Jin Fang Mai v Saul

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Jin Fang Mai v Saul 2013 NY Slip Op 30584(U) March 22, 2013 Supreme Court, New York County Docket Number: 100464/2011 Judge: Arlene P. Bluth Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. NNED ON 312712013 [* 1] SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: 22 PART Justice I Index Number: 100464/2011 MAI, JIN FANG INDEX NO. vs. MOTION DATE SAUL, ANDREW M. SEQUENCE NUMBER. 002 MOTION SEQ. NO. SUMMARY JUDGMENT The following papers, numbered 1 to s z A, read on this motion to/for were Notice of MotionlOrder to Show Cause -Affidavits - Exhibits Oh /I , b 111 INo(s). IW 3 ) " INo(5). Answering Affidavits - Exhibits Replying Affidavits ' h , / 2 L Upon the foregoing papers, it i ordered that this motion is s w 2 L P 1 FILED J.S.C. 164 1. CHECK ONE: ..................................................................... 2. CHECKAS APPROPRIATE: ........................... MOTION IS: 3. CHECK IF APPROPRIATE: ................................................ uI DISPOSED CASE 'MjGON-FINAL DISPOSITION UDENIED l l GRANTED PRANTEQ IN PART SETTLE ORDER aDO NOT POST 0OTHER 0SUBMIT ORDER E]FlDUCl4RY APPOINTMENT 0REFERENCE [* 2] SUPREME COURT OF THE STATE OF NEW Y O M COUNTY OF NEW YORK: PART 22 _ _ _ _ _ _ _ _ _ _ 1 1 1 1 1 _ 1 _ _ _ 1 _ " ~ ~ " 1 X Jin Fang Mai and Tian-Qi Pan, Index No. 100464/11 Mot. Seq. 002 Plaintiffs, -V- Andrew M. Saul and Toyota Motor Credit Corporation, Plaintiffs' motion for summary judgment on the issue of lkb!fitg &@lsgranted. This action arises from a rear end auto collision t ~ 1 i ! ~Deeg& -' 4- k ~ Expressway on July 20,201 0. Plaintiff Mai was the operator and plaintiff Pan was the owner of a vehicle that was struck from behind by a vehicle owned and operated by defendant Saul. Defendant Toyota Motor Credit Corporation is no longer a party. In order to prevail on its motion for summary judgment, the movant must make a prima facie showing of entitlement to judgment as a matter of law, through admissible evidence, eliminating all material issues of fact. Alvarez v Prospect Hospital, 68 NY2d 320, 508 NYS2d 923 (1 986). Once the movant demonstrates entitlement to judgment, the burden shifts to the opponent to rebut that prima facie showing. Bethlehem Steel Corp. v Solow, 5 1 NY2d 870,872, 433 NYS2d 1015 (1980). In opposing such a motion, the party must lay bare its evidentiary proof. Conclusory allegations are insufficient to defeat the motion; the opponent must produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact. Zuckerman v. Ct ofNew York, 49 NY2d 557 at 562,427 NYS2d 595 (1980). iy In deciding the motion, the court must draw all reasonable inferences in favor of the nonmoving party and must not decide credibility issues. (Dauman Displays, Inc. v Musturzo, 168 Page 1 of 4 ~ [* 3] AD2d 204,562 NYS2d 89 [lst Dept 19901, lv. denied 77 NY2d 939,569 NYS2d 612 [1991I). As summary judgment is a drastic remedy which deprives a party of being heard, it should not be granted where there is any doubt as to the existence of a triable issue of fact (Chemical Bank v West 95th Street Development Corp., 161 AD2d 21 8, 554 NYS2d 604 [ 1st Dept 1990]), or where the issue is even arguable or debatable (Stone v Goodson, 8 NY2d 8,200 NYS2d 627 [ 19601). In support of the motion, plaintiff submits the transcript of her deposition testimony (exh D to moving papers) wherein she stated that as she was driving in the left lane of the Major Deegan Expressway, the car in front of her stopped and then plaintiff stopped her car. She further stated that her car was completely stopped for three seconds before she was struck from behind by defendant (T. at 20,21,25), It is well settled that a rear-end collision with a stopped vehicle creates a presumption that the operator of the moving vehicle was negligent (Corrigan v Porter Cab Corp., 101 AD3d 471,955 NYS2d 336 [lst Dept 20121, Agramonte v Ct oflvew iy York, 288 AD2d 75, 732 NYS2d 414 [lst Dept 2001I). Therefore, plaintiff Mai, through her affidavit, made a prima facie showing of entitlement to judgment as a matter of law by demonstrating that her stopped vehicle was rear-ended by defendant. In opposition, defendant submits his affidavit (exh C to opp); while he admits rear-ending plaintiffs vehicle, he attempts to demonstrate a non-negligent explanation for the accident. Defendant states that just before the accident occurred he was following plaintiff in the left lane of traffic, and that they were both traveling at 50 miles per hour. Additionally, he states I was a reasonable distance behind her. Traffic was moving and there was no congestion. I could see traffic ahead of plaintiff s car was moving (sic). Suddenly, the plaintiff came to an abrupt stop on the highway for no reason, I saw no brake light come in back of plaintiffs car (aff., paras. 1Page 2 of 4 [* 4] 4). Although defendant slammed on his breaks, he was unable to stop . This narrative fails to rebut the inference of negligence by providing a non-negligent explanation for the collision (Profitu v D i m , 100 AD3d 48 1, 954 NYS2d 40 [ 1st Dept 20121). The law is clear: the claim that the vehicle in front stopped suddenly is insufficient to raise a triable issue of fact (see Cubrera v Rodriguez, 72 AD3d 553,900 NYS2d 29 [ 1st Dept 201 01). Moreover, Vehicle and Traffic Law 0 1129 imposes a duty to be aware of traffic conditions, including vehicle stoppages (Johnson v Phillips, 261 AD2d 269,271, 690 NYS2d 545 [lst Dept 19991). Nowhere is there any explanation as to why defendant failed to maintain a safe distance between his vehicle and plaintifps vehicle (see Dattilo v Best Tramp. Inc., 79 AD3d 432, 913 NYS2d 163 [lst Dept 20101; Soto-Maroquin v Mellet, 63 AD3d 449,449450,880 NYS2d 279 [ 1st Dept 20091). Defendant s counsel also argues that not every rear-end case is the sole fault of the rear driver, and that sometimes a jury must determine questions of fact, The Court wholeheartedly agrees with this statement; however, this defendant has failed to fulfill his burden of showing that there are any factual issues for a jury to determine or any factual issues which would otherwise cause this Court to deny plaintiffs motion. Defendant does not claim, for example, that he was hit in the rear and then pushed into plaintiffs car, or that plaintiff violated any traffic rules which could not have been anticipated by defendant. By merely saying at his deposition that he can t remember [plaintiffs] brake lights going on (T. at 12, lines 18-2l), defendant has not demonstrated that plaintiffs brake lights were not working at the time of the accident. Plaintiff says that she saw the car ahead of her in the left lane suddenly stop, jammed on her brakes to avoid a collision, and was stopped for three seconds when she was rear-ended by defendant; Page 3 of 4 [* 5] determine with respect to defendant s liability. Accordingly, it is I ORDERED that plaintiffs motion for summary judgment on the issue of liability is granted; and it is hereby ORDERED that the parties are directed to appear at the conference ,scheduled for April 10,2013 at 80 Centre Street at 9:3OAM. This is the Decision and Order of the Court. Dated: March 22,2013 New York, NY / 1 ARLENE P. BLUTH, JSC Page 4 of 4

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