Tedder v Abreu
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Tedder v Abreu 2018 NY Slip Op 34252(U) December 19, 2018 Supreme Court, Westchester County Docket Number: Index No. 60037/2018 Judge: Terry Jane Ruderman 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 12/20/2018 11:31 AM NYSCEF DOC. NO. 24 INDEX NO. 60037/2018 RECEIVED NYSCEF: 12/19/2018 ofright appeals as of To commence right tim·e for appeals statutory tim-e the statutory commence the (CPLR 5513[a]), 5513(a]), you are advised.to advised.to serve serve a copy copy _ (CPLR parties·.... upon- all parties' of entry, upon' of notice -ofentry, with notice order, with this order, of this YORK NEW YORK STATE OF NEW SUPREME THE STATE COURT OF THE SUPREME COURT COUNTY WESTCHESTER COUNTY OF WESTCHESTER ------------.-------------------------------------------------------)C -----------------------------------x --------------------------------- TEDDER, DONALD RHONDA L. TEDDER, TEDDER and RHONDA DONALD L. TEDDER ORDER -DECISION and ORDER · DECISION and No . 1 Motion Sequence NO.1 Motion Sequence Inde)CNo. 60037/2018 Index No. 60037/2018 Plaintiffs, Plaintiffs, -against-against- ABREU, RlTAR: RITAR: ABREU, Defendant. Defendant. ------------------------------------.------------------~~------.----)C ----------------------. -----------x --------------------------------RUDERMAN, RUDERMAN, J. for plaintiffs for by plaintiffs motion by the motion with the The considered in connection connection with were considered papers were following papers The following 'liability against issue of partial summary judgment ofHability against defendant: defendant: judgment on the issue partial summary Papers Papers Exhibits A - G Notice Affirmation, E)ChibitsA Motion, Affirmation, of Motion, Notice of Affirmation and Affidavit Opposition Affidavit in Opposition Affirmation and Reply Affirmation Reply Affirmation Numbered Numbered 1 2 3 collision. vehicle collision. motor vehicle sustained in a motor allegedly sustained This injuries allegedly personal injuries action for personal This is an action p.m., on 2:30 p.m., 2018 at approximately Plaintiff asserts that appro)Cimately 2:30 on 12th 12th April 21, 2018 that on April Tedder asserts Rhonda Tedder Plaintiff Rhonda motor the motor County, the York County, New York Street in New Avenue West 44thth Street of West intersection of the intersection southbound at the Avenue southbound vehicle bumper of rear bumper vehicle owned and and operated operated by defendant defendant Rita struck the rear of the vehicle Abreu struck Rita Abreu vehicle owned was a Tedder was Donald Tedder plaintiff Donald owned which plaintiff Tedder, in which Rhonda Tedder, plaintiff RhQnda operated by plaintiff and operated owned and passenger. passenger. of right of directly to the right lane directly the lane been in the had been her car had According Tedder, her Rhonda Tedder, plaintiff Rhonda According to plaintiff ' '. the prior to the minutes prior approximately 1-2 minutes the light for appro)Cimate1y stopped for a red light completely stopped lane, completely left-tum lane, the left-tum her car was hit green her turned green light turned accident, front of of her, just as the light when just her, when one car in front least one with at least accident, with 1 [* 1] 1 of 6 FILED: WESTCHESTER COUNTY CLERK 12/20/2018 11:31 AM NYSCEF DOC. NO. 24 INDEX NO. 60037/2018 RECEIVED NYSCEF: 12/19/2018 in the defendant. driven by defendant. vehicle driven the vehicle rear by the the rear Defendant respects. Defendant some respects. Defendant's plaintiffs' in some contradicts plaintiffs' collision contradicts the collision of the narrative of Defendant's narrative th initially describes describes the traffic traffic on 12th Avenue as extremely extremely heavy, heavy, bumper-to-bumper, bumper-to-bumper, so that that her Avenue initially traffic light the traffic that the vehicle's of speed speed never exceeded five miles and states states that light cycled cycled hour, and per hour, miles per never exceeded vehicle's rate of . \ \ because of through of green-yellow-red green-yell ow-red cycles cycles without advancing, because of the traffic advancing, without traffic number of through a number accelerated first accelerated vehicle, at first conditions plaintiffs' vehicle, her, plaintiffs' of her, front of the car in front that the asserts that ahead. She asserts conditions ahead. then but then yellow, but was yellow, light was if it were were going going to proceed through the intersection intersection while while the the light proceed through as if abruptly and and unexpectedly unexpectedly stopped