Rodriguez v Febus

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Rodriguez v Febus 2017 NY Slip Op 33443(U) November 15, 2017 Supreme Court, Westchester County Docket Number: Index No. 68605/16 Judge: David F. Everett Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. FILED: WESTCHESTER COUNTY CLERK 11/15/2017 10:48 AM NYSCEF DOC. NO. 21 INDEX NO. 68605/2016 RECEIVED NYSCEF: 11/15/2017 I 1 commence the the 30-day,statutory 30-day, statutory time time period appeals as ofright of right under under CPLR CPLR 5513 5513 (a), you you are advised advised to serve serve To commence period for appeals copy of of this order, order, with.notice with'notice of of entry, entry, upon .. upon all parties parties .. a copy I SUPREME COURT COURT'OF THE STATE YORK SUPREME OF THE STATE OF NEW NEW YORK COUNTY WESTCHESTER . . COUNTY OF WESTCHESTER ______________________________________________________ -----~-----J( --------------------------------------~-------------------- . ----X MELISSA RODRIGUEZ, RODRIGUEZ, MELISSA (( Plaintiff, Plaintiff, Index No. 68605/16 Index No. 68605/16 Motion Sequence Sequence No. Motion No. 001 Decision and and Order Order Decision -against- . -againstAIDAFEBUS, AIDA FEBUS, Defendant. Defendant. ________________________~ ~-------------J( ------------------------ ----------------------------------------X EVERETT,J. EVERETT,J. following papers were read read on this this motion: motion: The following papers were Notice of Motion/Affirmation Mation/Affirmation in Supp/ExhibitsA-D Supp/ExhibitsA-D Notice of Affirmation in Opp/F;xhibit Opp/F;xhibit A . Affirmation Reply Affinilation AffirIilation ·. Reply tort action, action, plaintiff MelissaRodriguez (Rodriguez) moves moves for an order order granting granting In this tort plaintiff Melissa Rodriguez (Rodriguez) summary judgment against defendant defendant Aida Aida Febus Febus (Febus) (Febus) on the issue issue of of liability. liability. Defendant Defendant summary judgment against opposes the motion. motion. Upon Upon the foregoing foregoing papers, motion is granted. granted. opposes papers, the motion following facts are taken taken from the motion motion papers, affidavit, and the record, record, The following papers, pleadings, pleadings, affidavit, undisputed unless unless otherwise otherwise indicated. indicated. . and are undisputed Rodriguez commenced commenced this action action by filing filing a summons summons and complaint complaint in the Office Office of of the Rodriguez Westchester C~unty C~unty Clerk Clerk on December December 8, 2016, 2016, to recover recover damages damages for the physical injuries she Westchester physical injuries allegedly sustained sustained as a result result of of an automobile automobile accident accident that that occurred occurred on December December 22, 2015. 2015. allegedly According to Rodriguez, Rod-riguez, the accident accident occurred occurred when, when, while while stopped stopped at a stop stop sign sign at the the According intersection of of Post Post Street Street and Riverdale Riverdale Avenue Avenue in Yonkers, Yonkers, New York, her her vehicle vehicle was struck struck New York, intersection [* 1] 1 of 5 FILED: WESTCHESTER COUNTY CLERK 11/15/2017 10:48 AM NYSCEF DOC. NO. 21 INDEX NO. 68605/2016 RECEIVED NYSCEF: 11/15/2017 ,I ,I from behind behind by a.motor a'motor veh~cle 9wned ~wnedand and operated operated by Febus, Febus, causing causing her her to sustain sustain physical physical II injuries. The complaint complaint sounds sounds in negligence: negligence.' _ injuries. Issue was was joined service of of defendant's defendant's answer answer with with affirmative affirmative defenses defenses o~ on or about about by service_ Issue joined by March March 9, 2017. 2017. Without Without coinpleting cofnpleting discovery, discovery, Rodriguez Rodriguez served served the the instant instant motion motion for summary judgment on the summary judgment the issue issue of of liability. liability. . : As the judgment, plaintiff the proponent proponent of of the the motion motion for summary summary judgment, plaintiff must must tender tender evidentiary evidentiary proof in admissible admissible form form sufficient sufficient to ~arrant ~arrant th~ the court court to to direct direct judgment her fav~r favor as a proof jud~inent in her matter oflaw(Zuckerman New .York, 49 NY2d557, NY2d_557, 562 [1980]; _To matter oflaw (Zuckerman v City City of a/New [1980]; CPLR CPLR 3212.[b]). 