Rodriguez v MTA Bus Co.

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Rodriguez v MTA Bus Co. 2020 NY Slip Op 35287(U) December 21, 2020 Supreme Court, Westchester County Docket Number: Index No. 53081/2019 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: WESTCHESTER COUNTY CLERK 01/12/2021 11:54 AM NYSCEF DOC. NO. 32 INDEX NO. 53081/2019 RECEIVED NYSCEF: 01/12/2021 To commence commence the statutory statutory time time period period for for appeals appeals as of of right right (CPLR 5513 [a]), you are advised this advised to serve serve a copy copy of of this order, order, with with notice notice of of entry, entry, upon upon all parties. parties. SUPREME STATE OF NEW YORK SUPREME COURT COURT OF THE THE STATE NEW YORK WESTCHESTER WESTCHESTER COUNTY COUNTY P R E SEN S E N T: HON. WALKER, J.S.C. PRE HON. SAM SAM D. WALKER,J.S.C. -----------------------------------------------------------------------x -------------------------------------------------------------~---------x JOSE RODRIGUEZ, JOSE RODRIGUEZ, JR., DECISION DECISION & ORDER ORDER Index Index No. 53081/2019 53081/2019 Seq. 1 Plaintiff, Plaintiff, -against-againstMTA WILLIAMS, MTA BUS COMPANY COMPANY and DARRAYLE DARRAYLE WILLIAMS, Defendants. Defendants. ______________________________________________________ --~---------------x ------------------------------------------------------------------------x The judgment pursuant The following following papers papers were were read on a motion motion for for summary summary judgment pursuant to CPLR CPLR 3212, 3212, on the issue issue of liability: liability: Notice A-B Notice of Motion/Affirmation/Exhibits Motion/Affirmation/Exhibits A-B Affirmation in Opposition/Exhibits Affirmation Opposition/Exhibits A-B Reply Reply Affirmation Affirmation Upon ordered that that the motion Upon the foregoing foregoing papers papers it is ordered motion is GRANTED. GRANTED. FACTUAL AND PROCEDURAL BACKGROUND FACTUALANDPROCEDURALBACKGROUND The plaintiff, plaintiff, Jose Rodriguez, Jr., commenced commenced this this action action on February February 25, 25,2019, The Jose Rodriguez, 2019, to recover damages damages for alleged serious serious injuries injuries sustained sustained in a motor motor vehicle accident that that recover for alleged vehicle accident occurred on February February 9, 9,2018, near the intersection Yonkers Avenue Avenue and Seminary Seminary 2018, at or near intersection of Yonkers occurred Avenue in Westchester County, New York. plaintiff testified testified at his 50-H hearing hearing that Westchester County, York. The The plaintiff that Avenue he was was in the the right right lane lane on Yonkers Yonkers Avenue, Avenue, when when he came came to a red light. The The plaintiff plaintiff testified that that he was was stopped stopped for for a minute minute or two two at the the red light, when when the the MTA MTA bus hit his testified [* 1] vehicle in the the rear. vehicle 1 of 5 FILED: WESTCHESTER COUNTY CLERK 01/12/2021 11:54 AM NYSCEF DOC. NO. 32 INDEX NO. 53081/2019 RECEIVED NYSCEF: 01/12/2021 The plaintiff plaintiff now now files files the the instant-motion instant -motion seeking seeking summary summary judgment against the The judgment against defendants pursuant pursuant to CPLR CPLR 3212 3212 on the issue issue of of liability. liability. In support support of his motion, motion, the defendants plaintiff relies relies upon upon his attorney's attorney's affirmation, affirmation, the the 50-H hearing hearing transcript transcript and a copy copy of of the plaintiff pleadings. The The defendants, defendants, oppose oppose the the motion, motion, arguing arguing thatthe thatthe motion motion is premature, premature, since since pleadings. depositions and discovery discovery have have not been been conducted. conducted. The The defendants defendants further further submits submits the depositions operator's affidavit affidavit and argue argue that that the the affidavit affidavit establishes establishes a triable triable issue issue of fact fact as to bus operator's the question