stopped short short at the crosswalk. crosswalk. She maintains maintains that that when when pl~intiffs' plaintiffs' abruptly vehicle accelerated accelerated as if going to proceed intersection, it attained attained a speed speed of of the intersection, through the proceed through were going if it were vehicle vehicle as plaintiffs' vehicle greater and she characterizes characterizes the movement of plaintiffs' movement of hour, and per hour, miles per than five miles greater than , ' came which it came manner in which of the manner abruptness of lurching suddenness and abruptness the suddenness from the back from and back forward and lurching forward car and her car asserts that that she had had maintained maintained a safe distance distance between betwe~nher and the the other other to a stop. She asserts through pass through vehicles, only the the acceleration acceleration of of plaintiffs' vehicle as if if it intended intended to pass plaintiffs' vehicle was only vehicles, and it was I that the intersection, intersection, followed followed by its sudden, sudden, abrupt abrupt and unexpected short stop stop at.the atthe crosswalk, crosswalk, that unexpected short collision. caused the collision. caused the Analysis Analysis than vehicle more Since "[t]he "[t]hedriver of a motor motor vehicle vehicle shall shall not not follow follow another another vehicle more closely closely than driver of Since upon traffic upon the traffic vehicles and is reasonable and prudent, speed of of such such vehicles and the regard for the speed having due regard prudent, having reasonable and rear-end collision Law§S 1129 [a]), condition of of the (Vehicle and Traffic Traffic Law [a]), "a "a rear-end collision highway" (Vehicle the highway" and the condition the of the part of the part on the negligence on of negligence with stopped or stopping stopping vehicle case of prima facie case establishes a prima vehicle establishes with a stopped operator of of the the rear rear vehicle, vehicle, thereby that operator operator to rebut rebut the the inference inference of ofnegligence negligence requiring that thereby requiring operator El Sol by providing nonnegligent explanation explanation for the collision" collision" (Kuris (Kuris v El Sol Contr. & Constr. Constr. providing a nonnegligent Corp., 116 AD3d 675-676 [2d Dept [citations omitted]). omitted]). "A "A nonnegligent nonnegligent 2014] [citations Dept 2014] AD3d 675, 675-676 Corp., 2 [* 2] 2 of 6 FILED: WESTCHESTER COUNTY CLERK 12/20/2018 11:31 AM NYSCEF DOC. NO. 24 INDEX NO. 60037/2018 RECEIVED NYSCEF: 12/19/2018 ahead, an vehicl~ ahead, the vehicl~ of the stop of sudden stop failure, a sudden explanation mechanical failure, of a mechanical evidence of include evidence may include explanation may \\ Paratransit, cause" (Ramos reasonable cause" other reasonable unavoidable skidding on (Ramos v TC Paratransit, pavement or any other wet pavement on wet unavoidable skidding 96 AD3d 2012]). Dept 2012]). 925 [2d Dept 924, 925[2d AD3d 924, to judgment on the Plaintiffs' submissions establish establish pri,ma entitlement to summary summary judgment pdma facie entitlement Plaintiffs' submissions stopped were stopped they were while they rear while the rear struck in the was struck issue vehicle was their vehicle that their establishing that liability, by establishing of liability, issue of raise a whether defendant's intersection. The The questi,on questi.on is whether defendant's submissions submissions are sufficient sufficient to raise at an intersection. of fact. issue of triable triable issue defendants instance, defendants where, for instance, cases where, collision cases Issues rear-end collision found in rear-end been found have been fact have of fact Issues of warning without warning submitted evidence "the plaintiff's stopped suddenly suddenly and without vehicle stopped plaintiff's vehicle that "the evidence that submitted was no there was that there fact that the fact despite the intersection, despite approximately nearest intersection, the nearest from the feet from approximately 40 to 50 feet Dept AD3d 658,659 traffic front of ofthat v Jason Transp. Corp., Corp., 102 AD3d 658,659 [2d Dept KerteszvJason vehicle" (see Kertesz that vehicle" traffic in front the factas of fact issue of supra), an issue 924, supra), AD3d 924, 2013]). as to the Paratransit (96 AD3d Ramos v TC Paratransit Similarly in Ramos 2013]). Similarly plaintiff driver that "the testimony that defendant's non-negligent explanation was created by testimony "the plaintiff driver was created non-negligent explanation defendant's traffic in moving traffic of