3212[bD. To . . . make this showing, showing, plaintiff plaintiff submits submits copies copies .of ,of the pleadings, pleadings, the the certified certified police police report report relative relative to make accident, and her her sworn sworn affid~vit affidavit attesting attesting to· to'the the facts underlying underlying the the complaint. complaint. In her her the accident, affidavit, :35 p.m., affidavit, Rodriguez.avers, Rodriguez avers, in relevant relevant part, part, that, that, at approxi~ately approximately I1:35 p.m., on on December December 22, 2015, while while stopped stopped at at the the stop stop sign sign on Post Post Road Road]1 and Riverdale Riverdale A Avenue approximately 60 venue for approximately 2015, seconds, her vehicle vehicle was was struck struck in the the rear rear by a 2004 2004 Hyundai, Hyundai, \\'hich which she came came to learn learn was was seconds, owned owned and operated operated by Febus Febus (Rodriguez (Rodriguez aft): aff) Rodriguez Rodriguez avers avers that that she felt the the impact impact to the the . . . . rear of of her her vehicle, vehicle, and reports reports that that her her brake brake liglits lights and·an and'all of of the_ the signals signals on.the on the vehicle vehicle she was operating at the time time of of the the accident, accident, were were in good good operating operating condition condition (id.). operating It is well settled settled that., that, with with respect respect to collisions collisions between between moving moving vehicles, vehicles, or between between a moving moving vehicle vehicle and a stopped stopped vehicle, vehicle, "[w]hen "[w]hen the the d~i\Ter driver of of an automobile automobile approaches approaches arJ.other another automobile automobile from the the rear, rear, he or she is b_ound bound to maintain maintain a reasonably reasonably safe safe rate rate of of speed speed and control over over his or her. her vehicle, vehicle, and to exercise·reasonable exercise'reasonable care care to avoid avoid colliding colliding with with the the other other control . , . ' Although the the motion motion papers papers interchange interchange "Post "Post Street" Street" and "Post "Post Road," Road," itis itis undisputed undisputed Although that the accident accident occurred occurred at the the intersection intersection of of Post Post Street Street and Riverdale Riverdale Avenue Avenue in Yonkers Yonkers. . that 1] . , " '' ·2 '2 [* 2] 2 of 5 , , I FILED: WESTCHESTER COUNTY CLERK 11/15/2017 10:48 AM NYSCEF DOC. NO. 21 INDEX NO. 68605/2016 RECEIVED NYSCEF: 11/15/2017 vehicle" (Taingv (TaingvDrewery, "vehicle stops vehicle" Drewery, 100 AD3d AD3d 740, 741 [2d Dept Dept 2012]). 2012]). Furthermore, Furthermore, "vehicle stops. which are foreseeabl~ foreseeable under under the prevailing prevailing traffic traffic conditions, conditions, even even if if sudden sudden and frequent, frequent, must must which driver who who follows, follows, si~ce since he or she is under under a duty duty to maintain maintain a safe be anticipated anticipated by the driver distance between his!or his:or her car and the car ahead" ahead" (Robayo v Aghaabdul, 109 AD3d AD3d 892, 893 [2d distance between (Robayo vAghaabdul, Dept 2013] [internal quotation marks marks and citation citation omitted]). omitted]). , Dept [internal quotation settled law that that"[ rear-end collision collision with with a stopped stopped or stopping stopping vehicle vehicle It is also well settled "[ a] rear-end creates prima facie case negligence with with respect respect to the operator operator of of the moving moving vehicle vehicle and creates a prima case of of negligence imposes a duty on t~at that operator rebut the inferertceof inference of negligence negligence by providing providing a non-negligent non-negligent imposes operator to rebut explanation Kouridakis, 57AD3d 57 AD3d 706, 70~ 706 [2d Dept Dept 2008] 2008] [internal explanation for the collision" collision" (Chiok (Chiok v Kouridakis, [internal quotation marks and citations omitted]). Finally, Finally, Vehicle Vehicle and Traffic Traffic Law Law §S 1129 provides, provides, at quotation marks citations omitted]). subsection that "[t]he of a motor motor vehicle vehicle shall not foliow follow another another vehicle vehicle more more closely closely subsection (a), that "[t]he driver driver of than is reasonable prudent, having having due regard regard for the sp~ed speed of of such such vehicles vehicles and the the traffic traffic than reasonable and prudent, upon and the condition highway." upon condition of of the highway." Here, Rodriguez has satisfied satisfied her prima prima facie burden burden of of establishing establishing negligence negligence on the' the Here, Rodri~uez paii of of Febus Febus as a ~atter matter of law on the issue issue of of liability, liability, and the burden burden shifts shifts to Febus Febus to submit, submit, part oflaw in admissible non negligent negligent explanation explanation either either for the collision, collision, or for her her failure failure to to admissible form, a nori maintain a reasonably under the prevailing prevailing traffic traffic conditions conditions between between her vehicle vehicle ·. maintain reasonably safe distance distance under and the vehicle of her (Robayo Aghaabdul, 109 AD3d AD3d at 893; Taing Taing v Drewery; Drev.jery, 100 , vehicle in front of (Robayo v Aghaabdul, AD3d AD3d at 741). opposition, Febus Febus submits submits her her sworn sworn affidavitin affidavitin which which she explains explains that that it was was raining raining In opposition, Ji . . December 22, 22,2015, and that that she she was was slowing her vehicle vehicle to a stop stop a safe safe distance distance behind hehind on December 2015, and slowing her , , ' plaintiff s vehicle, vehicle, but but that that the the :ffo:µt fro~t of of he~ vehicle vehicle struck struck the the rear rear of of plaintiff's plaintiff s vehicle vehicle when when her her plaintiffs 3. 