question of negligence. negligence. the Discussion Discussion "[T]he proponent proponent of of a summary summary judgment motion must must make make a prima prima facie facie showing showing "(T]he judgment motion of entitlement entitlement to judgment matter of law, tendering tendering sufficient sufficient evidence evidence to demonstrate demonstrate of judgment as a matter the absence absence of of any any material material issues issues of fact" fact" (see Alvarez Prospect Hosp., Hosp., 68 NY2d NY2d 320, Alvarez v Prospect the [1986]). Only Only when when such such a showing showing has been been made made must must the the opposing opposing party party set forth forth 324 [1986]). evidentiary proof proof establishing establishing the the existence existence of a material material issue issue of of fact, Winegrad Winegrad v New New evidentiary NY2d 851,853 851, 853 [1985]). [1985]). York Univ. Med. Ctr., 64 NY2d rear-end collision collision with with a stopped stopped or stopping stopping vehicle vehicle creates creates a prima prima facie facie case case "A rear-end of negligence negligence with with respect respect to the the operator operator of of the the moving moving vehicle, vehicle, and imposes imposes a duty duty on of that operator operator to rebut rebut the the inference inference of of negligence negligence by providing providing a non negligent negligent explanation explanation that for the the collision" collision" (see Sokolowska Sokolowska v Song, Song, 123 123 AD3d AD3d 1004 1004 [2d Dept Dept 2014]); 2014]); see see also also for Agramonte v City of New York, 288AD2d 288 AD2d 75, 76 [2001]; [2001]; Johnson Johnson vPhillips, v Phillips, 261 AD2d AD2d 269, Agramonte vCityofNew [1999]; Danza Danza v Longieliere, Longieliere, 256 256 AD2d AD2d 434, 434, 435 435 [1998], [1998], Iv dismissed dismissed 93 NY2d NY2d 957 271 [1999]; [1999]). [1999]). this case, the the plaintiff plaintiff has mad.e made out a prima prima facie facie showing showing of his entitlement entitlement to In this [* 2] 2 of 5 2 FILED: WESTCHESTER COUNTY CLERK 01/12/2021 11:54 AM NYSCEF DOC. NO. 32 INDEX NO. 53081/2019 RECEIVED NYSCEF: 01/12/2021 summary judgment. The testimony testimony submitted submitted by the the plaintiff plaintiff establishes establishes entitlement entitlement to summary judgment. The summary judgment matter of of law, thereby thereby shifting shifting the the burden burden to the the defendants defendants to summary judgment as a matter demonstrate the the existence existence of of a factual factual issue issue requiring-a requiring"a trial (see (see Macauley Macauley v Elrac, Inc., demonstrate AD3d 584, 585 [2d Dept Dept 2004]) 2004]) [Rear-end [Rear-end collision collision is sufficient sufficient to create create a prima prima facie facie 6 AD3d case of liability.] liability.] If the the operator operator of of the the striking striking vehicle vehicle fails fails to rebut rebut this this presumption presumption and the the case inference of of negligence, negligence, the the operator operator of of the stopped stopped vehicle vehicle is entitled entitled to summary summary inference judgment issue of of liability liability (see Leonard Leonardv v City City of of New New York. 273 273 AD2d AD2d 205 205 [2d Dept Dept judgment on the issue 2000]; 2000]; Longhito Longhito v Klein. 273 273 AD2d AD2d 281 [2d Dept Dept 2000]; 2000]; Velasquez Velasquez v Quijada. Quijada. 269 269 AD2d AD2d Dept 2000]; 2000]; Brant Brant v Senatobia Senatobia Operating Operating Corp., 269AD2d 269AD2d 483 483 [2d Dept Dept 2000]). 2000]). 