Henao v Toribio
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Henao v Toribio 2020 NY Slip Op 34895(U) January 29, 2020 Supreme Court, Westchester County Docket Number: 52403/2018 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 01/30/2020 11:26 AM NYSCEF DOC. NO. 45 INDEX NO. 52403/2018 RECEIVED NYSCEF: 01/29/2020 commence the statutory time for appeals as ofright of right To commence 5513(a]), you are advised to serve a copy (CPLR 5513[a]), of entry, upon all parties. parties. of this order, with notice of SUPREME COURT COURT OF THE THE STATE STATE OF NEW YORK' SUPREME NEW YORK. COUNTY OF WESTCHESTER WESTCHESTER COUNTY ------------------------------------------------------. -------------x ------------------------------------------------------~-------------)( CYNTHIA HENAO HENAO and CHRISTIAN CHRISTIAN HENAO, HENAO, CYNTHIA DECISION and and ORDER ORDER DECISION Plaintiffs, Plaintiffs, Motion Sequence Sequence NO.1 Motion No. 1 Inde)( No. 52403/2018 Index No. 52403/2018 -against-againstLUZ D. TORIBIO TORIBIO and and KELVIN KELVIN TORIBIO, TORIBIO, LUZ Defendants. Defendants. --------------------------------------------------------------------x --------------------------------------------------------------------)( RUDERMAN, J. RUDERMAN, The following following papers papers were were considered considered in connection connection with with the the motion motion by plaintiffs plaintiffs for The summary judgment the issue issue of of liability liability against against defendants: defendants: summary judgment on the Papers Papers Notice of Motion, Motion, Affirmation, Affirmation, Exhibits E)(hibits A - K Notice of Affirmation in Opposition Opposition Affirmation Reply Affirmation Affirmation Reply Numbered Numbered 1 2 3 This is an action action for personal personal injuries injuries allegedly allegedly sustained sustained in a motor motor vehicle vehicle collision collision on This May 5, 2015, 2015, on the the southbound southbound side side of ofthe Saw Mill Mill River River Parkway Parkway near near its intersection intersection with with - May the Saw Hearst Street Street in Westchester Westchester County, County, New York. A vehicle vehicle driven driven by plaintiff plaintiff Christian Christian Henao, Henao, Hearst New York. which plaintiff Cynthia Henao Henao was was a passenger, passenger, was was struck struck in the the rear rear by a vehicle vehicle driven driven by in which plaintiff Cynthia defendant Luz Luz Toribio Toribio and and registered registered to defendant defendant Kelvin Kelvin Toribio, Toribio, after after the the traffic traffic light light at which which defendant they had had been.stopped been.stopped turned turned green. green. they moving for summary summary judgment of defendants' defendants' liability, In moving judgment on the issue issue of liability, plaintiffs plaintiffs rely rely on the certified certified police police report report describing describing the officer's officer's own of the collision, and own observations observations of the collision, and the deposition testimony testimony of of plaintiffs plaintiffs and of of defendant defendant Luz Toribio. Toribio. Plaintiffs, depositions, deposition Plaintiffs, in their their depositions, 1 [* 1] 1 of 4 FILED: WESTCHESTER COUNTY CLERK 01/30/2020 11:26 AM NYSCEF DOC. NO. 45 INDEX NO. 52403/2018 RECEIVED NYSCEF: 01/29/2020 behind from behind hit from was hit when it was position when asserted stopped position the stopped from the moved from not moved had not vehicle had their vehicle that their asserted that personal soon as the light light turned green. The reporting officer described described the following following personal police officer reporting police turned green. as soon observation: observation: began to start traffic began vehicle #1 as of vehicle rear of "[V]ehicle #2 accelerate[d] as traffic start at the rear into the accelerate[d] into "[V]ehicle light the when forward move started 1 the traffic light at Hearst St. Vehicle # started to move forward when the light Vehicle Hearst light the traffic vehicle into right vehicle #2 accelerated turned green and and let his foot off off the gas, vehicle accelerated right into vehicle turned green not see did not and did vehicle #1 start #1. Driver stated that saw vehicle start to go and that she saw Vehicle #2 stated of Vehicle Driver of lights." any brake lights." brake plaintiffs' behind plaintiffs' been stopped had been vehicle had her vehicle Luz stopped behind that her deposition that her deposition described at her Toribio described Luz Toribio plaintiffs' turned green, when the light that when vehicle