Hopkins v Northey

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Hopkins v Northey 2018 NY Slip Op 34250(U) October 29, 2018 Supreme Court, Westchester County Docket Number: Index No. 57952/2017 Judge: Charles D. Wood 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 10/29/2018 04:13 PM NYSCEF DOC. NO. 18 INDEX NO. 57952/2017 RECEIVED NYSCEF: 10/29/2018 To commence commence the statutory statutory time time period period for appeals appeals (CPLR 5513[aJ), 5513[a]), you are advised serve a copy as ofright of right (CPLR you are advised to serve copy of of this order, order, with with notice notice of of entry, entry, upon upon all parties. parties. SUPREME SUPREME COURT COURT OF OF THE THE STATE STATE OF OF NEW NEW YORK YORK COUNTY COUNTY OF OF WESTCHESTER WESTCHESTER ---------------------------------------------------------------------x ---------------------------------------------------------------------x JAMIE JAMIE HOPKINS, HOPKINS, Plaintiff, Plaintiff, -against-againstDECISION DECISION & ORDER ORDER Index Index No. 57952/2017 57952/2017 Sequence Sequence No. No.11 THOMAS NORTHEY, NORTHEY, THOMAS Defendant. Defendant. ---------------------------------------------------------------------------x ---------------------------------------------------------------------------x WOOD,J. WOOD,J. The following connection with following papers papers were were read and considered considered in connection with plaintiff's plaintiffs motion motion partial summary summary judgment liability only: for partial judgment on liability Plaintiffs Notice of Motion, Motion, Counsel's Counsel's Affirmation, Affirmation, Exhibits. Exhibits. Plaintiffs Notice of Defendants' Counsel' Counsel's s Affirmation Affirmation in Opposition, Opposition, Exhibits. Exhibits. Defendants' Plaintiffs Counsel's Counsel's Reply Reply Affirmation. Affirmation. Plaintiffs action for alleged alleged serious serious personal personal injuries injuries arising arising out out of of an automobile automobile This is an action accident on September September 13, 2016, 2016, at approximately approximately 8:00 pm on Route Route 35 at or near accident near its intersection with with Mahopac Mahopac Avenue Avenue in Somers. Somers. According According to the complaint, complaint, while while plaintiffs plaintiffs intersection vehicle was stopped stopped at a red light light on Route Route 35, defendant's vehicle struck struck plaintiffs plaintiffs vehicle vehicle in vehicle defendant's vehicle Upon the foregoing foregoing papers, motion is decided decided as follows: follows: the rear. Upon papers, the motion proponent of of a summary summary judgment motion must must make make a "prima "prima facie showing showing of of A proponent judgment motion entitlement to judgment matter of of law, tendering tendering sufficient evidence to demonstrate demonstrate the entitlement judgment as a matter sufficient evidence absence of of any material material issues issues of of fact" (Alvarez (Alvarez v Prospect Prospect Hospital, Hospital, 68 NY2d 320, 324 absence NY2d 320, [1986] [1986];; Orange Orange County-Poughkeepsie County-Poughkeepsie Ltd. Partnership Partnership v Bonte, Bonte, 37 AD3d AD3d 684, 684, 686-687 686-687 [2d 1 [* 1] 1 of 6 FILED: WESTCHESTER COUNTY CLERK 10/29/2018 04:13 PM NYSCEF DOC. NO. 18 INDEX NO. 57952/2017 RECEIVED NYSCEF: 10/29/2018 Dept 2007]; prima 2007]; Rea v Gallagher, Gallagher, 31 AD3d AD3d 731 [2d Dept Dept 2007]). 2007]). Failure Failure to make make such such a prima facie showing showing requires requires a denial denial of of the motion, motion, regardless regardless of of the sufficiency sufficiency of the motion motion papers New York papers (Winegrad (Winegrad v New York University University Medical Medical Center, Center, 64 NY2d NY2d 851 851,, 853 [1986] [1986];; Dept 2008]; Jakabovics Jakabovics v Rosenberg. Rosenberg, 49 AD3d AD3d 695 [2d_ [2dDept 2008]; Menzel Menzel v Plotkin, Plotkin, 202 AD2d AD2d 558, 558, 558558-, I Dept 1994]). 1994]). Once Once the movant movant has met this threshold threshold burden, burden, the opposing opposing party party must must 559 [2d Dept present the existence existence of of triable triable issues issues of of fact in admissible admissible form "sufficient "sufficient to require require a trial of of present material questions questions of of fact on which which he rests rests his claim claim or must must demonstrate demonstrate acceptable acceptable excuse excuse material failure to meet meet the requirement requirement of of tender tender in admissible admissible form; form; mere mere conclusions, conclusions, for his failure expressions of of hope hope or unsubstantiated unsubstantiated allegations allegations or assertions assertions are insufficient" insufficient" (Zuckerman (Zuckerman v expressions New York, York, 49 NY2d [1980];; Khan Khan v Nelson, Nelson, 68 AD3d AD3d 1062 [2d Dept Dept 2009]). 