Cross v Welcome

[*1] Cross v Welcome 2016 NY Slip Op 51243(U) Decided on August 29, 2016 Supreme Court, New York County Stallman, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 29, 2016
Supreme Court, New York County

Eric Cross and Karen Cross, Plaintiffs,

against

Neville L. Welcome, New York City Transit Authority and the City of New York, Defendants.



158732/2013



For defendants Neville L. Welcome and New York City Transit Authority:

Lawrence Heisler, Esq.

By: Tracy F. Goldberg, Esq.

130 Livingston St, 11th Fl

Brooklyn, NY 11201

(718) 694-4756

For plaintiffs:

Douglas & London PC

By: Robin J. Bond, Esq.

59 Maiden Lane 6th Fl

New York, NY 10038

(212) 566-7500
Michael D. Stallman, J.

In this action arising out of a rear-end motor vehicle collision by a bus, defendants Neville Welcome and the New York City Transit Authority (NYCTA) move to renew and reargue a prior decision and order, which granted plaintiffs summary judgment in their favor as to liability against Welcome and the NYCTA. Plaintiffs oppose the motion.

BACKGROUND

It is undisputed that, on October 14, 2012, a bus, operated by defendant Neville Welcome [*2]and owned by defendant New York City Transit Authority (NYCTA), rear-ended a vehicle operated by plaintiff Eric Cross, on Seventh Avenue at its intersection with West 34th Street. Eric Cross's wife, plaintiff Karen Cross, was a passenger in the vehicle, and she asserts a derivative cause of action.

By a decision and order dated March 16, 2016, this Court granted plaintiff's summary judgment in their favor as to liability against Welcome and NYCTA (the NYCTA defendants). The decision states, in relevant part:

"As the NYCTA and Welcome indicate, Welcome's and Cross's accounts of the rear-end collision are in dispute. Cross testified that he was stopped at a red light; Welcome testified that the traffic light was green, and that a traffic agent had directed Cross to stop. However, under Cross's version or under Welcome's version of the rear-end collision, Welcome fails to offer a non-negligent explanation of the accident to rebut the presumption of his negligence.The gist of Welcome's testimony is that Cross's vehicle suddenly stopped at the green light, at the direction of a traffic agent at the intersection.In the Appellate Division, First Department, the vast majority of cases hold that a sudden stop, standing alone, is insufficient to rebut the presumption of negligence."

(Goldberg Affirm., Ex E.)

The NYCTA defendants now move for renewal and reargument of the Court's prior decision and order. Plaintiffs oppose the motion.

DISCUSSION

Reargument is denied. The Court did not overlook or misapprehend any matters of fact or law offered on the prior motion. (CPLR 2221 [d].) The NYCTA defendants argue that "the inconsistencies in the color of the traffic light, and whether the drivers were moving or stopped at the time of the accident, are sufficient facts to have defeated Plaintiffs' Summary Judgment motion." However, the prior decision specifically addressed this point, stating "under Cross's version or under Welcome's version of the rear-end collision, Welcome fails to offer a non-negligent explanation of the accident to rebut the presumption of his negligence."

It is immaterial whether Cross's vehicle was already stopped at a red traffic light, or was stopping or abruptly stopping at a green traffic light because, as Welcome testified, a traffic agent directed Cross's vehicle to stop. The presumption of negligence in rear-end collisions applies to both stopped and stopping vehicles. (Cabrera v Rodriguez, 72 AD3d 553 [1st Dept 2010].)

Hotkins v New York City Tr. Auth. (7 AD3d 474 [1st Dept 2014]), which the NYCTA defendants now cite, was not raised in their prior motion papers. Reargument is not designed to afford the unsuccessful party successive opportunities to reargue issues previously decided or to present arguments different from those originally asserted." (William P. Pahl Equip. Corp. v Kassis, 182 AD2d 22, 27 [1st Dept 1992] [internal citations omitted].)

