Stewart v Perez

[*1] Stewart v Perez 2012 NY Slip Op 51101(U) Decided on June 14, 2012 Supreme Court, Queens County Siegal, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 14, 2012
Supreme Court, Queens County

Godfrey Stewart and Jacqueline Stewart, Plaintiffs,

against

Alberto Perez, Sue Jun-Om, Jong Hoon Om, Defendants.



26064/06

Bernice Daun Siegal, J.

The following papers numbered 1 to 57 read on this motion for an order pursuant to CPLR §3212 by third-party defendant Henry Gomez allowing a motion for summary judgment in his favor on the issue of liability to be brought after the court-imposed deadline and on this motion grantingsummary judgment in his favor on the issue of liability; on this cross-motion by defendant Alberto Perez denying summary judgment in his favor on the issue of liability; on this motion by third-party defendants, Bibi A. Bacchus and Nahiff Bacchus, to renew motion for summary judgment, dated June 16, 2009, grantingsummary judgment in their favor on the issue of liability; on this cross-motion by third party defendant Vera M. Phillips to renew motion for summary judgment, dated June 19, 2009, granting summary judgment in her favor on the issue of liability; and on this motion by third-party defendants, Dupont Bayas and Evaeya Cajou-Bayas, to renew motion for summary judgment, dated June 18, 2009, granting summary judgment in their favor on the issue of liability.

PAPERS [*2]

NUMBERED

Notice of Motion (Seq 7) - Affidavits-Exhibits.....................1 - 4

Affirmation in Opposition.....................................................5 - 9

Reply.....................................................................................10 - 12

Notice of Cross-Motion (Seq 7)- Affidavits-Exhibits............13 - 17

Affirmation in Opposition.....................................................18 - 21

Reply.....................................................................................22 - 24

Notice of Motion (Seq 8) - Affidavits-Exhibits.....................25 - 29

Affirmation in Opposition.....................................................30 - 33

Reply.....................................................................................34 - 36

Notice of Motion (Seq 9) - Affidavits-Exhibits.....................37 - 40

Affirmation in Opposition.....................................................41 - 43

Reply.....................................................................................44 - 45

Notice of Cross-Motion (Seq 9)- Affidavits-Exhibits............46 - 50

Affirmation in Opposition.....................................................51 -54

Reply.....................................................................................55 - 57

Upon the foregoing papers, it is hereby ordered that the motion is resolved as follows:

Third-party defendant Henry Gomez ("Gomez") moves for an order pursuant to CPLR §3212 permitting a motion for summary judgment based on the showing of "good cause" for delay in filing motion for summary judgment even after the court-imposed deadline of June 19, 2009; and granting summary judgment to third-party defendant Gomez on all third party plaintiff's cause of action against him and on all cross-claims and counter-claims.

Defendant Alberto Perez cross-moves for an order pursuant to CPLR §3212 granting summary judgment on the issue of liability for plaintiffs' injuries and dismissing the claims and cross claims against him. Third-party defendants, Bibi A. Bacchus and Nahiff Bacchus, cross-moves for an order pursuant to CPLR §2221 to renew motion for summary judgment, dated June 16, 2009, on the issue of liability for plaintiff's injuries dismissing the claims and cross claims against them. Third-party defendant Vera M. Phillips cross-moves for an order pursuant to CPLR §2221 to renew motion for summary judgment, dated June 19, 2009, on the issue of liability for plaintiff's injuries dismissing the claims and cross claims against her. Third-party defendants, Dupont Bayas and Evaeya Cajou-Bayas, move for an order pursuant to CPLR §2221 to renew its motion for summary judgment, dated June 18, 2009, on the issue of liability for plaintiff's injuries dismissing the claims and cross claims against them.