3 [* 3] 3 of 5 FILED: WESTCHESTER COUNTY CLERK 11/15/2017 10:48 AM NYSCEF DOC. NO. 21 INDEX NO. 68605/2016 RECEIVED NYSCEF: 11/15/2017 ·' es in a normal wheels skidded_ skidded on the the wet wet pavement when she applied applied her-brak her brakes normal steady steady manner. manner. paveme nt when wheels developed that developed emergency situation Febus argues argues t~at that the'acci the 'accident occurred because of the emergency situation that because ,ofthe dent occurred Febus roadway. slippery roadway. because of the aI1dslippery wet and the wet because of cy doctrine New Yorki York; the common common.law emergency doctrine:: -law emergen In New ,I •• unexpec ted with a sudden "recognizes that when actor i~ is faced with sudden and and unexpected when an actor izes ihat "recogn tion or delibera , circumstance which leaves leaves little little or no time time for thought thought, deliberation or tance which circums actor the that d disturbe so bly consideration, causes actor reasonably disturbed that the actor ;reasona be to actor the causes or consideratiop., , conduct of courses ve alternati g must make ~ speedy decision without weighing alternative courses of conduct, must make <i speedy decision without weighin prudent and reasonable and prudent in taken -are actor may may not if the actions taken are reasonable in the actions negligent if be negligent not be the actor · the The cy. emergen the created not the emergency context, provided actor has not created the emergency. The actor the the emergen~y context, provided cy situation doctrine recogniz recognizes that a person confronted with such such an emergen emergency situation ted with person confron es that doctrine as conduct or nt judgme of "cannot reasonably be held to same accuracy of judgment conduct as one one accuracy same the held "cannot reasonably the that appears later appears that the actor who has full opportu opportunity actor though it later even though reflect, even nity to reflect, has haq fµll who · " made the wl"ong decision" . decision w:fong made haq (Lifson vv City City of o/Syracuse, 492,497 [2011] [inte:r:na [internall quotatio quotationn- marks marks and and citations citations 497 [2011] NY3d 492, Syracuse, 17 NY3d (Lifton omitted] omitted]).). _ . Here, Febus's Febus's failure failure to leave leave a reasonab reasonably distance between between her her motor motor vehicle vehicle and and ly safe distance Here, rain, -. to rain, due to ways due wetro.ad ns, _namely, the vehicle vehicle in in front front ?fher of her ~der under the prevaili prevailing conditions, namely, wet roadways ng conditio the a _the wet tion for th~ does not constitutete a non explanation the accid~nt accident,, nor nor do the wet weather weather negligent explana non negligent not constitu does cy doctrine -law emergen circumstances evoke relief relief from from liability liability under under the common common-law emergency doctrine (id.;_ (id.; tances evoke circums Robayo vv AD3d a~ Kouridakis, 57 AD3d Zuckerman City of of New York, 499.NY2d. NY2d.atat 562; Chiokv Chiok v Kouridakis, at 706; 706; Robayo New York,"-4 Zuckerman vv City i j ! Aghaabdul, AD3d at at 893). 893). 09 AD3d Aghaabdul, I109 I -I I judgme nt on plaintiff is_entitle Accordingly, itappearing Court that is entitledd to judgment on liability liability,, that plaintiff ring to the Court Accordingly, it.appea ! I ! it is is liability; and·it a~ to liability; i~ grant~d ORDERED'that motion for summary Judgment granted as and it is dg~ent is mary}u ion for.sum the_mot ORDER ED'that the further further 4 [* 4] 4 of 5 FILED: WESTCHESTER COUNTY CLERK 11/15/2017 10:48 AM NYSCEF DOC. NO. 21 INDEX NO. 68605/2016 RECEIVED NYSCEF: 11/15/2017 ORDERED ORDERED that that the parties parties are directed directed to appear appear with with counsel counsel at the Preliminary Preliminary Conference Conference Part, Part, courtroom courtroom 811 of of the Westchester Westchester Courity County Courthouse, Courthouse, 111 Dr. Martin Martin Luther Luther lr. Blvd., Blvd., White White Plains, Plains, New New York, York, on Monday, Monday, Dece~ber Dece~ber 18, 18,2017, 2017, to schedule schedule discovery discovery King, Jr. i damages. as to damages. i This This constitutes constitutes the decision decision and order order of of the Court. Court. ii]] Dated: White New York White Plains, Plains, New York November 15, 2017 November 2017 ENTER: ~J~f<21L-- HON. HaN. DAVID DAVID F. EVERETT, EVERETT, A.J.S.C. A.l.S.C. Hampton Hampton & Sontag, Sontag, LLC LLC rd rd Street !!Ii 147 E. 233 Street Bronx,. NY· l 04 70 Bronx" NY.1 0470 Gialleonardo Gialleonardo & Rayhill Rayhill 565 Taxter Taxter Road Road Elmsford, NY 10523 Elmsford, NY '~ [* 5] 5 5 of 5

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