Irvin v Queens Borough Corp.
Annotate this CaseDecided on March 21, 2018
Supreme Court, Bronx County
Stacey Irvin, Plaintiff,
against
Queens Borough Corporation, Mohamed R. Islam, and Lucas Jessie Berger, Defendants.
20802/2015E
Counsel for Plaintiff:
Law Office of Christina T. Hall & Assoc., PLLC
(Christina T. Hall, Esq.)
Counsel for defendant Berger:
Kelly, Rode & Kelly, LLP
(Matthew S. De La Torre, Esq.)
Counsel for defendants Queensborough Corp. and Islam:
Saretsky, Katz & Dranoff, LLP
(Jonah S. Zwieg, Esq.)
Mary Ann Brigantti, J.
The following papers numbered 1 to 7 read on the below motion noticed on October 16, 2017 and duly submitted on the Part IA15 Motion calendar of November 30, 2017:
Papers Submitted Numbered
Berger's Notice of Motion, Exhibits 1,2
Def. Aff. In Opp., Exhibits 3,4
Pl.'s Aff. In Opp. 5
Berger's Reply Aff., Exhibits 6,7
Upon the foregoing papers, the defendant Lucas Jessie Berger ("Berger") moves for summary judgment, dismissing the complaint of the plaintiff Stacey Irvin ("Plaintiff") as well as any and all cross-claims, pursuant to CPLR 3212. Plaintiff and co-defendants Queens Borough Corporation and Mohammed R. Islam (collectively, "Islam") oppose the motion.
This matter arises out of an alleged three-vehicle "chain reaction" motor vehicle accident that occurred on the southbound Van Wyck Expressway near 91st street in Queens, New York.
It is not disputed that at the time of the incident, Plaintiff was operating the lead vehicle, defendant Berger was operating a Jeep vehicle directly behind Plaintiff (or the "middle" vehicle), [*2]and Islam was operating the rear-most vehicle, a black SUV, traveling directly behind Berger.
Berger testified that prior to the accident, traffic in front of him was slowing down, so he applied his brakes and came to a complete stop without contacting any vehicles. While he was stopped, he looked into his rear view mirror and saw a black SUV approaching at a high rate of speed. Berger said that he then attempted to move his vehicle into the right lane, but as he tried to do that, the SUV struck him in the rear and propelled his vehicle forward 10-15 feet. As a result of this impact, his vehicle came into contact with the vehicle in front of him. Plaintiff testified that she was stopped in traffic on the highway for approximately two minutes when a Jeep pulled up and stopped behind her. Plaintiff testified that thereafter, a black SUV "crashed into the Jeep and the Jeep crashed into me" (Pl. EBT at 25-26). She stated that her vehicle was impacted once (id at 27). Islam testified that prior to this accident, the Jeep traveling in front of him, and a "sedan" traveling in front of the Jeep, were involved in an accident. He testified that as a result, the Jeep stopped suddenly and tried to move to the right. Islam applied his brake and blew his horn, and tried to move to the left lane, but he could not avoid the impact. Islam later admitted that he did not actually see the Berger vehicle impact the lead vehicle before the Berger vehicle suddenly stopped. Berger now moves for summary judgment, alleging that he cannot be liable for Plaintiff's injuries under the circumstances of this accident.
To be entitled to the "drastic" remedy of summary judgment, the moving party "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact from the case." (Winegrad v. New York University Medical Center, 64 NY2d 851 [1985]; Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395 [1957]). The failure to make such prima facie showing requires denial of the motion, regardless of the sufficiency of any opposing papers. (Id., see also Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986]). Facts must be viewed in the light most favorable to the non-moving party (Sosa v. 46th Street Development LLC., 101 AD3d 490 [1st Dept. 2012]). Once a movant meets his initial burden, the burden shifts to the opponent, who must then produce sufficient evidence, also in admissible form, to establish the existence of a triable issue of fact (Zuckerman v. City of New York, 49 NY2d 557 [1980]). When deciding a summary judgment motion the role of the Court is to make determinations as to the existence of bonafide issues of fact and not to delve into or resolve issues of credibility (Vega v. Restani Constr. Corp., 18 NY3d 499 [2012]). If the trial judge is unsure whether a triable issue of fact exists, or can reasonably conclude that fact is arguable, the motion must be denied. (Bush v. Saint Claire's Hospital, 82 NY2d 738 [1993]).
