Anderson v Singh

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Anderson v Singh 2019 NY Slip Op 34213(U) December 17, 2019 Supreme Court, Westchester County Docket Number: 58229/2016 Judge: Sam D. Walker 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: 1] WESTCHESTER COUNTY CLERK 12/17/2019 04:55 PM NYSCEF DOC. NO. 545 INDEX NO. 58229/2016 RECEIVED NYSCEF: 12/17/2019 commence the the statutory statutory To commence time for for appeals appeals as of of right right time (CPLR 5513[a]), 5513[a)), you you are are (CPLR advised to to serve serve a copy copy advised of this this order, order, with with notice notice of of entry, entry, upon upon all all parties. parties. of SUPREME COURT COURT OF THE THE STATE STATE OF NEW NEW YORK YORK SUPREME WESTCHESTER COUNTY COUNTY WESTCHESTER PRESENT: HON. HON. SAM SAM D. WALKER, WALKER, J.S.C. J.S.C. PRESENT: x -----------------------------------------------------------------------x MAXINE BENT BENT ANDERSON ANDERSON and HEATHER HEATHER MAXINE BENT-TAMIR, BENT-TAMIR, DECISION & ORDER ORDER DECISION Plaintiff, Plaintiff,. Index No. 58229/2016 58229/2016 Index Seq. # 10 Seq.# -against-against- GURMEET SINGH, SINGH, NISHAN NISHAN SINGH, SINGH, BERNARD BERNARD GURMEET MORCHELES, and JOHN JOHN DOES DOES 1-5 (hereinafter (hereinafter MORCHELES, "JOHN DOE") DOE") a fictitious fictitious name name for for the individuals individuals or "JOHN entities which which hired, hired, employed employed or otherwise otherwise contracted contracted entities with Deferidant(s) Deferidant(s) at the the time time of of the the subject subject incident incident with responsible by way way of of vicarious vicarious liability, liability, and is responsible respondeat superior superior or otherwise otherwise for for the the acts acts and respondeat omissions alleged alleged herein herein and/or and/or negligently negligently repaired, repaired, omissions managed, maintained, maintained, controlled, controlled, entrusted, entrusted, and/or and/or managed, owned the the subject subject vehicles vehicles described described below below and owned involved in the the subject subject incident incident and whose whose identity identity is involved presently known known only only to the Defendant(s), Defendant(s), presently to the Defendants. Defendants. -------------------x -----------------------------------------------------------------------x " The following following papers papers were were read and considered considered in deciding deciding the the present present motion: motion: The Notice of of Motion/Affirmation/Exhibits Motion/Affirmation/Exhibits A-M A-M Notice Affirmations in Opposition Opposition Affirmations Reply Affirmation Affirmation Reply 1-15 1-15 16-17 16-17 18 Upon the the foregoing foregoing papers papers it is ordered ordered that that the the motion motion is GRANTED. GRANTED. Upon FACTUAL AND PROCEDURAL BACKGROUND FACTUALANDPROCEDURALBACKGROUND The plaintiffs, plaintiffs, Maxine Maxine Bent Bent Anderson Heather Bent-Tamir Bent-Tamir commenced The Anderson and Heather commenced this action on May 7, 2015 New York recover monetary monetary damages action 2015 in New York County, County, to recover damages for for alleged alleged 1 of 7 [*FILED: 2] WESTCHESTER COUNTY CLERK 12/17/2019 04:55 PM NYSCEF DOC. NO. 545 INDEX NO. 58229/2016 RECEIVED NYSCEF: 12/17/2019 injuries injuries sustained sustained in a motor motor vehicle vehicle accident occurred on December December 8, 2013 2013 at or accident that that occurred near the intersection Avenue and West Street in New New York near the intersection of of 12thth Avenue West 57thth Street York City. At the the time time of the the accident, accident, the the plaintiffs plaintiffs were were passengers passengers in a taxi operated operated by the the defendant, defendant, Gurmeet owned by the the defendant defendant Nishan Gurmeet Singh Singh and owned Nishan Singh, Singh, and and such struck in such taxi was was struck the rear rear by a vehicle vehicle owned owned and operated operated by the the defendant, defendant, Bernard Bernard Morcheles Morcheles ("Morcheles ("Morcheles")").. By Decision Decision and Order Order entered entered on May 19, 2016, 2016, the New York Supreme Cou,~ Cou~ the New York Supreme transferred venue Westchester County. transferred venue to Westchester County. Then, about October October 20, 2016, 2016, Then, on or about Fiduciary Fiduciary Insurance Insurance Company Company of America Maxine Bent-Anderson Bent-Anderson commenced commenced a America AlSIO A/S/O Maxine subrogation subrogation action action (Index (Index No. 19203/2016) 19203/2016) Queens County County against against Bernard Bernard in Queens Morcheles, the same same accident, Morcheles, with regard regard to the accident, seeking reimbursement for seeking reimbursement for