Calica v Feldman

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Calica v Feldman 2012 NY Slip Op 31387(U) May 11, 2012 Supreme Court, Nassau County Docket Number: 19381/09 Judge: Anthony L. Parga 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] SHORT FORM ORDER SUPREME COURT - STATE OF NEW YORK - NASSAU COUNTY Present: HON. ANTHONY L. PARGA .Justice PART 6 BERNARD C. CALICA INDEX NO. 19381/09 Plaintiff MOTION DATE: 03/19/12 SEQUENCE NO: 001 -against- DAVID K. FELDMAN Defendant. DAVID K. FELDMAN fhird- Party Plaintiff -against- JULIUS CALICA Third- Party Defendant. Notice of Motion, Aff & Exs............................................................................. Affirma tio n in 0 p pos iti 0 n... .....................,...... ................................................. Rep Iy Affi rmati o n... Upon the foregoing papers , third- party defendant Julius Calica s motion for summary judgment on the issue of liability, pursuant to CPLR 3212 , is granted. This is an action to recover damages for personal injuries allegedly sustained by plaintiff as a result of a rear-end motor vehicle accident which occurred on March 28 , 2007 , on Hempstead Turnpike , at or near its intersection with Elmont Road , in the County of Nassau , New York. Third- paJiy defendant , Julius Calica , contends that his vehicle was stopped on Hempstead Turnpike for a red traffic light at the time it was hit in the rear by defendant/third-party plaintiff David K. Feldman s vehicle. In support of his motion , third- party defendant Calica submits the deposition transcripts of all pmiies. [* 2] Third- party defendant Calica tcstified at his deposition that he was travcling in thc right lane when he noticed a red traffic light ahead of him from a distance of approximately 50 feet. He brought his vehicle to a slow stop at the tralTic light , and his vchiclc was struck from behind. He testified that his vehicle was pushed into the intersection as a result of the impact. Plaintiff, Bernarda C. Calica testified that she was a passenger in a vehicle driven by her son , Julius Calica , at the time of the accident. Their vehicle had been stopped at a red light for a few seconds when she felt an impact to the rear of their vehicle. She testified that their vehicle was propelled forward as a result of the impact and that the back window of their vehicle broke. Defendant/third- party plaintiff David K. Feldman testified at his deposition that traJlic was heavy on the date of the accident. He testified that he was traveling in the left lane prior to the accident and then changed laJ1es into the right lane. He also testified that the Calica vehicle had been traveling in the left lane behind him , but then passed him when he moved to the right lane. The Calica vehicle then changed lanes into the right lane in front of him. When the Calica vehicle changed lanes from the left lane to thc right lane , it was approximately thirty to forty feet in front of him. He also testified that less than one minute passed from the time the Calica vehicle changed into the right lane ahead of him to the time of the accident , although he also testified that the Calica vehicle had been traveling in front of him in the right lane for " about a minute , maybe two minutes " prior to the accident occurring. He observed the Calica vehicle decrease speed and the distance between their two vehicles decrease , but he maintained his speed , only taking his foot off of the accelerator. Defendant/third- party plaintitT Feldman testified that the Calica vehicle came to a stop one second prior to impact. He pressed the brake of his vehicle with " medium " pressure prior to the impact. At the time of thc contact between the vehicles , Mr. Feldman testified that the front bumper and grill of his vehicle came into contact with the rear quarter panel to center rear ofthe Calica vehicle. Defendant/third- party plaintiff Feldman did not see the color of the traffc light at the time of the impact. Third- party plaintiff Julius Calica has demonstrated a prima facie showing of entitlement to summary judgment on liability grounds. A rear-end collision with a stoppcd or stopping vehicle creates a prima facie case of ncgligence with respect to the operator of the rearmost vehicle , and imposes a duty on the operator of the rearmost vehicle to come forward with an [* 3] (Carman v. Arthur J Edwards Mason adequate non-negligent explanation for the accident. Contracting Co. Inc. , 71 A. AD. 3d 515 (2d Dep t 2010); 3d 813 (2d Dcp t 2009); 3d 614 (2d Dep Harrington v. Kern 52 A. t 2(08); t 2(09); Ramirez v. Garner v. Chevalier Tran.