Rodriguez v Titus Leasing Co.

[*1] Rodriguez v Titus Leasing Co. 2012 NY Slip Op 50194(U) Decided on February 7, 2012 Supreme Court, Queens County McDonald, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 7, 2012
Supreme Court, Queens County

Radha Rodriguez, Plaintiff,

against

Titus Leasing Company, U.S. LIMOUSINE SERVICE. LTD., USA FUNERALS, INC. and OSCAR A. PORTILLO, Defendants.



21313/2008

Robert J. McDonald, J.



The following papers numbered 1 to 11 were read on this motion by plaintiff, RADHA RODRIGUEZ, for an order pursuant to CPLR 3212(b) granting plaintiff partial summary judgment on the issue of liability:

Papers Numbered

Notice of Motion-Affidavits-Exhibits.......................1 - 5

Defendant's Affirmation in Opposition-Affidavits...........6 - 8

Plaintiffs' Reply Affirmation..............................9 - 11 _________________________________________________________________

In this negligence action, the plaintiff, Radha Rodriguez, seeks to recover damages for personal injuries she sustained as a result of a motor vehicle accident that occurred at approximately 6:10 p.m. on December 17, 2007, between the plaintiff's vehicle and the vehicle owned by Titus Leasing Company, leased by defendants USA Funerals Inc., and U.S. Limousine Service, Ltd. and operated by defendant Oscar A, Portillo. The accident took place on the westbound side of the Northern State Parkway near Exit 26, in the Town of North Hempstead, Nassau County, New York, [*2]when the plaintiff's vehicle which was stopped in traffic was struck in the rear by the funeral limousine operated by defendant Portillo.

The plaintiff commenced this action by service of a summons and complaint on August 25, 2008. Issue was joined by service of defendant's verified answer dated September 19, 2008 and amended verified answer dated October 15, 2008. Plaintiff now moves prior to depositions, for an order pursuant to CPLR 3212(b), granting summary judgment on the issue of liability against defendants USA FUNERALS, INC. and OSCAR A. PORTILLO and setting this matter down for assessment of damages.

In support of the motion, the plaintiff submits an affidavit from counsel, Souren A. Israelyan; a copy of the pleadings; a copy of plaintiff's verified bill of particulars; plaintiff's Notice to Admit dated October 13, 2008; defendants' Response to Notice to Admit dated October 23, 2008; and an affidavit from plaintiff, Radha Rodriguez.

In her affidavit dated November 12, 2011, plaintiff Radha Rodriguez states as follows:

"On Monday, December 17, 2007, at approximately 6:10 p.m., I was involved in a three-car motor vehicle accident on the Northern State Parkway near Exit 26, in the Town of North Hempstead, County of Nassau, State of New York. Prior to the accident I was driving my 2002 Saturn Vue westbound on the Northern State parkway. The traffic was moving very slowly and I brought my vehicle to a complete stop. There was another vehicle in front of me that was stopped as well. We were fully stopped, in a stationary position, for approximately 15-20 seconds when my vehicle was suddenly rear ended by a funeral limousine. The force of the rear-end impact propelled my vehicle forward striking the rear of the vehicle in front of me. I did not do anything wrong and have no fault in causing this collision."

The plaintiff contends that the defendant driver was negligent in the operation of his vehicle in striking the plaintiff's vehicle in the rear. Plaintiff's counsel contends that the accident was caused solely by the negligence of the defendant driver in that his vehicle was traveling too closely in violation of VTL § 1129 and that the driver failed to safely stop his vehicle prior to rear-ending the plaintiff's vehicle. Counsel contends that the evidence indicates that the plaintiff's vehicle was stopped in traffic on the Northern State Parkway when it was struck from behind by the defendant whose vehicle was following too closely in violation of Vehicle and Traffic Law § 1129(a). Counsel contends, therefore, that the plaintiff is entitled to [*3]partial summary judgment as to liability because the defendant driver was solely responsible for causing the accident while the plaintiff driver was free from culpable conduct.

In opposition to the motion, defendant's counsel, Gary Novins, Esq. submits an affidavit from the defendant dated January 19, 2012, which states in pertinent part:

"On December 17, 2007 I was the operator of a motor vehicle bearing New York State license plate number US5. Prior to the motor vehicle accident in question, I was traveling westbound on the Northern State Parkway in the right most lane. A Saturn Suburban with New York license plate No. DXD6645, suddenly and without warning veered into the right lane and cut me off. As a result of this Suburban cutting me off, I was caused to rear-end this vehicle."

Defendant's counsel contends that the defendant's affidavit presented a sufficient non-negligent explanation as to how and why the rear-end collision occurred and raises a question of fact as to the negligence of the defendant which cannot be resolved as a matter of law.

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[1980]).

"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 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 a stopped or stopping 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, plaintiff, Radha Rodriguez, stated that her vehicle was stopped in traffic on the Northern State Parkway when it was [*4]struck from behind by defendants' motor vehicle. Thus, the plaintiff satisfied her prima facie burden of establishing her entitlement to judgment as a matter of law on the issue of liability by demonstrating that her vehicle was stopped in traffic when it was struck in the rear by the vehicle operated by defendant, Oscar A. Portillo (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 [2000]).

Having made the requisite prima facie showing of entitlement to summary judgment, the burden then shifted to defendant to raise a triable issue of fact as to whether plaintiff was also negligent, and if so, whether her 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 defendant the benefit of every favorable inference that can be drawn from the evidence, this court finds that the defendant's affidavit stating that the plaintiff suddenly changed lanes in front of him, cutting him off and causing him to hit plaintiff's vehicle in the rear 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 rear-end 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][defendant's 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 defendant's 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]).

Therefore, this Court finds that the evidence in the record [*5]demonstrates that there are triable issues of fact as to whether plaintiff may have borne comparative fault for the causation of the accident (see Allen v Echols, 88 AD3d at 927 [2d Dept. 2011]; Gause v Martinez, 2012 NY Slip Op 178 [2d Dept. 2011][the issue of comparative fault is generally a question for the trier of fact]).

Accordingly, for the reasons set forth above, it is hereby

ORDERED, that the plaintiff's motion for partial summary judgment on the issue of liability is denied.

Dated: February 7, 2011

Long Island City, NY

_______________________

ROBERT J. MCDONALDJ.S.C.