Additiona'i Additiona:I Personal Personal Injury Injury Protection Protection benefits benefits paid to or on behalf behalf of of Maxine Maxine Bent-Anderson. Bent-Anderson~ By Decision and Order dated and entered entered on December DeCision and Order dated Court:~Wanteda'a December 7, 2018, 2018, this this Courf'granted motion motion to transfer transfer the subrogation subrogation action action to this this Court Court and join the actions actionsf8r" join the to/ th~ purposes purposes of discovery discovery and trial. The defendant, The defendant, Gurmeet Gurmeet Singh Singh and Nishan Nishan Singh Singh now now file the instant motion motion for the instant summary judgment judgment pursuant summary pursuant to CPLR CPLR 3212, seeking seeking dismissal dismissal of of the complaint complaint against against them on the the ground that they they are not liable them ground that liable because because their their taxi was was hit in the the rear. The The defendants defendants argue argue that that the the occupants occupants of of the front vehicle are entitled entitled to front vehicle summary judgment judgment unless the rear driver can provide summary unless the rear driver provide a non-negligent non-negligent explanation. explanation. The The Singhs Singhs further further argue argue that that a sudden sudden stop stop by the the front vehicle is not a non-negHg~nt front vehicle non-negllg~nt explanation explanation for for a rear rear end end collision. collision. The' plaintiffs filed an affirmation The' plaintiffs filed affirmation in opposition, opposition, stating stating that passegger~ that they they were were passegger~ 2 of 7 ' .. .";" .. [*FILED: 3] WESTCHESTER COUNTY CLERK 12/17/2019 04:55 PM NYSCEF DOC. NO. 545 INDEX NO. 58229/2016 RECEIVED NYSCEF: 12/17/2019 in the taxi, which when it was rear-ended They which was was fully fully stopped stopped when rear-ended by Morcheles' Morcheles' vehicle. vehicle. They finds assert matter of law, however, assert that that Morcheles Morcheles is liable liable as a matter however, in the the event event the Court Courtfinds Singhs' liability causing and/or a question question of fact fact exists exists as to the Singhs' liability in causing and/or contributing contributing to .the .th~ occurrence they request occurrence of the collision, collision, they request that that the Court Court deny deny the motion motion for for summary summary judgment. judgment. Morcheles testimony Morcheles also also opposes opposes the motion, motion, asserting asserting that that the the deposition. depositiontestimol1Y submitted submitted by the Singhs Singhs in support support of their their motion, motion, is conflicting conflicting and demonstrates demonstrates the existence of triable triable issues issues of material material fact, including, including, (a) whether the traffic traffic light facing facing whether the existence drivers of the two vehicles involved in the accident was yellow yellow or red at the time time of vehicles involved accident was the drivers the accident; whether the taxi entered accident; (b) whether entered the intersection intersection and then then stopped stopped in in the middle middle of the intersection intersection in violation violation of the Vehicle Vehicle and Traffic Traffic Law § ~ 1202(a)(1.)(6), 1202(a)(1')(6), which which would would constitute constitute negligence negligence per se and in violation violation of of the highway highway rules of the New York York City City Department Department of Transportation, Transportation, which which would would constitute constitute evidence evidence' of Gurmeet Singh's negligence; negligence; and (c ) the number number of impacts impacts that that occurred occurred during duri~g the Gurmeet Singh's accident. accident. Discussion Discussion "[T]he proponent of a summary judgment motion must make a prim,f fade showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" (see Alvarez v ProspectHo;,s., ., 68 NY2d. when such NY2d' 320, 324 [1986]). [1986]). Only Only when such a showing showing has been been made made must must the opposing party party set forth forth evidentiary evidentiary proof proof establishing establishing the existence existence of a material material issue issue opposing Winegrad v New New York Univ. Med. Ctr., Glr., 64 NY2d 851, 853 [1985]). [1985]). of fact, Winegrad 3 of 7 [*FILED: 4] WESTCHESTER COUNTY CLERK 12/17/2019 04:55 PM NYSCEF DOC. NO. 545 INDEX NO. 58229/2016 RECEIVED NYSCEF: 12/17/2019 "i' ,: Liability Liability rear-end collision collision with a stopped stopped or stopping stopping vehicle vehicle creates creates a prima prima fa?ie fa?ie "A rear-end case of of negligence negligence with with respect respect to the operator operator of of the the moving moving vehicle, vehicle, and imposes imposes(;l'_c:t · case duty on that that operator operator to rebut rebut the the inference inference of of negligence negligence by providing non negligent duty providing a nonnegligent explanation for for the the collision" collision" (see (see Sokolowska Sokolowska v Song, Song, 123 AD3d AD3d 1004 1004 [2d Dept Dept 2014]); 2014]); explanation v v see a/so also Agramonte City of of New New York, 288 288 AD2d AD2d 75, 76 [2001]; [2001]; Johnson Johnson v Phillips, Phillips, see Agramonte v City 261AD2d 269, 271 [1999]; [1999]; Danza Danza v Longieliere, Longieliere, 256 256 AD2d AD2d 434, 434, 435 435 [1998], [1998], Iv 261 AD2d 269, dismissed 93 NY2d NY2d 957 957 [1999]). [1999]). dismissed this case, case, the the plaintiffs plaintiffs have have made made out out a prima prima facie facie showing showing of of his entitlement entitlement In this summary judgment with regard regard to liability. liability. The The evidence evidence submitted submitted by them them to summary judgment with es~abHshes entitlement entitlement to summary summary judgment matter of of law, thereby thereby shifting shifting the the es~ablishes judgment as a matter burden to Morcheles Morcheles to demonstrate demonstrate the the existence existence of of a factual factual issue issue requiring requiring a burden tii~i tti~i Macauley v Elrac, Elrae, Inc., 6 AD3d AD3d 584, 585 [2d Dept Dept 2004]) 2004]) [Rear-end [Rear-end collisiorf collision'isi~ (see Macauley sufficient sufficient to create create a prima prima facie facie case case of of liability.] liability.] If the the operator operator of of the the strikirig striking ~e-hid~ Vehid~ , , fails to rebut rebut this this presumption presumption and the the inference inference of of negligence, negligence, the the operator operator ·of of the fails stopped vehicle vehicle is entitled entitled to summary summary judgment the issue issue of of liability liability {see (see leonard:\i Leont3'rd'v stopped judgment on the City of of New New York. 273 273 AD2d AD2d 205 205 [2d Dept Dept 2000]; 2000]; Longhito Longhito v Klein. 273 273 AD2cf AD2cf 28;1' 28'1' [2:d [2'd City Dept 2000]; 2000]; Velasquez Velasquez v Quijada. Quijada. 269 269 AD2d AD2d 592 [2d Dept Dept 2000]; 2000]; Brant Brant v Senatobia Senatobia Dept Operating Corp., 269AD2d 269AD2d 483 483 [2d Dept Dept 2000]). 2000]). Operating opposition, Morcheles' Morcheles' attorney attorney argues argues that that the Singhs have not met metth~if In opposition, Singhs have th~ii burden establishing their their entitlement entitlement to summary summary judgment reco~d burden of establishing judgment and that that the record presents issues issues of fact. The attorney argues argues'that deposition testimony testimony is conflicting conflicting The attorney 'that the deposition presents , 4 of 7 .. ,';. [*FILED: 5] WESTCHESTER COUNTY CLERK 12/17/2019 04:55 PM NYSCEF DOC. NO. 545 INDEX NO. 58229/2016 RECEIVED NYSCEF: 12/17/2019 demonstrates the the existence existence of of triable triable issues issues of of material material fact, fact, including, including, (a) (a) w_hether whether and demonstrates the traffic traffic light light facing facing the the drivers drivers of of the the two two vehicles vehicles involved involved in the the accident accident was wasy~lIow the _y~llow the time time of of the the accident; accident; (b) whether whether the the taxi entered entered the the intersection intersection and then then or red at the stopped in the the middle middle of of the the intersection intersection in violation violation of of the the Vehicle Vehicle and Traffic Traffic Lay,i LaW § S stopped 1202(a)(1)(c), which which would would constitute constitute negligence negligence per per se and in violation violation of of the the hig~w~.Y highw9Y 1202(a)(1)(c), . . ' rules of of the the New New York York City City Department Department of of Transportation, Transportation, which which would would constitut~ constitute rules evidence of of Gurmeet Gurmeet Singh's Singh's negligence; negligence; and (c ) the the number number of of impacts impacts that that occurred occurred evidence during the the accident. accident. during New York York Vehicle Vehicle and Traffic.Law§ Traffic Law S 1129 1129 states states in pertinent pertinent part part that: that: New The driver driver of of a motor motor vehicle vehicle shall shall not not follow follow another another vehicle vehicle more more closely closely The than than is reasonable reasonable and prudent, prudent, having having due due regard regard for for the the speed speed of of such,; su~h,~...... ',; ·. vehicles and the traffic upon and the condition of the highway. NY VTL §·:-: · vehicles the traffic upon condition the highway. VTL S .. '· · 1129 (a) 1129 '/"-,':~ ; ~ ·-") ~-'..' .