2009]). In New NY2d 557, 562 [1980] deciding a motion motion for summary summary judgment, court is "required "required to view view the evidence evidence presented presented deciding judgment, the court most favorable favorable to the party opposing opposing the motion motion and to draw draw every every reasonable reasonable in the light most inference from the pleadings pleadings and the proof submitted by the parties parties in favor favor of of the opponent opponent to inference proof submitted motion" (Yelder (Yelder v Walters, Walters, 64 AD3d AD3d 762, 762, 767 [2d Dept Dept 2009]; 2009]; Nicklas Nicklas v Tedlen Tedlen Realty Realty the motion" Corp.,.. 305 AD2d AD2d 385, 385, 386 [2d Dept Dept 2003]). 2003]). Summary Summary judgment drastic remedy remedy and Corp judgment is a drastic should not be granted granted where where there there is any doubt doubt as to existence existence of of a triable triable issue issue (Alvarez (Alvarez v should Prospect Hospital, Hospital, 68 NY2d NY2d 320, 320, 324 [1986]). [1986]). Prospect Generally, Vehicle Vehicle and Traffic Traffic Law §1129(a) sI129(a) imposes imposes a duty on all drivers drivers to drive drive at a Generally, maintain a safe distance distance between vehicles, always always compensating compensating for any known safe speed speed and maintain between vehicles, known adverse road road conditions conditions (Ortega (Ortega v City of of New York, 721 NYS2d Dept 2000]). 2000]). "When "When adverse New York, NYS2d 790 [2d Dept driver approaches approaches another another vehicle vehicle from the rear, rear, he is bound bound to maintain maintain a reasonably reasonably safe a driver of speed speed and to maintain maintain control control of of his vehicle vehicle and use reasonable reasonable care care to avoid avoid colliding colliding rate of other vehicle" vehicle" (Young (Young v City of of New York, 113 AD2d AD2d 833 833,, 834 [2d Dept Dept 1985]). 1985]). "A "A New York, with the other 2 [* 2] 2 of 6 FILED: WESTCHESTER COUNTY CLERK 10/29/2018 04:13 PM NYSCEF DOC. NO. 18 INDEX NO. 57952/2017 RECEIVED NYSCEF: 10/29/2018 rear-end collision collision with with a stopped stopped or stopping vehicle establishes establishes a pnma pnma facie case of of rear-end stopping vehicle negligence on the part part of of the operator operator of of the rear vehicle, vehicle, thereby thereby requiring requiring that that operator operator to negligence inference of of negligence negligence by providing nonnegligent explanation explanation for the collision" collision" rebut the inference providing a nonnegligent (Fernandez v Babylon Babylon Mun. Solid Solid Waste, Waste, 117 AD3d AD3d 678 [2d Dept Dept 2014]). 2014]). In other other words, words, (Fernandez proof of proof of a rear-end rear-end collision collision establishes establishes a prima prima facie case of of negligence negligence on the part of of the driver of of the vehicle vehicle that that strikes strikes the forward forward vehicle vehicle and imposes imposes a duty duty upon upon said offending offending driver vehicle to come come forward forward with with admissible admissible proof establish an adequate, adequate, non negligent negligent vehicle proof to establish explanation for a rear-end rear-end collision collision (Parise (Parise v Meltzer, Meltzer, 204 AD2d AD2d 295 [2d Dept Dept 1994]; 1994]; Moran Moran v explanation AD3d 707, 707,708 Dept 2004]); 2004]); Cerda Cerda v Parsley. Parsley, 273 AD2d AD2d 339 [2d Dept Dept 2000]). 2000]). In Singh, 10 AD3d 708 [2d Dept addition, where where a vehicle vehicle is lawfully lawfully stopped, stopped, there there is a duty imposed imposed on the operators operators of of addition, vehicles traveling traveling behind behind it in the same same direction direction to come come to a timely timely halt halt (Carter (Carter v Castle Castle Elec. Elec. vehicles Contr. Co., Co., 26 AD2d AD2d 83 [2d Dept Dept 1966]). The operator operator of of the moving moving vehicle vehicle is required required to inference of of negligence negligence created created by an unexplained unexplained rear-end rear-end collision collision because because he or rebut the inference position to explain explain whether collision was due to a reasonable, reasonable, nonshe is in the best best position whether the collision negligent cause (Carter v Castle Castle Elec. Contr. Co., Co., at 85). negligent cause (Carter The sudden sudden stop of of a lead car is one of of the non-negligent non-negligent explanations explanations of of a rear-end rear-end collision, because operator of of that that car has a duty to avoid avoid