Facts

This is an action arising from a seven car accident occurring on October 25, 2005. The accident occurred on a wet roadway, specifically, on I-295 southbound branch of the Cross-Bronx [*3]Expressway (leading to the Throngs Neck Bridge). The alleged accident occurred in two different chains of accidents resulting in three discrete impacts. The vehicle of third-party defendant Bibi A. Bacchus ("Bacchus") was stopped in the left lane due to an non-party vehicle stopping in front of her car. Bacchus's vehicle then was rear-ended first by the vehicle of third-party defendant Dupont Bayas ("Bayas"). According to Bacchus, Bayas then moved his vehicle to the center lane and stopped parallel to Bacchus's vehicle to ask her if she was okay and he told her that his brakes had failed. According to Bacchus, she put her car in park and put her hazards on. Next, the vehicle of third-party defendant Vera M. Phillips ("Phillips") rear-ended Bacchus's vehicle. Plaintiff stopped in the left lane to avoid the collision. Defendant Alberto Perez ("Perez") had also slowed down. Plaintiff's vehicle was then rear-ended by Perez's vehicle, which had allegedly been rear-ended by the vehicle of defendant Sue Jun-Om ("Jun-Om"). All vehicles except Bacchus's vehicle had pulled over to the right shoulder. Bacchus's vehicle was left unoccupied in the left lane; she stated at her deposition that her vehicle could not be driven. About five or ten minutes later, Bacchus's vehicle was rear-ended a third time by third-party defendant Gomez. According to Perez's deposition testimony and the police report, Gomez's vehicle caused Bacchus's vehicle to spin and to swerve across three lanes striking Perez's vehicle on the left side.

Plaintiff Godfrey Stewart complains of limitation of motion in his cervical and lumbar spine, while plaintiff Jacqueline Stewart asserts a claim for loss of consortium.

Procedural History

A consent order, dated February 8, 2009, established that the time to file motions for summary judgment was extended to 60 days from the date that the last deposition was completed, but no later than June 19, 2009. The deposition of third-party defendant Gomez was held on April 11, 2009. However, the transcript was not received until July 1, 2009 by Gomez from plaintiff's counsel, which provided notice of service of Gomez's transcript on June 30, 2009. The original cross-motion brought by third-party defendant Gomez was served on July 2, 2009 and was technically untimely. However, the third-party defendant Gomez argues that "good cause" was shown because the movant had to await deposition transcripts relevant to the cross-motion. In addition, Gomez argues that good cause did not need to be shown because this motion was a cross-motion to motions timely made before this Court.

In addition, the following motions for summary judgment were brought as well. Third-party defendants Bacchus brought a motion for summary judgment, dated June 16, 2009, to dismiss the complaint in their favor on the issue of liability. Third party defendant Vera M. Phillips brought a motion for summary judgment, dated June 19, 2009, to dismiss the complaint in her favor on the issue of liability. Third-party defendants Bayas brought a motion for summary judgment, dated June 18, 2009, to dismiss the complaint in their favor on the issue of liability.

The motions brought by third-party defendants Gomez, Bacchus, Phillips, and Bayas and the part of the cross-motion brought by defendant Perez seeking summary judgment on the issue of liability were denied as moot because the Court had granted summary judgment to the main defendants on no-fault threshold grounds in an order dated January 26, 2010. The only issue addressed in the Court's decision was the serious injury threshold requirement pursuant to Insurance Law § 5102(d). Appellate Division reversed the dismissal by its order, dated November 15, 2011, and held that defendants, Om and Perez, failed to meet their prima facie burdens of showing that [*4]plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d). Third-party defendants had not been parties to the appeal and were not served with the briefs or the Appellate Division order.

Third-party defendant Gomez alleges that his counsel's first notice that the case was revived occurred when his counsel contacted plaintiff's counsel on January 9, 2012 as to a conference in the TSP Part set for January 10, 2012. Three days after being given notice that the case was revived, the third-party defendant Gomez served its motion for summary judgment on January 12, 2012.

Contentions

Third-party defendant Gomez contends in his motion that it has shown "good cause" as to why its initial cross-motion was filed after the court-imposed deadline of June 19, 2009. Third-party defendant Gomez contends that because Gomez was not involved in plaintiffs' accident, Gomez is not liable to plaintiffs for the injuries allegedly sustained.

Defendant Alberto Perez contends in his cross-motion that summary judgment should be granted because he is not liable for plaintiff's alleged injuries and there is no issue of fact that Perez's vehicle rear-ended plaintiff's vehicle as a result of Jun-Om's vehicle rear-ending Perez's vehicle. In addition, Defendant Perez contends that his original cross-motion was filed timely in response to a timely brought motion by third-party defendants Bacchus.

