Wysocka v Neglia

[*1] Wysocka v Neglia 2012 NY Slip Op 51421(U) Decided on July 30, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 30, 2012
Supreme Court, Queens County

Alicia Wysocka, Plaintiff,

against

Charles Neglia, Nouveau Elevator Industries, Inc. and Edward Rosado, Defendants.



1645/11

Bernice Daun Siegal, J.

The following papers numbered 1 to 12 read on this motion for an order pursuant to CPLR 3212 granting summary judgment to the defendant, Charles Neglia and Nouveau Elevator Industries, Inc., and pursuant to CPLR 3211 dismissing plaintiff's Complaint and all cross claims.

PAPERS

NUMBERED

Notice of Motion - Affidavits-Exhibits..................................1 - 4

Notice of Cross-Motion..........................................................5 - 9

Affirmation In Opposition......................................................10 - 12

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

Defendants Charles Neglia ("Neglia") and Nouveau Elevator Industries, Inc. ("Nouveau") move for an order pursuant to CPLR §3212 granting summary judgment and pursuant to CPLR §3211 dismissing plaintiff's complaint and all cross claims. Plaintiff Alicia Wysocka ("Wysocka") cross-moves for summary judgment pursuant to CPLR §3212 against one or both defendants on the issue of liability. Wysocka also moves for an order finding that the plaintiff was free from any comparative negligence.

Facts

This action arises out of a three vehicle chain reaction accident that occurred on December 4, 2009, on Greenpoint Avenue near the intersection with Bradley Avenue in Queens, New York. Wysocka was operating the lead vehicle, followed by a vehicle operated by Defendant Neglia and [*2]owned by Nouveau. The trailing vehicle, which was operated by co-defendant Edward Rosado ("Rosado"), rear-ended the Neglia vehicle. The Neglia vehicle also rear-ended the Wysocka vehicle.

Wysocka testified at her deposition that she was at a complete stop prior to the impact. Wysocka also acknowledged that she had a seat belt on and that she felt her body move forward and backward twice upon impact. Neglia testified at his deposition that he was at a complete stop behind the plaintiff's car before being rear-ended. Rosado testified that when his vehicle hit the Neglia vehicle, Neglia's car did not move.

Discussion

It is well established that summary judgment should be granted when there is no doubt as to the absence of triable issues. (See Rotuba Extruders, Inc. v. Ceppos, 46 NY2d 223, 231 [1978].) As such, the function of the court on the instant motion is issue finding and not issue determination. (See S.J. Capelin Associates, Inc. v. Globe Mfg. Corp., 34 NY2d 338, 341 [1974].) The party moving for summary judgment must tender admissible evidentiary proof that eliminates any material issues of fact from the case. (Zuckerman v. City of New York, 49 NY2d 557, 562 [1980].) If the movant succeeds, the burden shifts to the party opposing the motion, who must show issues of material facts sufficient to require a trial. (Id.)

As a general rule, "a rear-end collision establishes a prima facie case of negligence on the part of the operator of the rear[most] vehicle, thereby imposing a duty on that operator to rebut the inference of negligence by providing a non-negligent explanation for the collision." (Kastritsios v. Marcello, 84 AD3d 1174, 1174-75 [2nd Dept. 2011]; Plummer v. Nourddine, 82 AD3d 1069, 1069-70 [2nd Dept. 2011]; Ortiz v. Hub Truck Rental Corp., 82 AD3d 725, 726 [2nd Dept. 2011].) If the driver of the offending vehicle cannot provide a non-negligent excuse to rebut the inference of negligence, then the driver of the stationary lead vehicle may be awarded summary judgment on the issue of liability. (Staton v. Ilic, 69 AD3d 606 [2nd Dept. 2010]; and see Lundy v. Llatin, 51 AD3d 877 [2nd Dept. 2008]; Leal v. Wolff, 224 AD2d 392 [2nd Dept. 1996].) Any conclusory allegations brought up by the defendant do not raise a triable issue of fact and are insufficient to rebut the inference of negligence against him. (Benyarko v. Avis Rent A Car Sys. Inc., 162 AD2d 572, 573 [2nd Dept. 1990]; Young v. City of New York, 113 AD2d 833, 833-34 [2nd Dept. 1985]; see also O'Callaghan v. Flitter, 112 AD2d 1030 [2nd Dept. 1985].) If there is any conflict at all in the evidence then the plaintiff will not be entitled to summary judgment. (See Young v. City of New York, 113 AD2d 833 [2nd Dept. 1985]; Andre v. Pomeroy, 35 NY2d 361, 365 [1974].)

