Jooyoul Oh v Caceres

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Jooyoul Oh v Caceres 2019 NY Slip Op 34873(U) November 14, 2019 Supreme Court, Bronx County Docket Number: Index No. 31733/2017E Judge: John R. Higgitt 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. INDEX NO. 31733/2017E FILED: BRONX COUNTY CLERK 11/14/2019 03:43 PM NYSCEF DOC. NO. 29 NEW YORK SUPR EME COU RT - CO SUPREME COU RT OF THE STATE OF COU TY OF BRONX: PART 14 NYSCEF: Mtn . eq. 11/14/2019 # Ql TY OF BRO RECEIVED X EW YORK -------------------------------------------------------------------X Index N~. 31733/2017E OH, JOOYOUL, et ano - against - I Ion. JOH R. HIGGITT. A.J .S.C. CACERES,YELFRYJEREZ --------------------------------------------------------------------X The fol lowing papers in the NYSCEF ystem were read on this motion for SUMMARY JUDGMENT (LIABILITY) . noticed on November 4, 2019 and du ly submitted as o. 27 on the Motion Ca lendar of November 4,, 2019 NYS CEF Doc . Nos. 12-22 Noti ce of Motion - Ex hib its and Affidav its Ann exed 24 Notice of Cross-Motion - Exhib its and Affidavits Annexed An swering Affidavit and Ex hibits 23, 28 Rep lyin g Affidavit and Ex hib its 26-27 Filed Papers Memoranda of Law Stipul ation Upon the foregoing papers. the moti on of plaintiff .l ooyou l Oh for summary judgment dismissing defendant' s counterclaim is granted. and the cross motion of plaintiffs for partial summary judgment on the issue of defendant' s liability for causing the subject motor ve hicl e accident is granted. in accordance with the annexed decision and order. Dated : 11/14/2019 Check one: • Case Di sposed in Enti rety C!J [* 1] Case Still Active Motion is: Check if a ppr, priate: Granted • GIP • Denied • Other • Schedule Appearance • Fiduciary Appointment • Refere e Appointment C!J 1 of 6 • Settle Order • Submit Order FILED: BRONX COUNTY CLERK 11/14/2019 03:43 PM NYSCEF DOC. NO. 29 INDEX NO. 31733/2017E RECEIVED NYSCEF: 11/14/2019 SUPREME COURT OF THE ST A TE OF NEW YORK COUNTY OF BRONX: I.A.S . PART 14 ----------------------------------------------------------------------X JOOYOUL OH and JOUNG HEE OH Plaintiffs, - against - DECISION A D ORDER Lndex No. 31733/2017E YELFR Y JEREZ CACERES Defendant. ----------------------------------------------------------------------X John R. Higgitt, J. Upon the September 23 , 2019 notice of motion of plaintiff Jooyoul Oh and the affirmation, exhibits and memorandum of law submitted in support thereof- plaintiffs' October 16 2019 notice of cross motion and the affimrntion submitted in support thereof; defendant' s October 3, 2019 and October 21, 2019 affirmations in opposition· plaintiff Jooyoul Oh ' s October 18, 2019 affirmation in reply; and due deliberation; the motion of plaintiff Jooyoul Oh for summary judgment dismissing defendant ' s counterclaim is granted, and the cross motion of plaintiffs for partial summary judgment on the issue of defendant's liability fo r causing the subject motor vehicle accident is granted. In support of the motion plaintiff Jooyoul Oh submits the transcripts of the parties· deposition testimony and the police accident report. In support of their cross motion, plaintiffs adopt the arguments and proof of plaintiff Jooyoul Oh' s motion. According to the testimony highlighted by plaintiff Jooyoul Oh, plaintiffs testified that Jooyoul Oh brought his vehicle to a stop at a stop sign before attempting to turn right and was rear-ended by defendant' s vehicle while making the turn. Defendant testified that the front passenger side of his vehicle struck the left side of plaintiffs' vehicle. Although the accident report wa not certified, it contains a statement, ostensibly attributable to defendant, admitting that he struck plaintiffs' vehicle whi le hying to go around it. [* 2] 2 of 6 FILED: BRONX COUNTY CLERK 11/14/2019 03:43 PM NYSCEF DOC. NO. 29 INDEX NO. 31733/2017E RECEIVED NYSCEF: 11/14/2019 