stopping stopping suddenly without suddenly without collision, because the operator properly signaling signaling to avoid avoid a collision collision "when "when there is opportunity opportunity to give give such signal" (Vehicle (Vehicle properly such signal" Traffic Law Law §1163; S1163; see id. id.;; Colonna Colonna v Suarez. Suarez, 278 AD2d AD2d 355 355,, [2d Dept Dept 2000]) 2000]); ; Taveras Taveras v and Traffic Amir, 24 AD3d AD3d 655, 655, 656 [2d Dept Dept 2005]) 2005]) "A conclusory conclusory assertion assertion by the operator operator of of the Amir, following vehicle vehicle that that the sudden sudden stop of of the vehicle vehicle caused caused the accident accident is insufficient, insufficient, in and following of itself, itself, to provide provide a nonnegligent nonnegligent explanation" explanation" (Gutierrez (Gutierrez v Trillium Trillium USA, USA, LLC, LLC, 111 111 AD3d AD3d of 669, 670 [2d Dept Dept 2013]). 2013]). But, But, "stops "stops which which are foreseeable foreseeable under under the prevailing prevailing traffic traffic 669, 3 [* 3] 3 of 6 FILED: WESTCHESTER COUNTY CLERK 10/29/2018 04:13 PM NYSCEF DOC. NO. 18 INDEX NO. 57952/2017 RECEIVED NYSCEF: 10/29/2018 conditions, conditions, even if if sudden sudden and frequent, frequent, must must be anticipated anticipated by the driver driver who follows, follows, since since under a duty duty to maintain maintain a safe distance distance between between his or her her car and the car ahead" he or she is under ahead" (Gutierrez v Trillium USA, LLC, 111 III AD3d AD3d at 671). (Gutierrez Trillium USA, Here, plaintiffs plaintiffs motion motion for summary summary judgment evidence that Here, judgment is supported supported by evidence establishes prima prima facie entitlement entitlement to judgment matter of of law. Plaintiff Plaintiff tendered tendered the establishes judgment as a matter summons and complaint complaint and plaintiffs plaintiffs affidavit that she was stopped stopped at a red light light for about about summons affidavit that when defendant's defendant's vehicle vehicle struck struck her vehicle vehicle in the rear. Based Based upon upon the record, record, five seconds seconds when plaintiff has met her prima prima facie burden burden of of establishing establishing defendant's defendant's negligence, negligence, and plaintiff plaintiff is plaintiff entitled to summary summary judgment unless defendant defendant presents presents a nonnegligent nonnegligent explanation explanation for the car entitled judgment unless accident. accident. Defendant argues argues that that the motion motion is premature discovery is needed, needed, but fails to Defendant premature as discovery submit from defendant defendant an affidavit affidavit that presents presents a non-negligence non-negligence explanation explanation for the accident. accident. submit "A party party contending contending that that a motion motion for summary summary judgment premature is required required to "A judgment is premature demonstrate that that additional additional discovery discovery might might lead to relevant relevant evidence evidence or that that the facts essential essential demonstrate oppose the motion motion are exclusively exclusively within within the knowledge knowledge and control control of of the movant" movant" to oppose (Reynolds v Avon Avon Grove Grove Properties, Properties, 129 AD3d AD3d 932, 932, 933 [2d Dept Dept 2015]). 2015]). (Reynolds Therefore, while while depositions depositions have have not been been completed, completed, defendants' position that that Therefore, defendants' position additional discovery discovery might might reveal reveal something something helpful determination of of liability liability in this additional helpful to the determination matter does not provide provide a basis basis pursuant pursuant to CPLR CPLR 3212(f) 3212(f) for postponing postponing judgment (Morrisaint matter judgment (Morrisaint Raemar Corp Corp.,.. 271 AD2d AD2d 586 [2d Dept Dept 2000]). 2000]). The mere mere hope hope or speculation speculation that evidence that evidence v Raemar sufficient to defeat defeat a motion motion for summary uncovered during during the discovery discovery summary judgment judgment may be uncovered sufficient process is insufficient insufficient to deny motion ((l06 AD3d 850). However, However, "where "where knowledge knowledge is the 106 AD3d process deny the motion peculiarly within within the possession possession of of the movant movant himself, himself, summary key fact at issue, and [is] peculiarly summary 4 4 [* 4] 4 of 6 FILED: WESTCHESTER COUNTY CLERK 10/29/2018 04:13 PM NYSCEF DOC. NO. 18 INDEX NO. 57952/2017 RECEIVED NYSCEF: 10/29/2018 judgment will ordinarily judgment ordinarily be denied", denied", which which is not the case here (Di Miceli Miceli v Olcott, Olcott, 119 AD2d AD2d 539 [2d Dept 1986]). Under Under these these circumstances, circumstances, and based based upon upon the applicable applicable case case law, defendant defendant fails to offer offer a non-negligent non-negligent explanation explanation for their their vehicle vehicle rear ending ending plaintiff's plaintiff's vehicle vehicle sufficient sufficient to raise a triable triable question question of of fact (Williams (Williams v Spencer Spencer Hall, 113 A.D3d A.D3d 759, 760 (2d [2d Dept Dept 2014]). 