Barr v Maia

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Barr v Maia 2012 NY Slip Op 31525(U) May 2, 2012 Supreme Court, Nassau County Docket Number: 16977/11 Judge: F. Dana Winslow 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 Present: HON. F. DANA WINSLOW, Justice TRiALIIAS, PART 3 NASSAU COUNTY HAROLD D. BARR, JR., Plaintiff, MOTION DATE: 3/8/12 MOTION SEQ. NO. : 001 -againstINDEX NO. : 16977/11 MUSTODEN M. MAlA and JORGE MAlA, Defendants. The following papers read on this motion (numbered 1- 3): Notice of Motio n. .... I'" .... I""""""""""""" I"."" .............. Affirma non in Opposition................... ",,".1 ................... Reply Affirma ti 0 n............................................................ Plaintiff moves pursuant to CPLR against defendants on the issue of liabilty to as a " special preference " pursuant to CPLR 3212 for an Order granting summar judgment Plaintiff also seeks what counsel refers only. 3212(c). This is a personal injury action arising out of a motor vehicle accident that occured on October 31 , 2011 at Jericho Turnpike near Herricks Road, in Nassau County, New York. Plaintiff alleges that he was driving westbound on Jericho Turnpike in the right lane , and that he gradually slowed down to enter a mall parking lot, when his vehicle operated by was hit in the rear by a vehicle owned by defendant JORGE MAA and , sworn to defendant MUSTODEN M. MAlA. See Affidavit of HAROLD D. BAR, JR. 2. In support of his motion, plaintiff also submits the Police Accident Report, which confirms that plaintiff s vehicle was hit in the rear by on February 9, 2012 (Motion Exh. B), defendants ' vehicle. (Motion Exh. A) MUSTODEN M. MAlA In opposition , defendant Minna Mustonen" that plaintiffs states that she was operating her vehicle " within the legal speed limit vehicle was traveling in front of her , and that " (s)uddenly the vehicle operated by " Affidavit plaintiff, Harold D. Bar, Jr. , came to an abrupt stop to turn into a parking lot. Maia Affidavit" of Minna Mustonen- Maia, sworn to on February 27 2012 (" MustonenMaia s/h/a g., [* 2] (Opposition Exh. A), ~~ 4 6. Defendants argue that the motion is premature because the parties have not had the opportunity to conduct depositions. prima It is well settled that a rear-end collision with a stopped vehicle establishes a case of negligence against the operator of the rear vehicle, shifting the burden to that operator to rebut the inference of negligence by providing a non-negligent explanation for the collsion. Napolitano v. Galletta, 85 AD3d 881. Franco v. Breceus , 70 A. D.3d 767; Eybers v. Silverman , 37 A. 3d 403. This rule extends to the situation where the facie lead vehicle was slowing at the time of the collsion. Dattilo v. Best Transp. Inc. , 79 AD3d 432. Less clear is whether, and in what circumstances , a sudden stop by the lead vehicle constitutes a sufficient explanation to defeat summary judgment. The Second Department has expressly stated that " (0 )ne of several nonnegligent explanations for a rear-end collsion is a sudden stop of the lead vehicle. " Klopchin v. Masri, 45 AD3d Napolitano, 85 AD3d at 882; Carhuayano Vargas v. Luxury Family Corp., 77 AD3d v. J&R Hacking, 28 AD3d 820; Foti v. Fleetwood Ride, Inc., 57 AD3d 724. Although this seems to be a clear and simple statement of the law , a close examination of these and similar cases reveals additional factors that may have influenced the determination , such as the lead driver failure to signal (Klopchin, 45 AD3d at 738; Drake v. Drakoulis, 304 AD2d 522), the lead driver s unexplained stop in moving traffic (Vargas v. Luxury Family Corp., 77 AD3d at 821; Foti, 57 AD3d at 725; Chepel, 306 AD2d at 235), or the lead driver sudden lane change before the stop (Fajardo v. City of New York, 2012 WL 1521808; Briceno v. Milbry. 16 AD3d 448). Such examples of negligence on the part of the lead driver may rebut the inference of negligence on the par of the rear driver , or the inference that such negligence was the sole proximate cause of the accident. See 737; Chepel v. Meyers, 306 AD2d 235. 