Asaduzzaman v Savitsky
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Asaduzzaman v Savitsky
2015 NY Slip Op 50748(U)
Decided on May 20, 2015
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This opinion is uncorrected and will not be published in the printed Official Reports.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 May 20, 2015
Supreme Court, Queens County
Mohammad Asaduzzaman and PARVIN RAHAM, Plaintiff,
against
Victor Savitsky and J & B RENTALS, INC., Defendants.
19716/2013
Robert J. McDonald, J.
Plaintiff commenced this action by way of a summons and complaint filed on October 24, 2013 to recover damages for personal injuries allegedly sustained by him in the subject motor vehicle accident. Issue was joined by service of a copy of the defendants' answer dated December 6, 2013. Plaintiff filed a Note of Issue on March 4, 2015. The matter was discontinued by plaintiff Parvin Raham only pursuant to stipulation of the parties dated December 29, 2014.
By decision and order dated August 4, 2014, this court granted the motion by J & B Rentals, Inc., to dismiss the plaintiff's complaint against it based solely on vicarious liability. Defendant, J & B, the lessor of the vehicle, was found not to be liable for the negligence of the driver pursuant to the "Graves Amendment," under which a leasing/rental company vehicle owner cannot be held to be vicariously liable for the alleged negligent acts of the renter, its employees or agents. The New York Courts have held that the Graves Amendment preempts New York Vehicle and Traffic Law § 388.
Plaintiff now moves for an order pursuant to CPLR 3212(b), granting partial summary judgment on the issue of liability and setting this matter down for a trial on damages only.
In support of the motion, the plaintiff submits an affirmation from counsel, Michael Mutarelli, Esq., a copy of the pleadings; a copy of the police accident report; and copies of the transcripts of the examinations before trial of the plaintiff, Mohammad Asaduzzaman, and the defendant, Victor Savitsky; and an affidavit of facts from plaintiff, dated March 17, 2015.
The description portion of the police report prepared by the responding officer based upon the statements of the parties, states,
"At t/p/o while traveling westbound on the BQE at the Kosciuszko Bridge, the operator of veh No.2 (defendant) not paying attention/etc. collided into the rear of veh # 1(plaintiff) resulting in above damages"
Mr. Asaduzzaman, age 39, a taxi driver, testified at an examination before trial on December 9, 2014. He stated that he was involved in an automobile accident on June 6, 2013, while traveling on the westbound lanes of the Brooklyn-Queens [*3]Expressway near the Kosciuszko Bridge. At the time he was operating a yellow taxi cab and was driving his passenger from LaGuardia Airport to a location in Brooklyn. At the time of the accident he was driving in stop and go traffic. His vehicle was stopped for one or two seconds when it was hit in the rear with a heavy impact by the white van operated by the defendant. He testified that prior to the impact he was looking in his rear view mirror and observed the vehicle coming towards his vehicle. When the police arrived he told the officer that he was stopped in traffic when the van impacted his vehicle from the rear.
Defendant, Victor Savitsky, age 77, was deposed on May 18, 2014. He testified that on the date of the accident he was driving a small van he rented to help his daughter move. He was driving to Manhattan from Queens. He was proceeding on the Brooklyn-Queens Expressway and had passed over the Kosciuszko Bridge when the accident occurred. He stated that the traffic was very heavy at the time and he moved into the left lane. He was moving at 5 miles per hour because of the heavy traffic. He stated that he observed the taxi in front of him moving from lane to lane. He stated he moved to the left lane to avoid the taxi because the taxi was in the right lane. He then moved to themiddle lane and the taxi moved there as well. He then moved to the left lane and the taxi moved to the left lane. He stated that once they were both in the left lane there was two or three cars lengths separating them. After approximately ten seconds the taxi slowed down and defendant struck the rear of the taxi with the front of his vehicle. He stated that he applied his brake to try and stop but he could not avoid striking the plaintiff's vehicle. He does not recall whether the taxi was moving or stopped when it was struck.
Plaintiff's counsel contends that the accident was caused solely by the negligence of the defendant in that defendant's vehicle was traveling too closely in violation of VTL § 1129 and the defendant driver failed to safely stop his vehicle prior to rear-ending the plaintiff's vehicle. Counsel asserts that the defendant's version of how the accident occurred constitutes an admission of negligence in that he told the responding police officer that he was not paying attention. Further, plaintiff asserts that the defendant testified that he observed the taxi cab prior to the accident and that the taxi was two or three cars in front of his. Counsel claims that based on the stop and go traffic conditions, the defendant had more than enough time to slow down and avoid the collision. Counsel asserts that based on the congested traffic conditions the defendant should have reasonably anticipated the need to pay close attention to the changing traffic conditions. Plaintiff contends, therefore, that [*4]the he is entitled to partial summary judgment as to liability because the defendant driver was not paying attention, was traveling at an excessive rate of speed and was following too closely in violation of VTL § 1129. Plaintiff argues that as a result of his actions the defendant was solely responsible for causing the accident while the plaintiff driver was free from culpable conduct.