Third-party defendants Bacchus contend in their motion to renew that their original motion for summary judgment was timely being it was served on June 18, 2009, which was before the June 19, 2009 court-imposed deadline. In addition, third-party defendants Bacchus contend that summary judgment should be granted dismissing the complaint and any and all cross-claims against them on the basis that no material issues of fact exist as to their liability with their showing that their vehicle was hit in the rear by Bayas's vehicle while their vehicle was lawfully stopped in traffic.

Third-party defendant Phillips contends in her cross-motion that her original motion for summary judgment was timely as it was served on June 19, 2009, which was before the June 19, 2009 court-imposed deadline. In addition, third-party defendant Phillips contends that summary judgment should be granted dismissing the third-party complaint and all cross-claims against Phillips on the grounds that there are no triable issues of fact on the issue of her liability because her actions were not the proximate cause of the accident involving plaintiffs' vehicle.

Third-party defendants Bayas contend in their motion to renew that their original motion for summary judgment was timely as it was served on June 18, 2009, which was before the June 19, 2009 court-imposed deadline. In addition, third-party defendants Bayas contend that summary judgment should be granted dismissing the third-party complaint and all cross-claims against them on the basis that there are no material issues of fact regarding their liability because they demonstrated that their vehicle was not involved in plaintiff's accident.

Third-party defendant's (Gomez) motion for allowing the motion for summary judgment to be filed even after the court-imposed deadline of June 19, 2009 is granted as more fully set forth below. The original motions brought by third-party defendants (Bacchus, Phillips, and Bayas) were made timely and are allowed to be heard, and the original cross-motion brought by defendant (Perez) is allowed to be heard based on the showing of good cause.

The motions for summary judgment brought by third-party defendants (Bacchus, Bayas, and Gomez) and the cross motion for summary judgment brought by third-party defendant (Phillips) on [*5]the issue of liability is granted as more fully set forth below. Defendant's (Perez) cross-motion for summary judgment deniedas more fully set forth below.

Discussion

Whether Third-Party Defendant Gomez Has Shown a Good Cause for Allowing an Untimely Motion for Summary Judgment

Third-party defendant Gomez argues that "good cause" for the delay in filing his initial cross-motion for summary judgment was shown because Gomez, the movant for summary judgment, did not receive the deposition transcript relevant to making such cross-motion until after the court-imposed date for making motions for summary judgment. In opposition, defendants/third-party plaintiffs, Jun-Om and Jong-Hoom Om, assert that Gomez's original cross-motion was untimely as the cross-motion was served beyond the court-imposed date and should be denied based upon Brill v. City of New York, 2 NY3d 648 [2004], being, at the time, an expedited transcript could have been ordered knowing the deadline for summary judgment motions. In reply to this opposition, Gomez asserts: 1. that an expedited transcript could not have been ordered by him because Gomez's counsel was not the ones ordering the transcript; 2. that Gomez's counsel expected that the transcript would have been served within the usual three or four weeks providing ample time to file a timely motion; 3. that after two months had gone by and Gomez's counsel had not received the transcript, Gomez's counsel applied for a deadline extension, but was advised to take this matter up at the TSP appearance dated on June 22, 2009; and 4. that Gomez's counsel was advised at this appearance to make the motion for summary judgment as soon as the transcript arrived.

CPLR §3212(a) provides, in pertinent part:

[a]ny party may move for summary judgment in any action, after issue has been joined; provided however, that the court may set a date after which no such motion may be made, such date being no earlier than thirty days after the filing of the note of issue. If no such date is set by the court, such motion shall be made no later than one hundred twenty days after the filing of the note of issue, except with leave of court on good cause shown.