The NYCTA defendants seek renewal based on the Appellate Division, First [*3]Department's recent decision in Maisonet v Roman (139 AD3d 121 [1st Dept 2016] appeal dismissed, 27 NY3d 1062 [1st Dept 2016]) and Barba v Stewart (137 AD3d 704 [1s Dept 2016]), which were decided after the Court's prior decision and order.

In Maisonet, the defendant Roman claimed that he had been driving 20 miles per hour at a safe distance behind the plaintiff Maisonet with the right of way, when another car suddenly turned left in front of him at an intersection. To avoid colliding with the turning car, Roman swerved to the right into the direction of a column supporting an elevated subway line. Roman then swerved sharply to the left to avoid the column, but then rear-ended Maisonet's moving vehicle. (Maisonet, 139 AD3d at 124.)

By a three-two decision, the Appellate Division, First Department reversed the lower court, which had granted partial summary judgment on liability in the plaintiff's favor on the presumption of negligence in a rear-end collision. The majority ruled that the defendant had raised triable issues of fact as to whether he faced an emergency due to the car that suddenly turned left into his path of travel, and as to whether his swerving to the right and the left was reasonable under the circumstances (Id. at 124.)

The dissent thought that the defendant failed to raise a triable issue of fact. The dissent stated, "there is no logic by which it may be concluded that the rear-end collision was caused by a sudden need to swerve around an intervening car, rather than by defendant's own negligence." (Id. at 127.) The dissent reasoned,

"Defendant always had the duty to maintain a safe distance between his vehicle and the vehicle in front of him, and to proceed at a rate of speed that would not alter that safe distance. If he had been going an appropriate rate of speed and had maintained a safe distance between his vehicle and plaintiffs' vehicle in front of him—that is, leaving enough distance to allow for stopping if plaintiffs' vehicle stopped—even the sudden need to swerve around a car that suddenly cut in front of him would not have caused him to crash into the back of plaintiffs' vehicle.Defendant does not claim, nor could he reasonably claim, that having to swerve around a vehicle that suddenly appeared in front of his vehicle caused his rate of speed to increase, or shortened the distance between his vehicle and plaintiffs' vehicle. So, his inability to avoid rear-ending plaintiffs' car, which was directly in front of him in the lane, was not caused by his claimed sudden need to swerve. Instead, it could only have been caused by his excess speed or the insufficient distance between his own vehicle and plaintiffs' vehicle."

(Id. at 127 [internal citation omitted].)

The majority thought that the dissent had misconstrued the record on appeal.

To the extent that the NYCTA defendants argue that Maisonet constitutes a change in the law that would change this Court's underlying determination, the Court notes that the emergency doctrine is not new law. (See e.g. Caristo v Sanzone, 96 NY2d 172, 174 [2001].) Neither is it a novel proposition that the existence of an emergency may constitute a non-negligent explanation that overcomes the presumption of negligence of the offending vehicle in a rear-end collision. For example, in Hotkins v New York City Tr. Auth. (7 AD3d 474 [1st Dept 2004]), upon which movants relied in seeking reargument, the defendant's vehicle pulled in front of the defendant's [*4]bus abruptly, leaving only a space of only three feet between the vehicles, and then stopped, forcing the bus driver to brake immediately to avoid collision. The Appellate Division ruled that the bus driver acted reasonably in an emergency situation not of his own making. (Id. at 474.)

Rather, the NYCTA defendants appear to cite Maisonet for the proposition that the sudden stop of the lead vehicle, in itself, in a rear-end collision constitutes an emergency that rebuts the presumption of negligence of the offending vehicle. Certainly, such a proposition would be a significant change in the law in this judicial department on the presumption of negligence in rear-end collisions. Therefore, the branch of the NYCTA Defendants' motion for renewal is granted.