\portation Corp" , 58 t 2009); Jumandeo v. Franks 56 A. Spoto 47 A.D. 3d 888 (2d Dep Woods v. Johnson Maynard v. Vandyke, Trombetta v. Cathone 59 A. D. 3d 526 (2d Dep Konstanzer 61 AD. 3d 837 (2d Dep AD.3d 802 (2d Dep t 2(10)(emphasis added); t 2(08); Johnston v 3d 473 (2d Dep t 2(08); 44 AD. 3d 1201 (2d Dep t 20(7)). A driver traveling behind another driver 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. (N. Y. Veh. & Traf. Law (VTL) ~ 1 I 29(a); Dicturel v. Dukureh 71 AD. 3d 588 (l sl Dep t 2010); Woodley v. Ramirez 25 AD. 3d 451 (1 st Dep 2008); Jumandeo v. Franks 56 A. t 2(06); Arias v. Rosario 52 A. D. 3d 551 (2d Dep 3d 614 (2d Dep t 2(08)). This includes the " duty to see what should be seen and to exercise reasonable care under the circumstance to avoid an accident." (DeAngelis v. Kirschner 171 A.D. 2d 1991); Kachuba v. A 593 , 595 , 567 N. Y.S. 2d 457 , 458- 59 (I sl Dep Cleaning Service , Inc. 273 A. & G 2d 277 (2d Dep t 2000)). Furthcr , the operator of a motor vehicle does not have a duty to anticipate a rear-end collision due to the negligence of another. (c';ee , Fiscella v. Gibbs 1999); Murphy v. Spickler 224 AD. 2d 261 A. 814 , 638 N. 2d 572 , 690 N. Y.S. 2d 713 (2d Dept. S.2d 188 (3d Dept. 1996)). The proponent of a summary judgement motion " must make a prima facie showing of entitlement to judgment as a matter of law , tendering sufficient evidence to demonstrate the absence of any material issues of fact." (A lvarez v. Prospect Hosp. 68 N. Y.2d 320 ( 1986)). Once the movant has demonstrated a prima facie showing of entitlement to judgement , the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form suffcient to establish the existence of material issues of a fact which require a trial of the action. (Zuckerman v. City of New York 49 N. Y.2d 557 (1980)). In opposition , defendant/third- party plaintiff Feldman contends that there is a question of fact with respect to the liability and conduct of both Feldman and Julius Calica which warrants the denial of the instant motion. Defendant/third party plaintiff contends that the deposition testimony of the two drivers leads to questions of fact as to the manner in which the third- party -'" /---- . " [* 4] defendant stopped in front of the defendant/third- party plaintiff prior to the collision and that the actions of the third party defendant bringing his vehicle to an abrupt stop or being stopped are issues which constitutes (sic) ' a reasonable excuse ' for a failure of the third- party plaitnitJ in this matter to bring his vehicle to a stop. - There is no evidence in the deposition testimonies before this Court that third- party defendant Calica made a sudden stop prior to the accident happening. Mr. Feldman , himself testified that the Calica vehicle changed into the right lane thirty to forty feet ahead of him and traveled in said lane for one to two minutes prior to the impact. As such , even defendantlthird- party plaintiffs own testimony does not indicate that there was a sudden stop by the third- pm1y defendant Calica. Further , the sudden stopping by the front driver is an insufficient explanation (Volpe v, to rebut the inference of negligence against the operator of the rear-most vehicle. Limoncell 74 AD. 3d 795 (2d Dep t 2010)( court found driver of rearmost vehicle negligent where the front vehicle made an abrupt stop and rearmost driver was unable to stop due to a wet roadway); Ramirez v. Konstanzer 61 AD. 3d 837 (2d Dep t 2009)(defendant's contention that plaintiff proceeded at a green light then suddenly stopped did not rebut the inference of negligence); Johnston v. Spoto 47 AD.3d 888 (2d Dep t 20(8)(defendant driver s explanation that plaintiffs vehicle stopped short was insufficient to raise a triable issue of fact). Defendant/third- party plaintiff David K. Feldman has not submitted a non-negligent explanation for the happening ofthe accident and has failed to raise a triable issue of fact suffcient to defeat third- party plaintiff's prima facie showing of entitlement to summary (See, Hakakian v, McCabe 38 A. D. 3d 493 833 N. Y.S. 2d judgment on liability grounds. Dept. 2007); David v. New York City 13d. of Education 19 AD. 3d 639 , 797 N. 106 (2d 2d 294 (2d Dept. 2005)). Accordingly, third- party defendant Julius Calica s motion for summary judgment on the issue of liability is granted , and the third party plaintiffs action is hereby dismissed in its entirety. Dated: May 11 2012 I -"" . l \ \VVi\ --- J c. \ Anthony L. parga ENTERED MAY 1 4 2012 NASSAU COUNTY COUNTY CLERK'S OFFICE [* 5] Cc: Russo , Apoznanski & Tambasco Attn: Susan Mitola , Esq. 875 Merrick Avenue Westbury, NY 11590 Sackstein , Sackstein & Lee , LLP 1140 Franklin Avenue , Suite 210 Garden City, NY 11530 Breen & Clancy 1355 Motor Parkway, Suite 2 Hauppauge , NY 11749

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