CPLR §3212(a) was amended by the Legislature to prevent the "eleventh-hour summary judgment motions," to provide courts with "considerable discretion to fix a deadline for filing summary judgment motions, after joinder of issue, . . . except with leave of court on good cause shown." (Brill, 2 NY3d at 651.) The Court of Appeals of New York held that "a showing of good cause for delay in making the motion" requires "a satisfactory explanation for the untimeliness," instead of allowing "meritorious, nonprejudicial filings, however tardy." (Id. at 652.) The Court of Appeals of New York's interpretation of showing of good cause was based on "the language of the statute," which states that "only the movant can show good case," and on the purpose of terminating the eleventh-hour summary judgment motions. (Id.) "The Legislature clearly specified summary judgment motions should be timely made, or good cause shown." (Miceli v. State Farm Mutual Automobile Insurance Co., 3 NY3d 725, 726 [2004].) Thus, CPLR §3212(a) "requires a showing of a satisfactory explanation for the delay in filing the motion"; and, "[i]n the absence of such a showing, a late summary judgment motion may not be considered, even if it appears to have merit [*6]and the delay has not prejudiced the adversary." (Dettmann v. Page, 18 AD3d 422, 422 [2d Dept 2005], citing Brill, 2 NY3d at 652.)

The Second Department has held that "good cause" for delay in filing a motion for summary judgment when "there was significant discovery outstanding at the time the note of issue was filed" and the movant "had yet to receive any discovery by the deadline by which motions for summary judgment were permitted." (Parker v. LIJMC-Satellite Dialysis Facility, 92 AD3d 740, 741—42 [2d Dept 2012]; see also Grochowski v. Ben Rubins, LLC, 81 AD3d 589, 591 [2d Dept 2011]; Richardson v. JAL Diversified Management, 73 AD3d 1012, 1013 [2d Dept 2010]; Kung v. Zheng, 73 AD3d 862, 863 [2d Dept 2010]; McArdle v. 123 Jackpot, Inc., 51 AD3d 742, 745 [2d Dept 2008]; Sclafani v. Washington Mutual, 36 AD3d 682, 682 [2d Dept 2007]; Smith v. Nameth, 25 AD3d 599, 600 [2d Dept 2006].) The Second Department has also held that a movant has not established good cause for an untimely motion or cross-motion for summary judgment when the discovery that is outstanding is not relevant to that motion. (See Van Dyke v. Skanska USA Civil Northeast Inc., 83 AD3d 1049, 1049—50 [2d Dept 2011]; Anderson v. Kantares, 51 AD3d 954, 954 [2d Dept 2008]; Tower Insurance Co. of New York v. Razy Associates, 37 AD3d 702, 703 [2d Dep't 2007].) Furthermore, " [g]ood cause' is shown where a party is made to wait for deposition transcripts in order to make its motion." (Rodriguez v. Sequoia Property, 24 Misc 3d 822, 824 [Sup. Ct. Queens County 2009].)

Here, the Court in its consent order, dated February 8, 2009, imposed a deadline of June 19, 2009 for when motions for summary judgment could be filed. The deposition of third-party defendant Gomez was held on April 11, 2009. After two months, Gomez's counsel still had yet to receive this transcript. Gomez's counsel then applied for a deadline extension, but was advised to take this matter up at the TSP appearance, which was to be held on June 22, 2009; this TSP appearance was scheduled after the court-imposed deadline of June 19, 2009. At the TSP appearance, Gomez's counsel was advised to make the motion for summary judgment as soon as the transcript arrived. Gomez's counsel received the transcript on July 1, 2009. Consequently, Gomez's original cross-motion was served on July 2, 2009, a day after receiving the transcript.

Gomez's transcript was the transcript in question. Gomez's vehicle had rear-ended Bacchus's car allegedly causing Bacchus's car to hit Perez's car. Gomez's transcript is relevant to Gomez's cross-motion because his testimony describes the sequence of events and his involvement in the seven car accident. Furthermore, Gomez's transcript was necessary for the writing of Gomez's cross-motion for summary judgment. Moreover, Gomez's counsel was instructed at the TSP appearance on June 22, 2009 to file its cross motion for summary judgment as soon as the transcript was received. Gomez's counsel received that transcript on July 1, 2009 and Gomez's initial cross-motion for summary judgment was filed July 2, 2009, the next day. Gomez's counsel followed the Court's instructions as to when to file his motion. Therefore, Gomez has shown "good cause" for his delay in his initial filing of his cross-motion for summary judgment.