"It is well settled that a rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the driver of the rear vehicle, and imposes a duty on the part of the operator of the moving vehicle to come forward with an adequate non-negligent explanation for the accident" (see Cabrera v Rodriguez , 72 AD3d 553 [1st Dept. 2010] citing Tutrani v County of Suffolk , 10 NY3d 906, 908 [2008]; Agramonte v City of New York 288 AD2d 75, 76 [1st Dept. 2001]; see also Dattilo v Best Transp. Inc 79 AD3d 432 [1st Dept. 2010]). Furthermore, "[i]n a chain reaction collision, responsibility presumptively rests with the rearmost driver" (see Mustafaj v. Driscoll, 5 AD3d 138 [1st Dept. 2004][internal citations omitted]).
Generally, the sudden stop of the lead vehicle, alone, is not a sufficient "non-negligent [*3]explanation" for a rear-end collision (see Francisco v. Schoepfer, 30 AD3d 275 [1st Dept. 2006]; Androvic v. Metropolitan Transp. Auth., 95 AD3d 610 [1st Dept. 2012]). The First Department has "repeatedly so held, particularly when the defendant driver fails to explain why he or she did not maintain a safe following distance" (see Morgan v. Browner, 138 AD3d 560 [1st Dept. 2016]). However, a sudden stop of the lead vehicle may raise an issue of fact as to that driver's comparative fault where the rear-most driver "could have 'reasonably expect[ed] that traffic would continue unimpeded,'" for example, where traffic had been otherwise flowing smoothly (see Baez-Pena v. MM Truck and Body Repair, Inc., 151 AD3d 473, 477 [1st Dept. 2017], quoting Tutrani v. County of Suffolk, 10 NY3d 906, 907 [2008]; see also Berger v. New York City Housing Authority, 82 AD3d 531 [1st Dept. 2011]). The First Department in Baez-Pena noted that it was unaware of a case where a sudden stop by a vehicle on a highway, under normal traffic conditions, resulted in summary judgment in favor of that vehicle (id. at 476).
In this case, Islam's testimony raises issues of fact as to whether he reasonably expected traffic on the highway to continue unimpeded and whether Berger's alleged sudden stop and attempted lane change prior to the impact contributed to this accident. Islam testified that there was "no traffic" and "all the cars were moving fast" on the highway when he first entered it (Islam EBT at 32), and he had been traveling behind Berger's Jeep at a distance of about 8-10 feet before the accident occurred (id. at 37). Islam testified that prior to the accident, the Jeep and a sedan in front of the Jeep, "had an impact." Islam then applied his brake but "it was already too close" (id. at 38). Islam said that he became aware that the Jeep had impacted the sedan because he "saw the Jeep in front of [him] suddenly stop and slightly angled towards right, and then [he] applied [his] brake and tried to go left" (id. at 38-39). At the time the Jeep suddenly stopped, the traffic conditions were "medium, moderate" (id). Islam said that before the accident, he had been traveling behind the Jeep at about 40-50 miles per hour, approximately 8-10 feet behind, (id at 41-42). About 2-3 minutes later, after traveling at the same speed and at the same distance apart, he noticed the Jeep suddenly stop and move an at angle, and Islam applied his brakes "so hard" tried to go left but could not avoid the impact (id at 43-44, 47). The foregoing testimony demonstrates that Berger's alleged sudden stop may have contributed to this accident, as under the specific circumstances of this case, Islam reasonably expected traffic to continue moving normally on the highway, and he had no reason to "exercise more than usual vigilance in order to avoid a collision" (see Baez-Pena v. MM Truck and Body Repair, Inc., 151 AD3d at 477; Tutrani, 10 NY3d at 907). The Court reaches this conclusion even without crediting Islam's testimony and affidavit alleging that there was a prior impact between Berger and the lead vehicle, as he admitted that he did not see any impact between those vehicles, and the only basis for this knowledge was the fact that the Jeep came to a sudden stop (Islam at 51:6-14).
Contrary to Islam's contentions, this motion is not barred by the doctrine of collateral estoppel because Berger was not a party to this action when the prior motion was decided, thus he did not have a full and fair opportunity to litigate the issue (see Ryan v. New York Telephone Co., 62 NY2d 494, 501 [1984]).
Accordingly, it is hereby
ORDERED, that Berger's motion for summary judgment is denied.
This constitutes the Decision and Order of this Court.
Dated: March 21, 2018
Hon. Mary Ann Brigantti, J.S.C.
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