In opposition, the defendant submits a copy of the transcript of the defendant's deposition testimony along with an errata sheet containing 21 corrections to his testimony. The defendant now states that he was traveling at 15 miles per hour and that he saw the other driver prior to the accident changing lanes in front of his vehicle. He testified that there was only 25 feet of space between the front of his vehicle and the back of the plaintiff's vehicle when plaintiff changed lanes in front of him. Defendant asserts that the plaintiff's taxi suddenly slowed down in speed, causing the impact. Defendant also asserts that the police report is inadmissable because it is not certified and the deposition transcripts are inadmissible because they were not served on defendant's counsel more than 60 days prior to the motion. Lastly, counsel asserts that the defendant has offered a non-negligent explanation for the accident sufficient to raise a triable issue of fact. Counsel asserts that the defendant testified that the plaintiff was operating his vehicle in an erratic manner directly prior to the accident. He claims that the testimony shows that the defendant had tried to avoid the taxi who was changing lanes irresponsibly. He states that evidence shows that there was insufficient space between the front of the defendant's vehicle and the back of the plaintiffs's vehicle when the plaintiff crossed directly in front of him when changing lanes.
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 [*5]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 Delgado v Bang, 120 AD3d 608 [2d Dept. 2014]; Kertesz v Jason Transp. Corp., 102 AD3d 658 [2d Dept. 2013]; Ramos v TC Paratransit, 96 AD3d 924 [2d Dept. 2012]; Pollard v Independent Beauty & Barber Supply Co., 94 AD3d 845 [2d Dept. 2012]; Klopchin v Masri, 45 AD3d 737 [2d Dept. 2007]).
Here, plaintiff testified that his vehicle was stopped in heavy traffic on the Brooklyn-Queens Expressway when it was suddenly struck from behind by defendant's motor vehicle. Thus, the plaintiff satisfied his prima facie burden of establishing entitlement to judgment as a matter of law on the issue of liability (see Robayo v Aghaabdul, 109 AD3d 892 [2d Dept. 2013]; Sayyed v Murray, 109 AD3d 464 [2d Dept. 2013]; Prosen v Mabella, 107 AD3d 870 [2d Dept. 2013]; Xian Hong Pan v Buglione, 101 AD3d 706 [2d Dept. 2012]).
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 that negligence contributed to the happening of the accident (see Goemans v County of Suffolk,57 AD3d 478 [2d Dept. 2007]).
Although defendant maintains that the accident was the result of plaintiff driving in an erratic manner and changing lanes in front of him, this does not explain defendant's failure to maintain a safe distance from the vehicle in front of him (see Dicturel v Dukureh,71 AD3d 558 [1st Dept. 2010]; Shirman v Lawal,69 AD3d 838 [2d Dept. 2010]; Lampkin v Chan,68 AD3d 727 [2d Dept. 2009]; Zdenek v Safety Consultants, Inc.,63 AD3d 918 [2d Dept. 2009]). The defendant's contention that the plaintiff's vehicle slowed down suddenly in front of his vehicle is not sufficient to provide a non-negligent explanation for the rear-end collision (see Hearn v. Manzolillo, 103 AD3d 689 [2d Dept. 2013]; Plummer v Nourddine, 82 AD3d 1069 [2d Dept. 2011][the mere assertion that the respondents' vehicle came to a sudden stop while traveling in heavy traffic was insufficient to raise a triable issue of fact]; Staton v Ilic, 69 AD3d 606 [2d Dept. 2010]; Ramirez v Konstanzer, 61 AD3d 837 [2d Dept. 2009]). The defendant's testimony indicates that the defendant kept the plaintiff's vehicle under observation and that the vehicles were 25 feet apart and there were ten seconds which passed after the plaintiff changed lanes during which time the defendant could have made efforts to slow his vehicle to avoid the impact. The courts have held that vehicle stops which are foreseeable under [*6]the prevailing traffic conditions, even if sudden and frequent, must be anticipated by the driver who follows, since he or she is under a duty to maintain a safe distance between his or her car and the car ahead" (Robayo v Aghaabdul, 2013 NY Slip Op 5889[ 2d Dept. 2013] quoting Shamah v Richmond County Ambulance Serv., 279 AD2d 564[2d Dept. 2001]).