light at Hearst Street, and explained explained that light turned green, plaintiffs' Hearst Street, vehicle at a red light begun to having begun she, having that she, and that brake, and on the brake, vehicle "slammed" on then "slammed" accelerate, then began to accelerate, first began vehicle first vehicle. plaintiffs' vehicle. with plaintiffs' collision with prevent a collision accelerate, enough to prevent brake fast enough unable to brake was unable accelerate, was rear-end rule applicable that the rule opposing summary summary judgment, defendants suggest suggest that applicable to rear-end judgment, defendants In opposing negligence by of negligence inference of the inference rebut the vehicle "to rear vehicle collisions, "to rebut the rear of the operator of the operator on the imposing on collisions, imposing Sol Contr. & Constr. collision" (Kuris the collision" providing explanation for the (Kuris v El Sol Constr. Corp., Corp., nonnegligent explanation providing a nonnegligent stopping" "stopped or stopping" with a "stopped 675-676 [2d Dept only applies applies to collisions collisions with 2014]) only Dept 2014]) AD3d 675, 675-676 116 AD3d stopped. then stopped. and then accelerating and begun accelerating has begun vehicle, vehicle has forward vehicle the forward where the inapplicable where and is inapplicable vehicle, and vehicle came They evidence that came to a sudden sudden stop stop overcomes overcomes the plaintiffs' vehicle that plaintiffs' that the evidence propose that They propose vehicle. rear vehicle. the rear of the part of the part on the inference of negligence on of negligence inference Analysis Analysis this occurred, this collision occurred, the collision when the Since plaintiffs' stopping or decelerating decelerating when was stopping vehicle was plaintiffs' vehicle Since vehicle stopping vehicle stopped or stopping with a stopped Court collision with rear-end collision "a rear-end that "a rule that the rule applicable the finds applicable Court finds vehicle, rear vehicle, the rear of the operator of the operator of the part of establishes the part negligence on the of negligence case of facie case prima facie establishes a prima nonnegligent providing a nonnegligent negligence by providing thereby operator to rebut inference of of negligence rebut the inference that operator requiring that thereby requiring 675-676 AD3d at 675-676 Corp., 116 AD3d Constr. Corp., explanation Sol Contr. & Constr. El Sol Kuris v El collision" (see Kuris the collision" explanation for the 2 [* 2] 2 of 4 FILED: WESTCHESTER COUNTY CLERK 01/30/2020 11:26 AM NYSCEF DOC. NO. 45 INDEX NO. 52403/2018 RECEIVED NYSCEF: 01/29/2020 Dept 2014]). 2014]). Moreover, Moreover, even even accepting accepting as true true Luz Toribio's Toribio's description description ofhow of how the [2d Dept accident occurred, occurred, the inference inference of of negligence negligence is not negated: negated: "the "the defendant's defendant's contention, contention, made made accident opposition to the plaintiffs' motion, that that the plaintiff once the traffic traffic light light turned turned in opposition plaintiffs' motion, plaintiff proceeded proceeded once ' . green but then suddenly suddenly stopped, stopped, did not not rebut rebut the inference inference of of negligence negligence by providing green but then providing a non-negligent explanation explanation for the collision" collision" (Ramirez (Ramirez v Konstanzer, AD3d 837, 837,837 Dept non-negligent Konstanzer, 61 AD3d 837 [2d Dept // ./ / 2009] [citations [citations omitted]). omitted]). Even Even if if plaintiffs' vehicle began accelerating at the green green light light but plaintiffs' vehicle began accelerating but 2009] then immediately immediately braked, violation of of Vehicle Vehicle and Traffic Traffic Law§ Law S 1129 (a) by defendant driver driver then braked, a violation by defendant established, since since the statute statute requires requires a driver driver approaching approaching another another vehicle vehicle from from the rear rear to is established, maintain a reasonably reasonably safe distance distance and rate of of speed, speed, and andto exercise reasonable reasonable care care to avo~d a. a to exercise maintain collision with with the vehicle vehicle in front. collision Summary judgment against defendants defendants on the issue issue of of liability liability would would be warranted warranted even· even. Summary judgment against if Rodriguez v City New York if defendants defendants stated stated a valid valid defense defense of of comparative comparative negligence{see negligence {see Rodriguez