Here, the moving defendants properly met their prima facie burden through the submission of deposition testimony of Neglia and Rosado. Neglia and Rosado testified that the plaintiff's vehicle was completely stopped before being rear-ended. (Rosado transcript at 22 and Neglia transcript at 26, 27.) Furthermore, Neglia testified that there was about two and a half feet of space between his vehicle and Wysocka's vehicle prior to being rear-ended by Rosado. (Neglia transcript at 13.) It is well established, that summary judgment should be granted in a rear-end collision to a car that was lawfully stopped. (See Kastritsios v. Marcello, 84 AD3d 1174 [2nd Dept. 2011]; Plummer v. Nourddine, 82 AD3d 1069, 1070 [2nd Dept. 2011].) Neglia and Nouveau presented evidence that was sufficient to meet their prima facie burden by showing that Neglia's vehicle was lawfully stopped prior to the collision. (See Viggiano v. Camara, 250 AD2d 836, 837 [2nd Dept. 1998]; Cofrancesco v. Murino, 225 AD2d 648 [2nd Dept. 1996].) [*3]

In opposition, Rosado contends that issues of fact exist in regards to the chronology of the rear-end collisions. Rosado cites the deposition testimony of Wysocka which states that the plaintiff felt her body move forward and backward two times during the accident indicating that there were two impacts to the vehicle. Additionally, Rosado testified that Neglia's vehicle did not move when it was rear-ended by Rosado's vehicle. When evidence suggests that multiple impacts occurred, a triable issue of fact exists as to which vehicle was the proximate cause of the plaintiff's injuries. (See Malak v. Wynder, 56 AD3d 622 [2nd Dept. 2008]; Hudson v. Cole, 264 AD2d 439 [2nd Dept. 1999]; Cofrancesco v. Murino, 225 AD2d 648 [2nd Dept. 1996].) Therefore, since Rosado presented evidence that suggests multiple impacts occurred, a triable question of fact exists and summary judgment for Neglia must be denied. (See Vavoulis v. Adler, 43 AD3d 1154 [2nd Dept. 2007]; Viggiano v. Camara, 250 AD2d 836 [2nd Dept. 1998]; Omrami v. Socrates, 227 AD2d 459 [2nd Dept. 1996].)

The plaintiff cross-moves for summary judgment on the issue of liability against one or both defendants and seeks to be found free of comparative negligence. The deposition testimony of Wysocka states that the plaintiff's vehicle was stopped prior to being rear-ended and that Wysocka's seatbelt was on when the accident occurred. Since it is undisputed that the plaintiff was stopped prior to being struck in the rear, this court finds that the plaintiff is free from any comparative negligence. (Ziminski v. Rosenthal, 276 AD2d 790 [2nd Dept 2000].). Nonetheless, since evidence suggests there may have been two impacts, a question of fact remains as to which of the defendants' was a proximate cause of Wysocka's injuries. (See Vavoulis v. Adler, 43 AD3d 1154, 1156 [2nd Dept. 2007]; Hudson v. Cole, 264 AD2d 439 [2nd Dept. 1999].)

Conclusion

Accordingly, the moving defendants motion for summary judgment is denied due to the existence of triable issues of fact. Plaintiff's cross-motion for summary judgment pursuant to CPLR § 3212 against one or both defendants is granted to the extent of holding plaintiff free of comparative negligence and is in all other respects denied.

Dated: July 30, 2012___________________________

Bernice D. Siegal, J. S. C.