413. See also The Cour wil not strain to reconcile this branch of case law with Second Department (and other) cases holding the reverse; that is, that a sudden stop by the lead driver is insuffcient to rebut the inference of negligence. See, e. Franco v. Breceus, 70 AD3d 767; LaMasa v. Bachman, 56 AD3d 340; Johnston v. Spoto, 47 AD3d 888. Some of these cases hold that a sudden stop " standing alone " is insufficient , implying that See, e. the allegation of additional factors might render the explanation sufficient. Franco, 70 AD3d at 768; Johnston, 47 AD3d at 889; Baron v. Murray, 268 AD2d 495. Others are predicated upon the statutory duty of a following driver to maintain a safe Vehicle & Traffic Law ~ 1129(a). In these cases , a sudden stop by the lead driver does not mitigate the rear driver s negligence , even in bad weather or slippery road conditions, unless the rear driver provides a non-negligent explanation -- not for the collsion , but for the failure See speed and distance between his or her vehicle and the vehicle ahead. [* 3] See to maintain a safe distance from the vehicle in front. LaMasa, 56 AD3d at 340; Pena Zakutny v. Gomez, 258 v. Allen, 272 AD2d 311; Mitchell v. Gonzalez, 269 AD2d 250; AD2d 521. In the case at bar , defendants offer no more than the bare allegation that plaintiff came to an abrupt stop to turn into a parking lot." The Mustonen-Maia Affidavit Did the provides no details or context. Did plaintiff signal that he was turning? defendant driver see his brake lights? What was the distance between her vehicle and that of the plaintiff? Was there a reason that she could not maintain a safe speed and distance within the behind plaintiff s vehicle? The defendant driver claims that she was driving " legal speed limit " but doesn t specify her speed , and provides no information about the traffic, weather and road conditions , or other facts to support the inference that she was driving at a safe speed under the circumstances. The defendant driver claims that she aim. tried to avoid the accident" but does not specify what she did in furterance of that The Court finds this insufficient to defeat summar judgment. To hold otherwise upon would be to allow the defendants ' burden in a rear-end collsion case to disappear the utterance of the magic words: " sudden stop. " For the purpose of this summar judgment motion , the Court must accept as tre defendants ' claim that plaintiff s vehicle came to a sudden stop. In the absence of specific facts, however, suggesting negligence on the part of the plaintiff or non-negligence on the part of the defendant driver, the Court can only infer that the rear-end collsion was caused by the defendant driver s breach of her duty to maintain a safe speed or distance behind the plaintiff s vehicle under the conditions existing at the time of the accident. The Court does not find that summary judgment is premature. Defendants ' have not shown that discovery may lead to relevant evidence or that facts necessary to oppose See CPLR the motion were in the exclusive knowledge and control of the plaintiff. to have ~3212(t); Hil v. Ackall, 71 AD3d 829. The defendant driver herself is presumed sufficient knowledge of any facts mitigating her own negligence. Maynard v. Vandyke, 69 AD3d 515. In opposing summary judgment , the defendants had a duty to " lay bare their proof." Avant v. Cepin, 74 AD3d 533. " The belief that additional discovery might reveal something helpful to their case does not provide a basis pursuant to CPLR ~3212 Morrisaint v. Raemar (t) for postponing a determination of summary judgment." Corp. , 271 AD2d 586. The Court does find, however, that defendants are entitled to discovery on the issue of damages. Based upon the foregoing, it is [* 4] summar judgment ORDERED, that plaintiffs motion , to the extent that it seeks 3212 on the issue of liabilty only, is granted. It is furter pursuant to CPLR ORDERED , that plaintiffs motion, to the extent that it seeks an immediate trial 3212(c) is denied. The parties shall proceed with discovery on the issue of damages , and shall appear for the regularly scheduled compliance conference on July 24 , 2012 at 9:30 a. pursuant to CPLR Dated: INTERED JUN 04 2012 PIl CW"'Y eGtMT ClERK' OFFl8I

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