Additionally, "an untimely motion or cross motion for summary judgment may be considered by the court where . . . a timely motion for summary judgment was made on nearly identical grounds." (Grande v. Peteroy, 39 AD3d 590, 591—92 [2d Dept 2007]; see also Perfito v. Einhorn, 62 AD3d 846, 847 [2d Dept 2009]; Bressingham v. Jamaica Hospital Medical Center, 17 AD3d 496, 497 [2d Dept 2005].)"In such circumstances, the issues raised by the untimely motion or cross motion are already properly before the court and thus, the nearly identical nature of the grounds may [*7]provide the requisite good cause . . . to review the untimely motion on cross motion on the merits." (Grande, 39 AD3d at 592.) Here, the cross-motion brought by third-party defendant Gomez was similar to those of the other third-party defendants on the issue of liability. The issues of liability and of whose vehicles were or were not involved in the impact that allegedly injured plaintiff were raised by third-party defendants Bacchus and Bayas in their motions for summary judgment. Furthermore, these motions for summary judgment on the issue of liability were all made timely. Thus, Gomez has ground for good cause.

Due to the fact the Appellate Division reversed the Supreme Court's grant of summary judgment to the main defendants on no-fault threshold grounds, this case was revived on the issue of liability. However, third-party defendant Gomez alleges that his first notice that the case was revived occurred when his counsel contacted plaintiff's counsel on January 9, 2012 as to a conference in the TSP Part set for January 10, 2012. Gomez had not been a party to the appeal and had not been served with the briefs or the Appellate Division order. Three days after Gomez's counsel received notice that this case was revived, the third-party defendant Gomez served its motion for summary judgment on January 12, 2012. This motion for summary judgment is similar to his original cross-motion for summary judgment. Gomez's counsel served this motion for summary judgment in a timely fashion as shown above.

Therefore, the third-party defendant Gomez established "good cause" in its delay of his initial cross-motion for summary judgment and, after receiving notice that this case had been revived, Gomez's counsel moved for the motion for summary judgment that was similar to his initial cross-motion for summary judgment. Accordingly, the court will consider Gomez's motion for summary judgment.

Whether the Original Motions Brought by Third-Party Defendants, Bacchus and Bayas, and Cross-Motions Brought by Defendant Perez and Third-Party Defendant Phillips Were Timely

Third-party defendants Bacchus served their original motion for summary judgment on June 18, 2009, which was within the court-imposed June 19, 2009 deadline. The opposition raised by defendants Om that the original motion for summary judgment brought by third-party defendants Bacchus was untimely is incorrect. In fact, the original motion for summary judgment served by third-party defendants Bacchus was timely.

Defendant Perez brought his original cross-motion for summary judgment in response to the motion for summary judgment brought by third-party defendants Bacchus, which was served on June 18, 2009. The cross-motion brought by Perez dealt with both the issue of his liability and the issue of whether plaintiff's injury was not serious within the meaning of Insurance Law § 5102(d). The opposition raised by defendants Om that the original motion for summary judgment brought by third-party defendants Bacchus was untimely is incorrect. "[A]n untimely motion or cross motion for summary judgment may be considered by the court where . . . a timely motion for summary judgment was made on nearly identical grounds." (Grande, 39 AD3d at 591—92.)"In such circumstances, the issues raised by the untimely motion or cross motion are already properly before the court and thus, the nearly identical nature of the grounds may provide the requisite good cause . . . to review the untimely motion on cross motion on the merits." (Id. at 592.) Here, the motions brought by the third-[*8]party defendants Bacchus and Bayas, on the issue of liability, raised the issues of whose vehicles were or were not involved in the alleged accidents. In addition, the motion for summary judgment brought by Om raised the issue that plaintiff failed to meet the serious injury threshold requirement of Insurance Law § 5102(d). All these motions were made timely. Perez raised both issues of serious injury threshold requirement and liability in his cross-motion. Due to the fact that the issues raised in Perez's motion are nearly identical to the issues raised in the other timely motions, Perez has a ground for good cause to allow his cross-motion for summary judgment to be heard.

