Cohen v Tomilinson
Annotate this CaseDecided on April 17, 2019
Supreme Court, Warren County
Mitchell A. Cohen and ROBIN L. COHEN, Plaintiffs,
against
Donald C. Tomilinson and SARAH E. TOMILINSON, Defendants.
EF2018-65506
E. Stewart Jones Hacker Murphy, LLP, Troy (James E. Hacker of counsel), for plaintiffs.
Maynard, O'Connor, Smith & Catalinotto, LLP, Albany (Andrea Demers of counsel), for defendants.
Robert J. Muller, J.
Submitted in support of plaintiffs' motion for partial summary judgment on liability is an affidavit from plaintiff Mitchell A. Cohen (hereinafter plaintiff), together with a certified police accident report, demonstrating that on April 9, 2016 defendant Donald C. Tomilinson (hereinafter defendant) rear-ended a non-party's vehicle and propelled that vehicle into the rear of plaintiff's vehicle. Plaintiffs commenced this action to recover damages for personal injuries allegedly sustained as a result of the collision. Defendants interposed an answer containing affirmative defenses, the second of which alleges plaintiff's comparative fault.
Recently in Rodriguez v City of New York (31 NY3d 312 [2018]) (hereinafter Rodriguez), the Court of Appeals considered
"a question that has perplexed courts for some time: Whether a plaintiff is entitled to partial summary judgment on the issue of a defendant's liability, when . . . defendant has arguably raised an issue of fact regarding plaintiff's comparativenegligence. Stated differently, to obtain partial summary judgment in a comparative negligence case, must plaintiffs establish the absence of their own comparative negligence" (id. at 315 31 NY3d at 315 [2018]).In light of Rodriguez, a plaintiff is no longer required to demonstrate the freedom from comparative negligence in order to be entitled to summary judgment as to a defendant's liability.
That being said, a plaintiff moving for summary judgment in a negligence action on the issue of liability must still establish, prima facie, that defendant breached a duty owed to plaintiff and that defendant's negligence was a proximate cause of plaintiff's alleged injuries (see Tsyganash v Auto Mall Fleet Mgt., Inc.,163 AD3d 1033, 1033-1034 [2018]). In this context "[a] driver of a vehicle approaching another vehicle from the rear is required to maintain a reasonably safe distance and rate of speed under the prevailing conditions to avoid colliding with the other vehicle" (Nsiah-Ababio v Hunter, 78 AD3d 672, 672 [2010]; see Vehicle and Traffic Law § 1129 [*2][a]), and a rear-end collision establishes a prima facie case of negligence imposing a duty upon the operator of the trailing vehicle to provide a nonnegligent explanation for the collision (see Johnson v First Student, Inc., 54 AD3d 492, 492-493 [2008]; Nichols v Turner, 6 AD3d 1009, 1012 [2004]; Rodriguez-Johnson v Hunt, 279 AD2d 781, 781-782 [2001]; Countermine v Galka, 189 AD2d 1043, 1044 [1993]).
Summary judgment is appropriate "if, upon all the papers and proof submitted, the [movant establishes] its cause of action or defense . . . sufficiently to warrant the court as a matter of law in directing judgment in [its] favor . . . " (CPLR 3212 [b]; see Zuckerman v City of New York, 49 NY2d 557, 560 [1980]). Inasmuch as this "rear-end collision. . . establishes a prima
facie case of negligence on the part of the driver of the rear vehicle" (Sims v Ciccone-Burton, 167 AD3d 1541, 1542 [2018] [citation and internal quotation marks omitted]; see Bell v Brown, 152 AD3d 1114, 1114 [2017]; Tumminello v City of New York, 148 AD3d 1084, 1084-1085 [2017]; Gibson v Gentry, 16 AD3d 744, 745 [2005]), the Court finds that plaintiffs have satisfied their initial summary judgment burden and established their entitlement to partial summary judgment on liability.
Once the party seeking summary judgment makes a prima facie showing of entitlement to judgment as a matter of law — as has occurred here — the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action (see Zuckerman v City of New York, 49 NY2d at 560; Freitag v Village of Potsdam, 155 AD3d 1227, 1229 [2017]).
In opposition, defense counsel asserts that some initial paper discovery has been exchanged but no depositions have taken place and, as such, the motion is premature. It is also argued that the non-party operated middle vehicle may have stopped suddenly, creating an emergency situation which defendant was unable to avoid. As it is too much of a reach to assume plaintiff would have had the power to perceive that the non-party operated vehicle behind his had stopped abruptly these are facts that could only be known to the party looking to rely upon them. Hence, the suggested emergency not pleaded as an affirmative defense here - should have been. (see CPLR 3018 [b]; Bello v Transit Auth. of NY City, 12 AD3d 58, 61 [2004]
Lastly, the opposition does not include an affidavit from defendant, thus falling short of the requirement that to rebut the Court's finding of negligence the driver of the rear vehicle must submit a non-negligent explanation for the collision. By way of example, "'one of several [non-negligent] explanations for a rear-end collision is a sudden stop of the lead vehicle'" (Warner v. Kain, 162 AD3d 1384, [2018] ; see Brooks v High St. Professional Bldg., Inc., 34 AD3d 1265, 1266 [2006]; Chepel v Meyers, 306 AD2d 235, 237 [2003]).) "[M]ere expressions of hope or unsubstantiated allegations . . ." (see e.g. Gilbert Frank Corp. v. Federal Ins. Co., 70 NY2d at 967) never fair well in these summary judgment pursuits.
Based upon the foregoing, defendants have failed to raise any triable issues of fact and plaintiffs' motion for partial summary judgment on liability is granted in its entirety.
Therefore, having considered the Affidavit Mitchell A. Cohen, sworn to December 20, 2018, submitted in support of the motion; Affidavit of James E. Hacker, Esq. with Exhibits "A" through "C" attached thereto, sworn to January 11, 2019, submitted in support of the motion; Affirmation of Andrea P. Demers, Esq., dated February 11, 2019, submitted in opposition to the motion; Affidavit of Mitchell A. Cohen, sworn to February 15, 2019, submitted in further [*3]support of the motion; and Affidavit of James E. Hacker, Esq. with Exhibit "A" attached thereto, sworn to February 15, 2019, submitted in further support of the motion, and oral argument having been heard on April 12, 2019 with Erin Kilmer, Esq. appearing on behalf of plaintiffs and Andrea Demers, Esq. appearing on behalf of defendants, it is hereby
ORDERED that plaintiffs' motion for partial summary judgment on liability is granted in its entirety; and it is further
ORDERED that any relief not specifically addressed has nonetheless been considered and is expressly denied.
The original of this Decision and Order has been e-filed by the Court. Counsel for plaintiffs is hereby directed serve a copy of the Decision and Order with notice of entry in accordance with CPLR 5513.
Dated: April 17, 2019
Lake George, New York
____________s/______________________
ROBERT J. MULLER, J.S.C.
ENTER:
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