As this Court indicated in the prior decision, the vast majority of cases in the Appellate Division, First Department hold that a sudden stop, standing alone, is insufficient to rebut the presumption of negligence. (Diako v Yunga, 126 AD3d 567 [1st Dept 2015]; Cruz v Lise, 123 AD3d 514 [1st Dept 2014]; Chowdhury v Matos, 118 AD3d 488 [1st Dept 2014]; Santana v Tic-Tak Limo Corp., 106 AD3d 572 [1st Dept 2013] ["Defendant driver's testimony that plaintiff stopped short' and that he could not see her brake lights is insufficient to rebut the presumption of negligence'"]; Androvic v Metropolitan Transp. Auth., 95 AD3d 610, 610 [1st Dept 2012] ["That the bus came to a sudden stop was insufficient to raise a triable issue of fact"]; but see Berger v New York City Hous. Auth., 82 AD3d 531 [1st Dept 2011].)

Because Maisonet did not involve a sudden stop of the lead vehicle, it cannot be read so broadly for such a proposition. Maisonet did not create a change in the law that would change this Court's prior determination. (CPLR 2221 [e].) Moreover, the NYCTA Defendants could have argued the emergency doctrine in its prior motion for summary judgment but did not.

In any event, "the emergency doctrine typically is inapplicable to routine rear-end traffic accidents." (Johnson v Phillips, 261 AD2d 269, 271 [1st Dept 1999]; see also Matias v Grose, 123 AD3d 485, 486 [1st Dept 2014] [holding that emergency doctrine did not apply to accident in which defendant's tractor trailer rear-ended another stopped tractor trailer from the rear, causing defendant's tractor trailer to jack-knife and strike plaintiff's vehicle]; Jacobellis v New York State Thruway Auth., 51 AD3d 976, 977 [2d Dept 2008] [holding that emergency doctrine did not apply in a case where the defendant driver veered into the claimant's decedent's vehicle to avoid a rear-end collision with another car that had stopped suddenly to avoid an animal].)

DiPaola v Scherpich (239 AD2d 459 [2d Dept 1997]) is instructive. There, the plaintiff's vehicle was rear-ended when the plaintiff stopped in the intersection to yield to an ambulance displaying emergency lights. The Appellate Division, Second Department ruled, "Under the circumstances, the inference of negligence arising from the rear-end collision was not rebutted by the allegation that [the plaintiff] stopped suddenly." (Id. at 460.)

Here, Welcome claims that Cross's vehicle, like the plaintiff's vehicle in DiPaola, was stopped to yield to an ambulance displaying emergency lights. Under these similar circumstances, the inference of negligence arising from the rear-end collision was not rebutted by the allegation that Cross stopped suddenly for an emergency vehicle.

Barber v Stewart is inapposite, because Barber did not involve the presumption of negligence in rear-end collisions. In Barber, the plaintiff's vehicle and the defendant's tour bus made contact at an intersection where a traffic officer was directing traffic. The plaintiff asserted that the defendant's tour bus made an unsafe lane change, striking the front of her vehicle, after the defendant driver's vehicle was waved through the traffic light by a traffic officer. The defendant driver stated that his vehicle was stopped halfway into an intersection, and that the [*5]plaintiff rear-ended his vehicle after he moved his bus forward at the direction of the traffic officer. The lower court granted the plaintiff partial summary judgment on the issue of liability, but the Appellate Division reversed, finding that conflict versions of the accident raised triable issues of fact precluding summary judgment.

Hotkins is equally inapposite. There, the emergency was created when a vehicle pulled in front of the bus and then stopped, when there was undisputedly only three feet of space between the vehicles. Unlike Hotkins, Welcome was traveling in the same lane as Cross (see Welcome EBT, at 45, and Welcome had a duty to maintain a safe distance from Cross's vehicle under Vehicle and Traffic Law § 1129 (a). This case is more similar to DiPaola than Hotkins.

Therefore, upon renewal, the Court adheres to its prior determination.

CONCLUSION

Accordingly, it is hereby

ORDERED that the branch of this motion to reargue by defendants Neville L. Welcome and New York City Transit Authority is denied; and it is further

ORDERED that the branch of this motion by defendants Neville L. Welcome and New York City Transit Authority seeking renewal is granted, and upon renewal, the Court adheres to its prior decision.

Dated: August 29, 2016

New York, New York

ENTER:

/s/



J.S.C.