moving lane of left lane the left vehicle in the suddenly plaintiffs' vehicle the plaintiffs' stopped the warning stopped without warning and without suddenly and 925-926). (id at 925-926). prohibited were. prohibit~d turns were such turns where such order to make illegal left ... at a point (id. point where turn ... left turn make an illegal order ' her car that her asserted that plaintiff asserted the plaintiff while the 2013]), while In Martin Cartledge (102 Dept 2013]), AD3d 841 [2d Dept (102 AD3d Martin v Cartledge waiting to ramp waiting entrance ramp on an entrance was stopped on when stopped vehicle when defendants' vehicle the defendants' rear by the the rear struck in the was struck motion by the motion opposition to the of fact in opposition merge "the defendants issues of triable issues raised triable defendants raised roadway, "the onto a roadway, merge onto already had already vehicle had plaintiff's vehicle the plaintiff's submitting after the occurred after ~ctually occurred collision ~ctually the collision that the evidence that submitting evidence middle of completed and then came to a sudden sudden and unexplained of the unexplained stop in the middle then came ~erge and the ~erge completed the 2008] Dept 2008] AD3d 724, 725 [2d Dept Inc., 57 AD3d roadway" (id; see Fleetwood Ride, Inc., Foti v Fleetwood also Foti see also roadway" (id; plaintiffs' the plaintiffs' that the denied where deposition testimony indicated that testimony indicated where deposition properly denied judgment properly summary judgment [[summary that he informed that was informed driver was the driver after the roadway after the roadway of the vehicle middle of the middle stop in the abrupt stop came to an abrupt vehicle came 3 [* 3] 3 of 6 FILED: WESTCHESTER COUNTY CLERK 12/20/2018 11:31 AM NYSCEF DOC. NO. 24 INDEX NO. 60037/2018 RECEIVED NYSCEF: 12/19/2018 direction]). wrong direction]). was the wrong headed in the was headed made a sudden However, "[a] claim sudden stop, stop, standing standing vehicle made lead vehicle the lead of the driver of the driver that the claim that However, "[a] contention, defendant's contention, the defendant's Thus, the alone, negligence. Thus, of negligence. presumption of the presumption rebut the insufficient to rebut alone, is insufficient light traffic light once the traffic proceeded once made plaintiff proceeded that the plaintiff motion, that plaintiffs' motion, the plaintiffs' opposition to the made in opposition providing a negligence by providing of negligence inference of the inference rebut the not rebut turned stopped, did not suddenly stopped, then suddenly but then green but turned green Dept 837 [2d Dept AD3d 837, Konstanzer, 61 AD3d non-negligent explanation for for the collision" collision" (Ramirez (Ramirez v Konstanzer, 837,837 non-negligent explanation omitted]). citations omitted]). 2009] 2009] [[citations there is no respects, there agree in all respects, not agree Here, narratives do not respective narratives parties' respective the parties' althoug~ the Here, althoug~ whether immaterial whether It is immaterial non-negligence. Itis of non-negligence. material claim of defendant's claim of fact as to defendant's issue of material issue vehicle defendant's vehicle struck by defendant's was struck and was light and plaintiff stopped at a red light been stopped had been vehicle had plaintiffss vehicle green been stopped had been cars had instead, the cars whether instead, immediately stopped at a green green, or whether turned green, light turned the light after the immediately after through a proceed through if to proceed forward as if light lurched forward vehicle lurched plaintiffs vehicle and plaintiffs ahead, and traffic ahead, heavy traffic light due to heavy conditions, traffic conditions, the traffic given the yellow light, only only to then crosswalk. In either either situation, situation, given halt at the crosswalk. then halt yellow light, \, have not have could not accelerate could commencing to accelerate after commencing the stop after complete stop come to a complete need to come possible need the possible ) ) was car was plaintiffs' car striking plaintiffs' before striking been and therefore inability to stop before defendant's inability therefore defendant's unexpected, and been unexpected, reasonable and was reasonable than was closely than necessarily more closely vehicle more plaintiffs' vehicle following plaintiffs' her following caused by her necessarily caused provided a not provided has not defendant has Accordingly, defendant prudent 1129[a]). Accordingly, Law§9 1129[a]). Traffic Law and