Third-party defendant Phillips served her original cross-motion for summary judgment on June 19, 2009, which is within the court-imposed June 19, 2009 deadline. The opposition raised by defendants Om that the original cross-motion for summary judgment brought by third-party defendant Phillips was untimely is incorrect. In fact, the original cross-motion for summary judgment served by third-party defendant Phillips was timely.

Third-party defendants Bayas served their original motion for summary judgment on June 18, 2009, which is within the court-imposed June 19, 2009 deadline. The opposition raised by defendants Om that the original motion for summary judgment brought by third-party defendants Bayas was untimely is incorrect. In fact, the original motion for summary judgment served by third-party defendants Bayas was timely.

For the reasons set forth above, the court will consider third-party defendants Bayas and Bacchus' motion for summary judgment and third-party defendant Phillips' cross-motion for summary judgment.

Issue of Liability

It is well established that in order to obtain summary judgment, a movant must "establish his cause of action or defense 'sufficiently to warrant the court as a matter of law in directing judgment' in his favor, and he must do so by tender of evidentiary proof in admissible form." (Zuckerman v. City of New York, 49 NY2d 557, 562 [1980], quoting CPLR §3212(b); see also Rebecchi v. Whitmore, 172 AD2d 600, 601 [2d Dept 1991].) Conversely, in order to defeat a motion for summary judgment, the opposing party "must . . . produce sufficient evidentiary proof in admissible form to raise a triable issue of fact warranting a trial." (Chamberlain v. Suffolk County Labor Department, 221 AD2d 580, 580 [2d Dept 1995].) The court has the "burden to determine whether a triable issue of fact exists." (Id., see also Rebecchi, 172 AD2d at 601.) Summary judgment must be granted, as a matter of law, when no triable issues of fact exist. (See Grand Union Co. v. Klein, 220 AD2d 483, 483 [2d Dept 1995].)

Whether Defendant Perez Is Liable to Plaintiff's Alleged Injury

Perez's vehicle was rear-ended by Om's vehicle, which allegedly caused Perez's vehicle to rear-end plaintiff's vehicle. Perez argues that the uncontroverted evidence demonstrates that as a result of an impact between Om's vehicle and Perez's vehicle, Perez's vehicle was pushed into the rear of plaintiff's vehicle and that there is no question of fact with respect to Perez's involvement in this accident. In opposition, third-party plaintiffs/defendants Om assert that because questions of fact exist as to what specifically happened in the multi-vehicle collision, summary judgment cannot be awarded. [*9]

"It is well settled that a rear-end collision into a stopped vehicle creates a prima facie case of negligence on the part of the offending vehicle and imposes a duty of explanation of that operator"; and "[t]he operator of the offending vehicle is in the best position to explain whether the collision was due to a reasonable, non-negligent cause." (Cerda v. Parsley, 273 AD2d 339, 339—40 [2d Dept 2000]; see also Vavoulis v. Adler, 43 AD3d 1154, 1155 [2d Dept 2007]; Levine v. Taylor, 268 AD2d 566, 566 [2d Dept 2000].) "If the operator of the offending vehicle cannot come forward with evidence to rebut the inference of negligence, the drivers of the lead vehicles may properly be awarded judgment as a matter of law." (Vecchio v. Hildebrand, 304 AD2d 749, 750 [2d Dept 2003].)

Here, Perez testified at his deposition that prior to the time of the accident, he was driving his vehicle behind plaintiff's vehicle; that when plaintiff's vehicle slowed to a stop, he gradually slowed his vehicle to a stop; that Perez's vehicle was rear-ended by Om's vehicle; and that as a result of the impact from being rear-ended, Perez's vehicle pushed forward rear-ending plaintiff's vehicle. Defendant Sue Jun-Om, the offending party, testified the that she was driving behind Perez's vehicle; that when she applied her brakes to slow down, her vehicle skidded on the wet road; that as a result, Om's vehicle rear-ended Perez's vehicle; and that Perez's vehicle had been stopped at the time of the impact. The police report states that plaintiff's vehicle stopped in left lane to avoid collision when plaintiff's vehicle was struck in the rear by Perez's vehicle, which had been struck in the rear by Om's vehicle. Defendant Om, the offending party, is presumed to have been negligent in hitting the Perez's stopped car; while Perez was not negligent because his vehicle had come to a complete stop prior to Om's vehicle rear-ending Perez's car. This creates a prima facie case of liability with respect to Om, not Perez.