City of o/New [2018]). However, However, that that defense defense is not not supported supported here here by the testimony of ofLuz (31 NY3d NY3d 312 [2018]). the testimony Luz Toribio that that plaintiff driver braked after momentarily momentarily beginning accelerate at the green green light. light. Toribio plaintiff driver braked after beginning to accelerate Although "not "not every every rear-end rear-end collision collision is the the exclusive exclusive fault fault of of the rearmost rearmost driver" driver" Although (Gaeta v Carter, Carter, 6 AD3d AD3d 576, 576 [2d Dept Dept 2004] [emphasis added], cit~ng Chepel Chepel v Meyers, (Gaeta [emphasis added], Meyers, . . . . . AD2d 235, 235, 236 [2d Dept Dept 2003]), 2003]), to establish establish the existence existence of of an issue issue offact offact as to whether whether 306 AD2d lead driver driver was comparatively comparatively negligent, negligent, more more must must be shown shown than than aamere assertion that that the the lead mere assertion driver stopped stopped after after briefly ofaa green green signal. signal. In Gaeta Gaeta v Carter, Carter, for· for lead driver briefly proceeding, proceeding, in the face of example, an issue issue remained remained for trial trial as to the lead driver's driver's comparative comparative negligence negligence based example, based on the evidence that that "the "the plaintiff stopped his car in traffic traffic in an attempt attempt to make make a right-hand right-hand tum, tum, evidence plaintiff stopped left-hand lane, without without signaling" signaling" (6 AD3d AD3d .at Similarly, evidence evidence that that the lead lead _at 577). Similarly, from the left-hand driver stopped stopped suddenly suddenly and without without warning warning in the left lane lane of of moving moving traffic traffic in order order to make make driver 3 [* 3] 3 of 4 FILED: WESTCHESTER COUNTY CLERK 01/30/2020 11:26 AM NYSCEF DOC. NO. 45 INDEX NO. 52403/2018 RECEIVED NYSCEF: 01/29/2020 illegal left left turn turn also sufficed sufficed (see Ramos 96 AD3d AD3d 924, 924, 925-926 925-926 [2d Dept Dept an illegal Ramos v TC Paratransit, Paratransit, 96 2012]). In such such cases, cases, since since the the rear rear driver driver could could reasonably reasonably anticipate anticipate that that the the car car in front front 2012]). would continue continue to proceed proceed with with the the flow flow of of traffic traffic until until conditions conditions or circumstances circumstances changed, changed, the the would lead driver driver could could be found found negligent negligent for stopping stopping suddenly suddenly in the the roadway roadway in the the middle middle of of the the lead of traffic, traffic, in contravention contravention of of traffic traffic regulations, regulations, without without prior indication. flow of prior indication. contrast, in the the present situation, the rear rear driver driver had had no right right to anticipate anticipate that that the the In contrast, present situation, vehicle in front front of of it would would proceed proceed as soon soon as the the light light changed, changed, or accelerate accelerate immediately immediately to vehicle speed. By accelerating accelerating before before the the vehicle vehicle ahead ahead of of her her had had completely completely proceeded, full speed. proceeded, defendants' vehicle vehicle was was the sole cause cause of of the the collision. collision. defendants' view of of the the foregoing, foregoing, it is hereby hereby In view ORDERED that that plaintiffs plaintiffs motion motion for summary summary judgment the issue issue of of liability liability against against ORDERED judgment on the defendants is granted, granted, and it is further further defendants ORDERED that that all parties parties are directed directed to appear appear at 9:15 9: 15 a.m. on Tuesday, Tuesday, March March 17, ORDERED 2020, in the Settlement Settlement Conference Conference Part, Part, room room 1600 of of the the Westchester Westchester County County Courthouse Courthouse 2020, located at 111 Dr. Martin Martin Luther Luther King King Jr. Boulevard, Boulevard, White White Plains, Plains, New York, 10601, 10601, to located New York, schedule a trial on the the issue issue of of damages. damages. schedule This constitutes constitutes the Decision Decision and Order Order of of the the Court. Court. This Dated: White White Plains, Plains, New York Dated: New York January 2020 January 2020 2.'I, Z!l., ~~ H . . ~ JANE RUDERMAN, RUDERMAN, J.S.C. J.S.C. H ~~ 4 [* 4] 4 of 4
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