Traffic Vehicle and prudent (see Vehicle against judgment against partial summary of partial award of showing of such as~would summary judgment prevent an award as' would prevent non-negligence such of non-negligence showing liability. her of liability. issue of on the issue her on have contributed Even if plaintiff Tedder's driving driving may arguably be said said to have contributed to the may arguably Rhonda Tedder's plaintiff Rhonda Even if not does not fault does comparative fault of comparative finding of of a finding possibility of the possibility negligence, the own negligence, her own with her accident with ·. accident Rodriguez v City of preclude award of of partial summary judgment issue of of liability liability (see Rodriguez of judgment on the issue partial summary preclude an award New York, 31 NY3d [2018]). NY3d 312 [2018]). 4 [* 4] 4 of 6 INDEX NO. 60037/2018 FILED: WESTCHESTER COUNTY CLERK 12/20/2018 11:31 AM NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 12/19/2018 motion is the motion that the defendant, that counsel for defendant, This propounded by counsel argument propounded the argument rejects the Court rejects This Court \ contends.that who contends party who conducted. "A premature since depositions "A party that a summary summary been conducted. not been have not depositions have premature since relevant lead to relevant might lead discovery might that discovery demonstrate that judgment required to demonstrate premature is required motion is premature judgment motion mere 2011] [citation evidence" (Cortes (Cortes v Whelan, 83 AD3d [citation omitted]). omitted]). "The "The mere Dept 2011] AD3d 763, 764 [2d Dept evidence" may be judgment may summary judgment motion for summary defeat a motion hope sufficient to defeat evidence sufficient that evidence speculation that hope or speculation party motion" (id.). "Before uncovered during the discovery discovery process insuffiyient to deny deny the motion" "Before a party process is insuffi9ient uncovered during unconducted facts due to unconducted of facts can ignorance of claiming ignorance judgment claiming summary judgment motion for summary defeat a motion can defeat the that the and that facts and these facts discover these discovery, steps to discover reasonable steps made reasonable has made he has that he show that must show discovery, he must Dept· AD2d 493 [2d Dept. Hemmes, 298 AD2d facts sought sought would (Gillinder v Hemmes, issue" (Gillinder triable issue" give rise to a triable would give may motion may the motion opposition to the justify opposition essential to justify 2002]). that facts essential show that fails to show here fails record here The record 2002]). The Defendant party. Defendant other party. knowledge of exclusive knowledge exist stated as they of the other the exclusive they are in the cannot be stated but cannot exist but role in party's role each party's and each events and of events sequence of the sequence has regarding the additional facts regarding what additional show what to show failed to has failed necessary have all the necesSary parties have the accident accident were already within Since the parties knowledge. Since her knowledge. within her not already were not summary preclude summary not preclude need not discovery need of discovery information absence of the absence their_cases, the out their,cases, make out information to make judgment instance. this instance. judgment in this hereby Accordingly, Accordingly, it is hereby against judgment against summary judgment partial summary ORDERED of partial award of motion for an award plaintiffs motion that plaintiffs ORDERED that granted; and it is further defendant further liability is granted; of liability issue of tlie issue defendant on the 9:30 2019, at 9:30 February 1, on February directed, on previously directed, ORDERED 1,2019, appear, as previously parties appear, the parties that the ORDERED that Martin a.m., at the Compliance Compliance Part of the Westchester County Courthouse Courthouse located located at 111 Dr. Martin Westchester County Part of a.m., York, 10601. New York, Plains, New Luther White Plains, Boulevard, White King Jr. Boulevard, Luther King 5 [* 5] 5 of 6 FILED: WESTCHESTER COUNTY CLERK 12/20/2018 11:31 AM NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 12/19/2018 J J This constitutes constitutes the Decision Decision and and Order Order of of he Court. Court. This Dated: White White Plains, Plains, New York Dated: New York 2018 December December 2018 J!/-, L!J-, 6 [* 6] INDEX NO. 60037/2018 6 of 6
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