Defendant Om, the offending party, offers evidence to rebut the inference of negligence. Defendant Om testified that she was not sure as to whether Perez's vehicle moved forward rear-ending plaintiff's vehicle as a result of her rear-ending him. This raises a question of material fact as to whether Om's vehicle rear-ending caused Perez's vehicle to rear-end plaintiff's vehicle. Furthermore, this raises a question of material fact as to whether Perez's vehicle had already rear-ended plaintiff's vehicle before Om's vehicle rear-ended Perez's vehicle. "[I]n a multiple-vehicle accident, where . . . there is a question of fact as to the sequence of the collisions, it cannot be said as a matter of law that the negligence of the operator of the last vehicle in the line of vehicles was a proximate cause of the injuries to an occupant of the lead vehicle." (Vavoulis, 43 AD3d at 1156.)Summary judgment cannot be granted, here, since a material issue of fact exists as to the sequence of the collision, whether Perez's vehicle rear-ended plaintiff's vehicle prior to Om's vehicle rear-ending Perez's vehicle or whether Perez's vehicle rear-ended plaintiff's vehicle as a result of Om's vehicle rear-ending Perez's vehicle. Therefore, Perez's motion for summary judgment is denied.

Whether Third-Party Defendants, Bacchus, Bayas, Phillips, and Gomez, Are Liable to Plaintiff's Alleged Injury

The alleged accident leading to plaintiff's alleged injuries occurred when defendant Perez's vehicle rear-ended plaintiff's vehicle after defendants Om's vehicle rear-ended Perez's vehicle. Before and after this accident, other vehicles were hit. Bacchus's vehicle had been rear-ended by vehicles of both third-party defendants, Bayas and Phillips, before the accident involving plaintiff's vehicle. Bacchus's vehicle had also been rear-ended by third-party defendant Gomez's vehicle after the [*10]accident involving plaintiff's vehicle. The accident between Bacchus's and Gomez's vehicle occurred when all party's vehicles, except for Bacchus's vehicle, were parked on the right shoulder. In addition, this accident caused Bacchus's vehicle to swerve across three lanes and strike Perez's vehicle on the left side.

The third-party defendants, Bayas, Phillips, and Gomez, in their motions for summary judgment assert that because they were not involved with the impact involving plaintiff's vehicle and that their negligence for the accident they were involved in was not the proximate cause of the accident involving plaintiff's vehicle, they are not liable to plaintiff for plaintiff's alleged injuries. Third-party defendants Bacchus assert that there is no dispute of facts that Bacchus' vehicle was stopped when Bayas's vehicle rear-ended her vehicle and never made any contact with plaintiff's vehicle and that third-party defendants Bacchus are not liable for plaintiff's alleged injuries. In opposition, third-party plaintiffs/defendants Om assert that because questions of fact exist as to what specifically happened in the multi-vehicle collision, summary judgment cannot be awarded.

The Court of Appeals of New York has defined "proximate cause" to ". . . mean [a] cause that directly produces an event and without which the event would not have occurred'." (Giuffrida v. Citibank Corp., 100 NY2d 72, 80 [2003], quoting Black's Law Dictionary 213 [7th ed 1999].) "Although, in general, the issue of proximate cause is for the jury, liability may not be imposed upon a party who merely furnishes the condition or occasion for the occurrence of the event but is not one of its causes." (citations omitted) (Ely v. Pierce, 302 AD2d 489, 489 [2d Dept 2003]; see also Diaz v. Green, 47 AD3d 612 [2d Dept 2008]; Remy v. City of New York, 36 AD3d 602, 602 [2d Dept 2007].) In Ely v. Pierce, the Second Department held that a vehicle made inoperable as a result of a first accident "merely furnished the condition for the [second] accident," and was not the proximate cause of the second accident." (Ely, 302 AD2d at 489.)