In addition, defendant's version of how the accident occurred as told to the police officer, constitutes an admission of negligence in that he told the officer that he struck plaintiff's vehicle when he was not paying attention. The police officer who prepared the accident report was acting within the scope of his duty in recording the defendant driver's statement and the statement is admissible as an admission of a party (see Jackson v Trust, 103 AD3d 851 [2d Dept. 2013]; Scott v Kass, 48 AD3d 785 [2d Dept. 2008]; Kemenyash v McGoey, 306 AD2d 516 [2d Dept. 2003]). The defendant did not contradict the statement contained in the police report.
The contention of defendant, raised in opposition to the motion, that the deposition transcripts are not in evidentiary form is without merit. The transcripts are certified by the court reporter and the defendant did not raise any challenges to their accuracy. Thus, the transcript qualifies as admissible evidence for purposes of the motion for summary judgment (see Rodriguez v Ryder Truck, Inc., 91 AD3d 935 [2d Dept. 2012]; Zalot v Zieba, 81 AD3d 935 [2d Dept. 2011]). The deposition transcript of the plaintiff is admissible under CPLR 3116(a) since that transcript was submitted by the party deponent himself it was adopted as accurate by the plaintiff (see Rodriguez v Ryder Truck, Inc., 91 AD3d 935 [2d Dept. 2012]; Ashif v Won Ok Lee, 57 AD3d 700 [2d Dept. 2008]).
As the evidence in the record demonstrates that the defendant failed to provide a non-negligent explanation for the collision and as no triable issues of fact have been put forth as to whether plaintiff may have borne comparative fault for the causation of the accident, and based on the foregoing, it is hereby,
ORDERED, that the plaintiff's motion is granted, and the plaintiff, Mohammad Asaduzzaman, shall have partial summary judgment on the issue of liability against the defendant, Victor Savitsky, and the Clerk of Court is authorized to enter judgment accordingly; and it is further,
ORDERED, that this action shall be placed on the trial calendar of the Court for a trial on serious injury and damages.
Dated: May 20, 2015
Decided on May 20, 2015
Supreme Court, Queens County
Mohammad Asaduzzaman and PARVIN RAHAM, Plaintiff,
against
Victor Savitsky and J & B RENTALS, INC., Defendants.
19716/2013
Robert J. McDonald, J.
On June 6, 2013, plaintiff, Mohammad Asaduzzaman, was involved in a two vehicle accident with a vehicle operated by the defendant Victor Savitsky, and owned by defendant, J & B Rentals, Inc. At the time of the accident, Mr. Savitsky was operating a van that he leased from J & B Rentals, Inc. The accident occurred on the westbound Brooklyn-Queens Expressway at or near the Kosciuszko Bridge, Exit 34, Kings County, New York. [*2]The plaintiff Mohammad Asaduzzaman was allegedly injured as a result of the impact.
Plaintiff commenced this action by way of a summons and complaint filed on October 24, 2013 to recover damages for personal injuries allegedly sustained by him in the subject motor vehicle accident. Issue was joined by service of a copy of the defendants' answer dated December 6, 2013. Plaintiff filed a Note of Issue on March 4, 2015. The matter was discontinued by plaintiff Parvin Raham only pursuant to stipulation of the parties dated December 29, 2014.
By decision and order dated August 4, 2014, this court granted the motion by J & B Rentals, Inc., to dismiss the plaintiff's complaint against it based solely on vicarious liability. Defendant, J & B, the lessor of the vehicle, was found not to be liable for the negligence of the driver pursuant to the "Graves Amendment," under which a leasing/rental company vehicle owner cannot be held to be vicariously liable for the alleged negligent acts of the renter, its employees or agents. The New York Courts have held that the Graves Amendment preempts New York Vehicle and Traffic Law § 388.
Plaintiff now moves for an order pursuant to CPLR 3212(b), granting partial summary judgment on the issue of liability and setting this matter down for a trial on damages only.
In support of the motion, the plaintiff submits an affirmation from counsel, Michael Mutarelli, Esq., a copy of the pleadings; a copy of the police accident report; and copies of the transcripts of the examinations before trial of the plaintiff, Mohammad Asaduzzaman, and the defendant, Victor Savitsky; and an affidavit of facts from plaintiff, dated March 17, 2015.