Such statement is admissible as a pa1ty admission ( ·ee Liburd v Lulgjuraj, 156 AD3d 532 [1 st Dept 2017]' Pivetz v Brusco 145 AD3d 806 [2d Dept 20 I 6]' Jackson v Tru ·t, 103 AD3d 851 [2d Dept 2013]; Penn v Kirsh , 40 AD2d 814 [1st Dept 1972]' see al o Delgado v Martinez Family Auto, 113 AD3d 426 [1st Dept 2014]). In opposition defendant asserts that there are issues of fact as to hi and plaintiff Jooyoul Ob ' s negligence. He points to plaintiffs ' testimon y that they did not see the vehicle that struck their vehicle from behind prior to the accident. Defendant also points to his own testimony that the accident occurred because " plaintiff became frightened and reacted to a vehicle that wa exiting from the parking lot located in front of the stop sign"' at the comer (see October 3, 20 19 Noll affirmation at para. 10 and October 2 1, 20 19 oil affi rmation at para. 9). Defendant testified that the accident occurred whil e he was traveling at approximately one to two mile per hour. "A rear-end coll ision w ith a stationary ve hicle creates a prima facie case of negligence requiring a judgment in favor of the stationary vehicle unless defendant proffers a nonnegligent explanation for the failure to maintain a afe distance . .. A driver is expected to drive at a sufficiently safe speed and to maintain enough distance between him elf [or her elf] and cars ahead of him [or her] so as to avoid collisions with stopped ehicl es, taking into account weather and road conditions·' (LaMasa v Bachman 56 AD3d 340,340 [1 st Dept 2008]). The happening of a rear-end collision is itself a prima fa.c ie case of negligence on the part of the rearmost driver in a chain confronted with a stopped or stopping vehicle (see Cabrera , Rodriguez, 72 AD3d 553 [ I st Dept 201 O]). The general rule regarding liabiJity fo r rear-end accidents '·has been applied when the front vehicle stops suddenly in slow-moving traffi c; even if the sudden top is repetitive· when 2 [* 3] 3 of 6 FILED: BRONX COUNTY CLERK 11/14/2019 03:43 PM NYSCEF DOC. NO. 29 INDEX NO. 31733/2017E RECEIVED NYSCEF: 11/14/2019 the front vehicle although in stop-and-go traffic stopped while crossing an intersection· and when the front car stopped after having changed lanes ' (Johnson v Phillips, 261 AD2d 269, 271 1 [1st Dept 1999]). The sudden stop of the lead vehicle, without more (see Cabrera supra) "is generally insufficient to rebut the presumption of non-neg) igence on the part of the lead vehicle'· (Woodley v Ramirez, 25 AD3d 451 452 [1st Dept 2006] [citations omitted]). The fact that the lead vehicle is stopped when rear-ended is prima facie evidence that its driver was not negligent (see Falcone v Darius 160 ADJd 578 [1st Dept 2018]). Th us the claim of the sudden stop of the lead vehicle, without more, is insufficient to overcome the dual pre umptions of the negligence of the rear driver and the non-negligence of the front driver (see Giap v Hat hi on Pham 159 ADJd 484 [1st Dept 2018]). 'A driver of a vehicle approaching another ehicle from the rear i required to maintain a reasonably safe distance and rate of speed under the prevailing conditions to avoid colliding with the other vehicle" (Nsiah-A babio v Hunter, 78 ADJd 672 672 [2d Dept 201 OJ; see also Vehicle and Traffic Law§ 1129[a]; iyazov v Hunter EMS, Inc., 154 ADJd 954 [2d Dept 2017] ; Service v McCoy, 131 ADJd 1038 [2d Dept 2015]). Vehicle and Traffic Law§ l 129(a) states that a "driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon and the condition of the highway" (see Darmento v Pacific Molasse · Co. 81 NY2d 985 , 988 [1993]). Based on tlie plain language of the statute, a violation is clear when a driver follows another too closely without adequate reason and that conduct resu lts in a collision (. ·ee id. ). Responsibility presumptively rest with the rear-most driver in a rear-end motor vehicl collision (see Mu 1afaj v Driscoll, 5 AD3d 138 [1st