Here, Bibi Bacchus testified at her deposition that her car was completely stopped due to stopped traffic in front of her when Bayas's vehicle had rear-ended her vehicle; that her vehicle was not pushed forward as a result of the impact; that after Bayas's vehicle had hit her vehicle, she put her vehicle in park and put her hazards on; that after Bayas's vehicle hit her vehicle, he moved his vehicle to the center lane and stopped parallel to her vehicle to ask her if she was okay and he told her that his brakes had failed; that Bacchus's vehicle was then rear-ended a second time by the vehicle of third-party defendant Phillips while Bayas's vehicle was still next to her vehicle; that as a result of the second impact, Bacchus's vehicle moved forward one foot; that Bibi Bacchus exited her vehicle, went to the shoulder, and left her vehicle unoccupied in the left lane because her vehicle could not be driven; and that about five or ten minutes later, Bacchus's vehicle was rear-ended a third time by the vehicle of third-party defendant Gomez. The police report states the following: 1. Bayas's vehicle struck Bacchus's vehicle in the rear; 2. after Bayas's vehicle hit Bacchus's vehicle, Bayas moved his vehicle to the center lane; 3. Phillips's vehicle then hit Bacchus's vehicle in the rear; 4. plaintiff's vehicle was rear-ended by Perez's vehicle, which was rear-ended by Om's car; 5. all vehicles except Bacchus's vehicle pulled over to the shoulder; and 6. Bacchus's vehicle was struck in the rear by Gomez's car causing Bacchus's vehicle to swerve across three lanes and strike Perez's vehicle on the left side.

It is uncontested that the accident involving Bacchus's and Bayas's vehicles and the accident involving Bacchus's and Phillips's vehicles occurred prior to the accident involving plaintiff's vehicle. Consequently, plaintiff's vehicle had slowed down to a stop due to Bacchus's immobilized [*11]vehicle. Afterwards, the accident involving plaintiff's vehicle occurred. It is also uncontested that Bacchus's, Bayas's, and Phillips's vehicles were not involved in the accident involving plaintiff's vehicle. In essence, these two accidents with Bacchus's vehicle furnished the condition of Bacchus's immobilized vehicle; however, these accidents were not the proximate cause of plaintiff's accident and injuries.

It is also uncontested that Gomez's vehicle rear-ended Bacchus's inoperable vehicle when Bayas's, Phillips's, plaintiff's, Perez's, and Om's vehicles were parked on the right shoulder; and the accident involving Gomez's and Bacchus's vehicle occurred after the accident involving the plaintiff's vehicle. It is also uncontested that Gomez's vehicle was not involved in the accident involving plaintiff's vehicle. Applying the above definition of "proximate cause" here, Gomez's vehicle rear-ending Bacchus's vehicle directly produced the accident occurring between Gomez's and Bacchus's vehicles and would not have occurred but for Gomez's actions. (See Giuffrida, 100 NY2d at 80, quoting Black Law's Dictionary 213.) However, Gomez was not the proximate cause of the accident involving plaintiff's vehicle because Gomez's and Bacchus's accident did not cause or contribute to plaintiff's accident.

Therefore, third-party defendants, Bacchus, Bayas, Phillips, and Gomez, are not liable to plaintiff's injuries. The motions for summary judgment brought by Bacchus, Bayas, and Gomez, are granted and the cross motion for summary judgment brought by Phillips is granted.

ConclusionFor the reasons set forth above, the motion for summary judgment brought by third-party defendant Gomez in sequence number 7 on the issue of liability is granted and the cross-motion, in sequence number 7, for summary judgment brought by defendant Perez on the issue of liability is denied; Third-party defendants' Bibi Bacchus and Haniff Bacchus' motion for summary judgment, under sequence number 8, on the issue of liability is granted; and third-party defendants Dupont Bayas and Evaeya Cajou-Bayas' motion for summary judgment, under sequence number 9, on the issue of liability is granted; and the cross motion, under sequence number 9, for summary judgment brought by third-party defendant Phillips on the issue of her liability is granted.

This constitutes the decision and order of this court.

Dated: June 14 , 2012 ___________________________

Bernice D. Siegal, J. S. C.