
plaintiffâs subrogor, Brandon Cameron. The vehicle was damaged as
the result of a three-car motor vehicle accident that occurred on
February 8, 2008 on the upper level of the northbound Manhattan
Bridge, Kings County, New York. The accident occurred when the
defendantsâ taxicab was struck in the rear by the vehicle
operated by Cameron. As a result of the impact the taxicab was
propelled into the rear of a bus.
The plaintiff commenced this action by the filing of a
summons and complaint on August 11, 2009. Plaintiff seeks
recovery for monies paid to its subrogor for damages sustained as
a result of defendantsâ negligence in the operation of their
motor vehicle. In the complaint, plaintiff asserts that the
defendant driver was negligent in improperly changing lanes
across a double white line and striking the Cameron vehicle.
Issue was joined by service of defendantsâ verified answer dated
August 17, 2009. Defendants now move for an order pursuant to
CPLR 3212(b), granting summary judgment dismissing the
plaintiffâs complaint on the ground that Cameronâs vehicle
negligently struck the rear of the defendantsâ taxicab and as
such the defendants are not liable for the damage to the Cameron
In support of the motion, defendants submit an affidavit
from counsel, Brian J. Matthews, Esq; a copy of the pleadings;
and a copy of the transcript of the examinations before trial of
defendant Jacek Kochanowski and plaintiffâs subrogor, Brandon
In his examination before trial taken on March 30, 2009, Mr.
Kochanowski testified that on the date of the accident, February
8, 2008, he was a taxi driver employed by Page Taxi Corp. He
testified that he was coming from Brooklyn and was traveling to
Manhattan on the upper level of the Manhattan Bridge. He was
driving in the left lane at a rate of 20-25 miles per hour.
Subsequently he slowed his vehicle to 15-20 miles per hour, put
on his right turn signal and moved his vehicle into the right
lane. He stated that the closest car in the right lane when he
changed lanes was 5 - 6 car lengths away. He stated that 5 - 10
seconds after he changed lanes, his vehicle was struck in the
rear by the vehicle driven by Brandon Cameron. He stated that the
impact was very heavy and caused his vehicle to hit the right
side of the bridge. After hitting the bridge he lost control of
his vehicle which then moved to the left and came into contact
with the rear of a bus that had been driving in the left lane.
Brandon Cameron was also deposed on March 30, 2009. He
stated that at the time of accident he had taken the Manhattan
Bridge heading towards Manhattan to go to a restaurant. He was
operating his vehicle in the right hand lane at a rate of 35
miles per hour. He observed the defendantsâ taxicab in the left
lane traveling at a rate of 5 - 10 miles per hour. According to
Mr. Cameron, when the taxi was less than one car length away in
the left lane, the taxi attempted to change lanes directly in
front of his vehicle without putting on his right turn signal.
Because the taxi cut him off, his vehicle struck the taxicab
while the cab was partially in the right lane and partially in
the left lane. When the police arrived on the scene he told the
responding officer that he was traveling in the right lane when
the yellow cab changed lanes in front of him and he hit the cab
in the rear.
Defendantsâ counsel contends that the accident was caused
solely by the negligence of Mr. Cameron in that he failed to keep
a safe distance and failed to safely stop his vehicle prior to
rear-ending the plaintiffâs vehicle. Counsel asserts that Mr.
Kochanowski testified that prior to changing lanes he saw
plaintiffâs vehicle 5 - 6 car lengths behind him, signaled,
checked his mirrors, and safely changed to the right lane. The
taxi driver stated that he was driving in the right lane for 10
seconds before his vehicle was struck in the rear. Counsel
asserts that when a rear end collision occurs, such collision is
sufficient to create a prima facie case of liability and imposes
a duty of explanation with respect to the operator of the
offending vehicle. Counsel contends, therefore, that the
defendants are entitled to summary judgment dismissing the
plaintiffâs complaint because Mr. Cameron was solely responsible
for causing the accident while the taxi driver, Mr. Kochanowski,
was free from culpable conduct.
In opposition to the motion, plaintiffâs counsel, Stuart D.
Markowitz, Esq., contends that Mr. Cameronâs deposition testimony
presents a sufficient non-negligent explanation as to how and why
the rear-end collision occurred. Counsel contends that evidence
that the taxicab made a sudden lane change directly in front of
Cameronâs vehicle, without signaling, is sufficient to rebut the
inference of negligence by providing a nonnegligent explanation
for the collision (see Ortiz v Hub Truck rental Corp., 82 AD3d
725 [2d Dept. 2011]) and is sufficient to show that the defendant
may also have been culpable for causing the accident (see
Klopchin v Masri, 45 AD3d 737 [2d Dept. 2007]; Abott v Picture
East, Inc., 78 AD3d 869 [2d Dept. 2010]; Oguzturk v General
Electric Company, 65 AD3d 1110 [2d Dept. 2009]).