The description portion of the police report prepared by the responding officer based upon the statements of the parties, states,
"At t/p/o while traveling westbound on the BQE at the Kosciuszko Bridge, the operator of veh No.2 (defendant) not paying attention/etc. collided into the rear of veh # 1(plaintiff) resulting in above damages"
Mr. Asaduzzaman, age 39, a taxi driver, testified at an examination before trial on December 9, 2014. He stated that he was involved in an automobile accident on June 6, 2013, while traveling on the westbound lanes of the Brooklyn-Queens [*3]Expressway near the Kosciuszko Bridge. At the time he was operating a yellow taxi cab and was driving his passenger from LaGuardia Airport to a location in Brooklyn. At the time of the accident he was driving in stop and go traffic. His vehicle was stopped for one or two seconds when it was hit in the rear with a heavy impact by the white van operated by the defendant. He testified that prior to the impact he was looking in his rear view mirror and observed the vehicle coming towards his vehicle. When the police arrived he told the officer that he was stopped in traffic when the van impacted his vehicle from the rear.
Defendant, Victor Savitsky, age 77, was deposed on May 18, 2014. He testified that on the date of the accident he was driving a small van he rented to help his daughter move. He was driving to Manhattan from Queens. He was proceeding on the Brooklyn-Queens Expressway and had passed over the Kosciuszko Bridge when the accident occurred. He stated that the traffic was very heavy at the time and he moved into the left lane. He was moving at 5 miles per hour because of the heavy traffic. He stated that he observed the taxi in front of him moving from lane to lane. He stated he moved to the left lane to avoid the taxi because the taxi was in the right lane. He then moved to themiddle lane and the taxi moved there as well. He then moved to the left lane and the taxi moved to the left lane. He stated that once they were both in the left lane there was two or three cars lengths separating them. After approximately ten seconds the taxi slowed down and defendant struck the rear of the taxi with the front of his vehicle. He stated that he applied his brake to try and stop but he could not avoid striking the plaintiff's vehicle. He does not recall whether the taxi was moving or stopped when it was struck.
Plaintiff's counsel contends that the accident was caused solely by the negligence of the defendant in that defendant's vehicle was traveling too closely in violation of VTL § 1129 and the defendant driver failed to safely stop his vehicle prior to rear-ending the plaintiff's vehicle. Counsel asserts that the defendant's version of how the accident occurred constitutes an admission of negligence in that he told the responding police officer that he was not paying attention. Further, plaintiff asserts that the defendant testified that he observed the taxi cab prior to the accident and that the taxi was two or three cars in front of his. Counsel claims that based on the stop and go traffic conditions, the defendant had more than enough time to slow down and avoid the collision. Counsel asserts that based on the congested traffic conditions the defendant should have reasonably anticipated the need to pay close attention to the changing traffic conditions. Plaintiff contends, therefore, that [*4]the he is entitled to partial summary judgment as to liability because the defendant driver was not paying attention, was traveling at an excessive rate of speed and was following too closely in violation of VTL § 1129. Plaintiff argues that as a result of his actions the defendant was solely responsible for causing the accident while the plaintiff driver was free from culpable conduct.
In opposition, the defendant submits a copy of the transcript of the defendant's deposition testimony along with an errata sheet containing 21 corrections to his testimony. The defendant now states that he was traveling at 15 miles per hour and that he saw the other driver prior to the accident changing lanes in front of his vehicle. He testified that there was only 25 feet of space between the front of his vehicle and the back of the plaintiff's vehicle when plaintiff changed lanes in front of him. Defendant asserts that the plaintiff's taxi suddenly slowed down in speed, causing the impact. Defendant also asserts that the police report is inadmissable because it is not certified and the deposition transcripts are inadmissible because they were not served on defendant's counsel more than 60 days prior to the motion. Lastly, counsel asserts that the defendant has offered a non-negligent explanation for the accident sufficient to raise a triable issue of fact. Counsel asserts that the defendant testified that the plaintiff was operating his vehicle in an erratic manner directly prior to the accident. He claims that the testimony shows that the defendant had tried to avoid the taxi who was changing lanes irresponsibly. He states that evidence shows that there was insufficient space between the front of the defendant's vehicle and the back of the plaintiffs's vehicle when the plaintiff crossed directly in front of him when changing lanes.
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 [*5]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 Delgado v Bang, 120 AD3d 608 [2d Dept. 2014]; Kertesz v Jason Transp. Corp., 102 AD3d 658 [2d Dept. 2013]; Ramos v TC Paratransit, 96 AD3d 924 [2d Dept. 2012]; Pollard v Independent Beauty & Barber Supply Co., 94 AD3d 845 [2d Dept. 2012]; Klopchin v Masri, 45 AD3d 737 [2d Dept. 2007]).