• ',"'. (Leal v Wolff), the the Second Second Department Department held that that "[s]ince "[s]ince the the defendant defendant ;wC!~ . In (Leal .wa~ : .-.• - ;,_:' ,11 '. under a duty duty to maintain maintain a safe safe distance distance between between his car car and [the plaintiffs]. plaintiff's] car car .(see (see~:. under ',:" :· . '-. Vehicle Vehicle and Traffic Traffic Law Law Section Section 1129[a]), 1129[a]), his failure failure to do do so in absence absence of of a '.-.nqn non . negligent explanation explanation constituted constituted negligence negligence as a matter matter of of law" law" negligent ' _; (Leal v Wolf.. WQIf..224 (Leal _224 • AD2d 392 [2d Dept Dept 1996]). 1996]). AD2d _: • .• .: : • I!. • •. t,~'... . .. .' - · . •• ~-• Further, "[w]hen "[w]hen the the driver driver of of an automobile automobile approaches approaches from from the the rear, he or she Further, bound to maintain maintain a reasonably reasonably safe safe rate of of speed speed and control control over over his or her her vehicle, vehicle, is bound exercise reasonable reasonable care care to avoid avoid colliding colliding with with the the other other vehicle" vehicle" (see Zweeres Zweeres and to exercise AD3d 1111 [2d Dept Dept 2012]). have a duty v Materi, 94 AD3d 2012]). "Drivers "Drivers have duty to see what what should should be seen and to to exercise exercise reasonable reasonable care under the circumstances seen care under circumstances to avoid avoid an accident" accident" (Id:). (Id.). 5 of 7 [*FILED: 6] WESTCHESTER COUNTY CLERK 12/17/2019 04:55 PM NYSCEF DOC. NO. 545 INDEX NO. 58229/2016 RECEIVED NYSCEF: 12/17/2019 Morcheles fails fails to offer offer any any non-negligent non-negligent explanation explanation for for the accident accident and Here, Morcheles opposition does does not create create any issues issues of of fact fact with regard regard to liability. liability. The The fa~t that that the opposition Morcheles rear rear ended ended the Singhs' Singhs' vehicle, vehicle, demonstrates demonstrates that that he was following too Morcheles was following closely. The The testimony testimony established established that that the taxi was stopped when vehicle was closely. was stopped when the vehicle was struck in the the rear. The The issues issues raised raised by Morcheles Morcheles of whether whether the taxi stopped stopped in the struck intersection, whether whether the light light was was red or yellow, yellow, and whether whether there there were were two two impact,s, impact,g, intersection, does not create create any any issue issue of fact fact as to his liability liability and do not affect affect the the proximate proximate cause cause does accident. of the accident. Further,"[w]hile a nonnegligent nonnegligent explanation explanation for for a rear-end rear-end collision collision may may include include Further,"[w]hile evidence of a sudden sudden stop stop of the lead vehicle, vehicle, 'vehicle 'vehicle stops stops which foreseeable which are foreseeable evidence under the prevailing prevailing traffic traffic conditions, conditions, even even if sudden sudden and frequent, frequent, must must be anticipated anticipated under driver who since he or she is under under a duty duty to maintain maintain a safe safe distance distance by the driver who follows, follows, since between his or her car car and the car ahead'" ahead'" (Tumminello (Tumminello v City City of of New New York, 148 AD3d AD3d between 1084, 1085 1085 [3d Dept Dept 2017]). 2017]). Even if the taxi came came to a sudden sudden stop stop at the intersection's intersection's 1084, yellow or red light, Morcheles Morcheles should should have anticipated anticipated that that it might might come come to a stop stop (Id} (ld) ·.. yellow . Therefore, based based on all the foregoing, foregoing, it is ·. Therefore, · ORDERED judgment on the issue ORDERED that that the Singhs' Singhs' motion motion for for summary summary judgment issue of liabil1t~ Irabillt~ GRANTED, and -it .it is further further is GRANTED, ORDERED that that the complaint complaint against against Gurmeet Gurmeet Singh Singh and and. . Nishan Nishan' · Singh Singh is ORDERED dismissed. dismissed. The parties parties are directed directed to appear appear before before the Settlement Settlement Conference Conference Part' Part' iri in The Courtroom 1600 1600 on January January 14, 2020 2020 at 9:15 a.m. Courtroom 6 of 7 [*FILED: 7] WESTCHESTER COUNTY CLERK 12/17/2019 04:55 PM NYSCEF DOC. NO. 545 INDEX NO. 58229/2016 RECEIVED NYSCEF: 12/17/2019 The constitute the Decision The foregoing foregoing shall shall constitute Decision and Order Order of the the Court. Court. Dated: Dated: White White Plains, Plains, New York York December December JJ 2019 2019 1·l' ~J.~ HON. SAM D. WALKER WALKER 7 of 7

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