The police accident report which is based upon statements of
the drivers, states that Mr. Kochanowski was attempting to
overtake the bus which was traveling in front of him in the left
lane by passing the bus in the right lane causing him to strike
the Cameron vehicle and the bus. The police report indicates that
Kochanowski was cited for âAggressive Driving/Road Rage.â Counsel
contends that the evidence demonstrates that defendantsâ vehicle,
without signaling, improperly and illegally crossed into the
right lane and cut off the Cameron vehicle when it was not safe
to do so. Counsel claims that Cameron testified that he tried to
stop his vehicle but was unable to stop in time hitting the rear
of the taxi cab. Counsel claims the accident was caused solely by
defendants aggressive driving and violation of VTL Â§ 1128 which
prohibits the crossing of two solid white lines separating
traffic and by changing lanes when it was not safe to do so.
In reply, the defendant objects to the submission of the
photograph of the bridge as submitted without proper foundation.
Counsel also objects to the submission of the police report as it
has not been certified.
The proponent of a summary judgment motion must tender
evidentiary proof in admissible form eliminating any material
issues of fact from the case. If the proponent succeeds, the
burden shifts to the party opposing the motion, who then must
show the existence of material issues of fact by producing
evidentiary proof in admissible form, in support of his position
(see Zuckerman v. City of New York, 49 NY2d 557).
âWhen 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 colliding with
the other vehicle" (Macauley v ELRAC, Inc., 6 AD3d 584 [2d Dept.
2003]). It is well established law that a rear-end collision with
another vehicle creates a prima facie case of negligence on the
part of the driver of the rearmost vehicle, requiring the
operator of that vehicle to proffer an adequate, non-negligent
explanation for the accident (see Klopchin v Masri, 45 AD3d 737
[2d Dept. 2007]; Hakakian v McCabe, 38 AD3d 493 2d Dept. 2007];
Reed v. New York City Transit Authority, 299 AD2 330 [2d Dept.
2002]; Velazquez v Denton Limo, Inc., 7 AD3d787 [2d Dept. 2004]).
Here, Kochanowski stated that his vehicle had completely
changed lanes and he was operating in the right lane when his
moving vehicle was struck from behind by Cameronâs vehicle. Thus,
the defendant satisfied his prima facie burden of establishing
his entitlement to judgment as a matter of law on the issue of
liability by demonstrating that his vehicle was struck in the
rear by the vehicle operated by plaintiff(see Volpe v
Limoncelli,74 AD3d 795 [2d Dept. 2010]; Vavoulis v Adler, 43 ad3d
1154;[2d Dept. 2007]; Levine v Taylor, 268 AD2d 566 ).
Having made the requisite prima facie showing of entitlement
to summary judgment, the burden then shifted to plaintiff to
raise a triable issue of fact as to whether defendant was also
negligent, and if so, whether that negligence contributed to the
happening of the accident (see Goemans v County of Suffolk,
57 AD3d 478 [2d Dept. 2007]).
Viewing this evidence in the light most favorable to the
non-moving party and affording the plaintiff the benefit of every
favorable inference that can be drawn from the evidence, this
court finds that the plaintiffâs deposition testimony stating
that the defendant suddenly changed lanes in front of him and cut
him off in moving traffic was sufficient to raise a triable issue
of fact as to the proximate cause of the subject accident and was
sufficient to provide a non-negligent explanation for the rearend collision (see Scheker v Brown, 85 AD3d 1007 [2d Dept. 2011]
[the defendant raised a triable issue of fact as to whether she
had a non-negligent explanation for the collision stating that
the plaintiff driver suddenly changed lanes, directly in front of
her vehicle, without signaling, and then slowed down]; Ortiz v
Hub Truck Rental Corp.,82 AD3d 725 [2d Dept. 2011][evidence that
a plaintiff's vehicle made a sudden lane change directly in front
of a defendant's vehicle, forcing that defendant to stop
suddenly, is sufficient to rebut the inference of negligence];
Reitz v. Seagate Trucking, Inc., 71 AD3d 975 [2d Dept. 2010][the
defendants rebutted the inference of negligence by adducing
evidence that the plaintiffs' vehicle suddenly changed lanes
directly in front of their vehicle, forcing the defendant to stop
suddenly]; Oguzturk v. General Elec. Co., 65 AD3d 1110 [2d Dept.
2009][defendantâs explanation, that the accident occurred after
the plaintiff's vehicle suddenly, and without signaling, moved
from the center lane into the left lane directly in front of
defendantâs path and then slowed down, raised a triable issue of
fact sufficient to defeat the plaintiffs' motion]; also see
Connors v Flaherty, 32 AD3d 891 [2d Dept. 2006]; Briceno v
Milbry, 16 AD3d 448 [2d Dept. 2005]).
Accordingly, as the evidence in the record demonstrates that
there are triable issues of fact as to whether defendant may have
borne comparative fault for the causation of the accident and for
the reasons set forth above, it is hereby
ORDERED, that the defendantsâ motion for summary judgment
dismissing the plaintiffâs complaint is denied.
Dated: April 9, 2012
Long Island City, N.Y.
ROBERT J. MCDONALD