Here, plaintiff testified that his vehicle was stopped in heavy traffic on the Brooklyn-Queens Expressway when it was suddenly struck from behind by defendant's motor vehicle. Thus, the plaintiff satisfied his prima facie burden of establishing entitlement to judgment as a matter of law on the issue of liability (see Robayo v Aghaabdul, 109 AD3d 892 [2d Dept. 2013]; Sayyed v Murray, 109 AD3d 464 [2d Dept. 2013]; Prosen v Mabella, 107 AD3d 870 [2d Dept. 2013]; Xian Hong Pan v Buglione, 101 AD3d 706 [2d Dept. 2012]).
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 that negligence contributed to the happening of the accident (see Goemans v County of Suffolk,57 AD3d 478 [2d Dept. 2007]).
Although defendant maintains that the accident was the result of plaintiff driving in an erratic manner and changing lanes in front of him, this does not explain defendant's failure to maintain a safe distance from the vehicle in front of him (see Dicturel v Dukureh,71 AD3d 558 [1st Dept. 2010]; Shirman v Lawal,69 AD3d 838 [2d Dept. 2010]; Lampkin v Chan,68 AD3d 727 [2d Dept. 2009]; Zdenek v Safety Consultants, Inc.,63 AD3d 918 [2d Dept. 2009]). The defendant's contention that the plaintiff's vehicle slowed down suddenly in front of his vehicle is not sufficient to provide a non-negligent explanation for the rear-end collision (see Hearn v. Manzolillo, 103 AD3d 689 [2d Dept. 2013]; Plummer v Nourddine, 82 AD3d 1069 [2d Dept. 2011][the mere assertion that the respondents' vehicle came to a sudden stop while traveling in heavy traffic was insufficient to raise a triable issue of fact]; Staton v Ilic, 69 AD3d 606 [2d Dept. 2010]; Ramirez v Konstanzer, 61 AD3d 837 [2d Dept. 2009]). The defendant's testimony indicates that the defendant kept the plaintiff's vehicle under observation and that the vehicles were 25 feet apart and there were ten seconds which passed after the plaintiff changed lanes during which time the defendant could have made efforts to slow his vehicle to avoid the impact. The courts have held that vehicle stops which are foreseeable under [*6]the prevailing traffic conditions, even if sudden and frequent, must be anticipated by the driver who follows, since he or she is under a duty to maintain a safe distance between his or her car and the car ahead" (Robayo v Aghaabdul, 2013 NY Slip Op 5889[ 2d Dept. 2013] quoting Shamah v Richmond County Ambulance Serv., 279 AD2d 564[2d Dept. 2001]).
In addition, defendant's version of how the accident occurred as told to the police officer, constitutes an admission of negligence in that he told the officer that he struck plaintiff's vehicle when he was not paying attention. The police officer who prepared the accident report was acting within the scope of his duty in recording the defendant driver's statement and the statement is admissible as an admission of a party (see Jackson v Trust, 103 AD3d 851 [2d Dept. 2013]; Scott v Kass, 48 AD3d 785 [2d Dept. 2008]; Kemenyash v McGoey, 306 AD2d 516 [2d Dept. 2003]). The defendant did not contradict the statement contained in the police report.
The contention of defendant, raised in opposition to the motion, that the deposition transcripts are not in evidentiary form is without merit. The transcripts are certified by the court reporter and the defendant did not raise any challenges to their accuracy. Thus, the transcript qualifies as admissible evidence for purposes of the motion for summary judgment (see Rodriguez v Ryder Truck, Inc., 91 AD3d 935 [2d Dept. 2012]; Zalot v Zieba, 81 AD3d 935 [2d Dept. 2011]). The deposition transcript of the plaintiff is admissible under CPLR 3116(a) since that transcript was submitted by the party deponent himself it was adopted as accurate by the plaintiff (see Rodriguez v Ryder Truck, Inc., 91 AD3d 935 [2d Dept. 2012]; Ashif v Won Ok Lee, 57 AD3d 700 [2d Dept. 2008]).
As the evidence in the record demonstrates that the defendant failed to provide a non-negligent explanation for the collision and as no triable issues of fact have been put forth as to whether plaintiff may have borne comparative fault for the causation of the accident, and based on the foregoing, it is hereby,
ORDERED, that the plaintiff's motion is granted, and the plaintiff, Mohammad Asaduzzaman, shall have partial summary judgment on the issue of liability against the defendant, Victor Savitsky, and the Clerk of Court is authorized to enter judgment accordingly; and it is further,
ORDERED, that this action shall be placed on the trial calendar of the Court for a trial on serious injury and damages.
Dated: May 20, 2015
Long Island City, NY
______________________________
ROBERT J. McDONALD
J.S.C.
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