Bonnette v McHenry

[*1] Bonnette v McHenry 2004 NY Slip Op 51195(U) Decided on July 7, 2004 Supreme Court, Kings County 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 7, 2004
Supreme Court, Kings County

Denise Bonnette, Plaintiff,

against

Thomas McHenry, et ano.,, Defendants.



2224/02

Diana A. Johnson, J.

Upon the foregoing papers, defendant Gary E. Thomas (Thomas) moves, pursuant to CPLR 3212, for summary judgment dismissing the complaint and all cross claims asserted against him.

On November 25, 2001, Denise Bonnette (Bonnette) allegedly sustained serious injuries when the vehicle owned and operated by Gary E. Thomas (Thomas) was hit in the rear by a vehicle owned and operated by Thomas McHenry (McHenry). Bonnette was a front seat passenger in the Thomas vehicle. Thereafter, plaintiff commenced this personal injury action against the defendants, and this summary judgment motion followed.

In support of the motion, Thomas refers to the deposition testimony of the plaintiff. According to Bonnette, at approximately 4:30 a.m., Thomas was preparing to parallel park on Avenue W between Bragg and Batchelder Streets in Brooklyn. Bonnette stated that the car was stopped a couple of seconds before impact and that she did not see the vehicle or hear horns or brakes before the accident. She also stated that it was a dry day and that the roads were dry. [*2]

Thomas testified that it was drizzling at the time of the accident. He stated that at the time of the accident he was moving backwards "into an angle" at approximately one or two miles per hour, intending to parallel park between two parked vehicles, in a parking space to his right. He stated that before he parked, he stopped his car for a few seconds, put on his right directional, checked the rearview and side view mirrors twice for oncoming vehicles, and turned around and looked behind him. He did not see any vehicles, or hear any horns or tires screeching before the accident. A few seconds after he started to reverse, his vehicle was struck in the left back end by the front of McHenry's vehicle.

A photocopy of the police accident report indicates that Thomas said that while he was attempting to park, he was struck from the rear by McHenry's vehicle. The report also indicates that McHenry said that he was traveling "E/B on Avenue W as well as was [Thomas] and was not able to stop due to weather conditions and wet pavement causing his vehicle to strike [Thomas' vehicle] in the rear.

It is Thomas' contention that summary judgment should be granted because no liability attaches to a driver who is struck in the rear.

Defendant McHenry opposes the motion and submits an attorney's affirmation in opposition. An attorney's affirmation, not based on personal knowledge, has no probative value (see Demacos v Demacos, 142 AD2d 546, 546 [1988]).

Plaintiff opposes the motion and emphasizes relevant portions of Thomas' testimony, specifically that Thomas looked for oncoming traffic and failed to see any vehicles; that he was moving at 1-2 miles per hour; and that he was looking into the parking space at the moment of impact.

Plaintiff also indicates that on February 13, 2003, McHenry was produced for deposition, but the parties have not yet received the transcript from the reporter. Plaintiff's counsel represents that McHenry testified that at the time of the subject accident, Thomas was moving out of a parking space, and not attempting to park.[FN1] Plaintiff's counsel argues that since this testimony contradicts Thomas' testimony, an issue of fact exists as to these parties' statements.

Summary judgment is considered a "drastic remedy which should only be employed when there is no doubt as to the absence of triable issues" of fact (see Andre v Pomeroy, 35 NY2d 361, 364 [1974]; Millerton Agway Co-op., Inc. v Briarcliff Farms, Inc., 17 NY2d 57, 61[1966]). In order to grant the drastic remedy of summary judgment "it must clearly appear that no material and triable issue of fact is presented ... 'issue finding rather that issue-determination is the key to [a motion for summary judgment]'"(Strychalski v Mekus, 54 AD2d 1068, 1069 [1976] quoting Stillman v Twentieth Century - Fox Film Corp., 3 NY2d 395, 404 [1957]). But, when there are no genuine issues of fact to resolve, the case, even one based in negligence, should be summarily decided (see, CPLR 3212; Andre, 35 NY2d at 364). "In general, questions of negligence regarding a road accident are best resolved at a jury trial, rather than on a motion for summary judgment" (Lindgren v New York City Housing Authority, 269 AD2d 299, 302 [2000]; Jones v Egan, 252 AD2d 909, 911[1998]). [*3]

It is well established that a party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, offering sufficient evidence to demonstrate the absence of any material issues of fact, and must do so by tendering evidentiary proof in admissible form (CPLR 3212[b]; Winegrad v New York University Medical Center, 64 NY2d 851, 853 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Republic Nat. Bank of New York v Zito, 280 AD2d 657, 657-658 [2001]).

A prima facie case of negligence is made out by proof that a stopped car was hit in the rear (see Leal v Wolff, 224 AD2d 392 [1996] [emphasis added]; Mead v Marino, 205 AD2d 669 [1994]; Conyers v Vinti, 107 AD2d 787 [1985] [plaintiff's car stopped at red light for 30 seconds]; Carter v Castle Electric Contracting Co., 26 AD2d 83 [1966] [plaintiff's car stopped at red light]).

Here, Thomas testified that he was moving backwards at the rate of approximately one or two miles per hour when the accident occurred, and Bonnette testified that the vehicle was stopped for a couple of seconds on Avenue W at the time of the accident. Therefore, an issue of fact exists as to whether the Thomas vehicle was stopped at the time of the occurrence, precluding summary judgment based upon Thomas' rear-end collision theory.

Additionally, Thomas testified that at the time of the accident he was looking backwards into the parking space, and that prior to the accident he did not see the oncoming vehicle.

Pursuant to PJI 2:77:

A driver is charged with the duty to see that which under the facts and circumstances he should have seen by the proper use of his senses, and if you find that he did not observe that which was there to be seen you may find that he was negligent in failing to look or in not looking carefully .

Further, Vehicle and Traffic Law § 1211 [a] provides that "[t]he driver of a vehicle shall not back the same unless such movement can be made without interfering with other traffic." Here, it is for the trier of fact to decide, based on Thomas' own testimony, whether he was negligent in failing to look or in not looking carefully as he was backing up his vehicle (see Pressner v Serrano, 260 AD2d 458, 459 [1999], citing Vehicle and Traffic Law § 1211 [a]).

Finally, the court notes that while McHenry admitted to the police officer at the scene of the accident that he struck Thomas' vehicle (see Kemeryash v McGoey, 306 AD2d 516 [2003]), this admission fails to resolve all issues of comparative fault as between Thomas and McHenry.

Because defendants have failed to meet their initial burden in moving for summary judgment, it is not necessary to consider the sufficiency of plaintiff's and co-defendant's opposing papers (see Ayotte v Gervasio, 81 NY2d 1062, 1063 [1993]).

Accordingly, the motion for summary judgment dismissing the complaint and all cross claims is denied.

This constitutes the decision and order of this Court.

E N T E R,

J. S. C. Footnotes

Footnote 1:An attorney's affirmation alleging a triable issue of fact based on a hearsay affirmation by counsel is insufficient to oppose a motion for summary judgment (see Guilmette v New York Telephone Company, 142 AD2d 531 [1988]). Thus, any summary of McHenry's alleged testimony by plaintiff's counsel, without the transcript annexed, is not probative.