2014]). Further, the law in New New York York no longer longer mandates mandates that that plaintiff plaintiff must must disprove disprove Further, comparative comparative negligence. negligence. The The Court Court of of Appeals Appeals has recently recently clarified clarified that that Article Article 14-A of of the CPLR CPLR contains contains New New York's York's codified codified comparative comparative negligence negligence principles, principles, and that that the legislative legislative history negligence is no longer history of of Article Article 14-A makes makes clear clear that "a "a plaintiffs plaintiffs comparative comparative 'negligence longer a complete defense defense to be pleaded pleaded and proven proven by the plaintiff, plaintiff, but but rather rather is only only relevant relevant to the complete mitigation pleaded and proven proven by the defendant" mitigation of of plaintiffs plaintiffs damages damages and should should be pleaded defendant" (Rodriguez v City ofNew of New York, 31 NY3d NY3d 312,321 (2018]). [2018]). "To "To be entitled entitled to partial summary (Rodriguez partial summary judgment plaintiff does does not bear bear the double double burden burden of of establishing establishing a prima prima facie case of of judgment a plaintiff defendant's liability liability and and the absence absence of of his or her own own comparative comparative fault" fault" (Rodriguez (Rodriguez v City City of of defendant's New York, York, supra). Thus, to be entitled entitled to summary summary judgment issue of of liability, liability, a New supra). Thus, judgment on the issue plaintiff is no longer longer required required to show show freedom freedom from comparative comparative fault fault in establishing establishing his or her plaintiff prima facie case to the extent extent that that the opposing opposing party is negligent negligent and a proximate proximate cause cause of of the prima incident (Edgerton (Edgerton v City of of New A.D.3d 809 [2d Dept Dept 2018]). 2018]). New York, 160 A.D.3d incident reasons as discussed discussed above, above, and of of those those advanced advanced by plaintiff, plaintiff, plaintiff plaintiff has For the reasons demonstrated that defendant defendant was negligent negligent and a proximate proximate cause cause of of the accident. accident. demonstrated Therefore in light light of of the foregoing, foregoing, it is hereby hereby Therefore ORDERED, plaintiff's motion partial summary judgment on the issue of ORDERED, that that the plaintiff's motion for partial summary judgment of 5 [* 5] 5 of 6 FILED: WESTCHESTER COUNTY CLERK 10/29/2018 04:13 PM NYSCEF DOC. NO. 18 INDEX NO. 57952/2017 RECEIVED NYSCEF: 10/29/2018 liability is granted, granted, and the Clerk Clerk is directed directed to enter enter judgment accordingly; and it is further further liability judgment accordingly; ORDERED, that that the issue issue of of serious serious injury injury will be tried tried during during the damages damages phase phase of of ORDERED, trial, and that the granting granting of of this summary summary judgment motion does does not preclude preclude further further the trial, judgment motion determination that that plaintiff plaintiff may mayoror may not have sustained sustained serious serious injury injury as defined defined by determination Insurance Law §5102[d] S5102[d];; and it is further further Insurance ORDERED, that that the parties parties are directed directed to appear appear in the Compliance Compliance Conference Conference Part Part ORDERED, on 11II I'-/ L/ /.,2018 /.,2018 JI/ at at of the Westchester Westchester County County Courthouse, Courthouse, 111 111 9 .JD~oom Jo~oom 800 of Martin Luther Luther King King Jr. Blvd., Blvd., White White Plains, Plains, New York 10601. Dr. Martin New York matters not herein herein decided decided are denied. denied. All matters This constitutes the Decision Decision and Order Order of of the court. court. This constitutes Dated: October 29, 29,2018 October 2018 White Plains, Plains, New York White New York TO: All Parties Parties by NYSCEF TO: NYSCEF 6 [* 6] 6 of 6

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