Dept 2004]). The presumption of the neg Iigence of the rear driver ha been applied where the 3 [* 4] 4 of 6 FILED: BRONX COUNTY CLERK 11/14/2019 03:43 PM NYSCEF DOC. NO. 29 INDEX NO. 31733/2017E RECEIVED NYSCEF: 11/14/2019 have started to move from a stop at a traffic control device (see e.g. Brown v Smalls, 104 AD3d 459 [1st Dept 2013)- Savarese v Cerrachio, 79 AD3d 725 [2d Dept 2010]) . Defendants explanation "that the plaintiff proceeded [after turning right at a stop sign) but then suddenly stopped, did not rebut the inference of negligence by pro iding a non-negligent explanation for the collision ' (Ramirez v Konstanzer, 61 AD3d 837, 837-38 [2d Dept 2009]; ee also Rodriguez ""· v Budget Rent-A-Car Sys. , Inc. , 44 AD3d 216 [1st Dept 2007]). Thus " [a]lthough [defendant's] version of the events leading to the subject rear-end collision differed from the [plaintiffs] version of events [defendant' s] version of events even if accepted a true, did not raise a triable issue of fact as to the existence of a nonnegligent explanation for the rear-end collision" (CajasRomero v Ward 106 AD3d 850 [2d Dept 2013 ]). Defendant has thus failed to rebut the presumption of his negligence and the presumption of plaintiff Jooyoul Oh ' s non-negligence (se e Dattilo v Best Transp. Inc. 79 AD3d 432 [1st Dept 2010]- see also Buchanan v Keller, 169 AD3d 989 992 [2d Dept 2019] [" [defendants] testimony [that plaintiffs vehicle stopped suddenly after moving from a stopped position when the traffic signal turned green] amounted to a claim that the plaintiffs vehicle came to a sudden ' stop which, standing alone, was insufficient to rebut the presumption of negligence on the part o the defendants ' vehicle' ]; Little v Marmo , I 68 AD3d 433 [1st Dept 2019] ; Vasquez v Chimborazo , 155 AD3d 432 [1st Dept 2017]; Torres v Kalmar 136 AD3d 457 [I st Dept 2016]), particularly because he testified that he was travelling at minimal speed at the time of the accident. The court notes that the accident is alleged to have occurred on a local public roadway ithin the City of ew York (see Animah 1 Agyei 63 Misc 3d 783 [ up Ct, Bronx County 2019]). Any differences in the parties ' factual recitation do not raise material issues of fact ( ·ee 4 [* 5] 5 of 6 INDEX NO. 31733/2017E FILED: BRONX COUNTY CLERK 11/14/2019 03:43 PM NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 11/14/2019 Ohlhausen v City of New York, 73 AD3d 89 [1st Dept 2010]; Lizardo v Board of Educ. of the City ofN. Y. , 77 AD3d 437 [l st Dept 201 O]) 1 and do not provide a basis for finding that plaintiff Jooyoul Oh was at fault (see Lopez v Morel- Ulla , 144 AD3d 504 [1st Dept 2016]). Defendant s failure to observe traffic conditions and maintain a safe stopping distance behind plaintiffs' vehicle proximately caused the accident (see Malon e v Mod/lo 6 AD3d 324 [1st Dept 2004] [citations omitted]). The court notes that plaintiffs did not seek (and the court has not considered) dismissal of defendants affirmative defense(s) regarding plaintiffs culpable conduct (see CPLR 2214[a] ; cf Poon v Nisanov, 162 AD3d 804 [2d Dept 2018]), or any relief with respect to plaintiffs claims of "serious injury." Accordingly, it is ORDERED, that the motion of plaintiff Jooyoul Oh for summary judgment dismissing defendant' s counterclaim is granted, and the counterclaim is dismis ed; and it is further ORDERED, that the cross motion of plaintiffs for partial summary judgment on the issue of defendant' s liability for causing the subject motor vehicle accident i granted. The parties are reminded of the February 21 2020 compliance conference before the undersigned. This constitutes the decision and order of the court. Dated: November 14, 2019 1 "[F]actual disputes are not enough ; they must relate to material issues' (Forres/ v Jewish G11ildjor the Blind 3 NY3d 295, 31 2 [2004)). 5 [* 6] 6 of 6

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