592 [2d Dept Upon viewing viewing the the evidence evidence in a light light most most favorable favorable to the the non-moving non-moving party party Upon (Pearson v Dix Dix McBride, McBride, LLC, 63 AD 3d 895, 895 [2d Dept Dept 2009]), 2009]), and upon upon bestowing bestowing the (Pearson AD3d benefit of of every every reasonable reasonable inference inference to that that party party (Rizzo (Rizzo v Lincoln Lincoln Diner Diner Corp., 215 215 AD2d AD2d benefit Dept 1995]), 1995]), the the Court Court finds finds that that the the defendant defendant has failed failed to rebut rebut the the _ 546, 546 [2d Dept plaintiff's prima prima facie facie showing. showing. plaintiff's New York York Vehicle Vehicle and Traffic Traffic Law§ Law S 1129 1129 states states in pertinent pertinent part that: that: New The driver driver of of a motor motor vehicle vehicle shall shall not follow follow another another vehicle vehicle more more closely closely The than is reasonable reasonable and prudent, prudent, having having due due regard regard for for the the speed speed of of such such than vehicles and the traffic traffic upon upon and the the condition condition of the the highway. highway. NY VTL VTL § S vehicles 1129 (a) 1129 (Leal v Wolff), the the Second Second Department Department held that that "[s]ince "[s]ince the the defendant defendant was was under under In (Leal duty to maintain maintain a safe safe distance distance between between his car car and [the plaintiff's] plaintiff's] car car (see (see Vehicle Vehicle and a duty Traffic Law Section Section 1129[a])., his failure failure to do so in absence absence of otaa non negligent negligent explanation explanation Traffic constituted negligence negligence as a matter matter of of law" (Leal (Leal v Wolf. Wolf 224 224 AD2d AD2d 392 [2d Dept Dept 19961). 1996]). constituted defendants fail to offer offer any any non-negligent non-negligent explanation explanation for for the the accident accident and Here, the defendants 3 [* 3] 3 of 5 FILED: WESTCHESTER COUNTY CLERK 01/12/2021 11:54 AM NYSCEF DOC. NO. 32 INDEX NO. 53081/2019 RECEIVED NYSCEF: 01/12/2021 opposition does does not create create any issues issues of fact fact with regard regard to liability. liability. The The bus operator operator the opposition attests that that the plaintiff's plaintiff's van came came to an abrupt abrupt stop, he immediately immediately noticed noticed the van attests coming to a stop stop and applied applied the brakes brakes of the bus, which which require require approximately45 approximately45 pounds pounds coming pressure and that that when when he applied applied the brakes, brakes, the speed speed of the bus was was no more than of pressure more than miles per perhour. However, "[w]hen "[w]hen the driver driver of an automobile automobile approaches approaches from from the rear, 5-7 miles hour. However, bound to maintain maintain a reasonably reasonably safe safe rate of speed speed and control control over over his or her he or she is bound vehicle, and to exercise exercise reasonable reasonable care care to avoid avoid colliding colliding with the other other vehicle" vehicle" (see vehicle, Zweeres v Materi, Materi, 94 AD3d Dept 2012]). 2012]). "Drivers "Drivers have have a duty duty to see what what should should Zweeres AD3d 1111 [2d Dept seen and to exercise exercise reasonable reasonable care under under the circumstances circumstances to avoid avoid an accident" accident" be seen (Id.). (Id.). The bus operator operator provides provides no non-negligent non-negligent reason reason why, even even if the plaintiff plaintiff The suddenly stopped stopped his vehicle, vehicle, he could not avoid avoid colliding colliding with the plaintiff's plaintiff's vehicle, vehicle, suddenly especially since, since, he states states that that the bus was traveling traveling no more more than than 5-7 miles miles per per hour hour and especially accident occurred occurred between between two traffic traffic lights lights in close close proximity proximity with each each other. other. the accident Furthermore, the need need to conduct conduct discovery discovery does does not warrant warrant denial denial of the motion, motion, Furthermore, since the plaintiff plaintiff who who testified testified at the 50-H hearing hearing and the bus operator, operator, who submitted since who submitted affidavit, both have have personal personal knowledge knowledge of the relevant relevant facts facts of the accident accident (see an affidavit, Niyazov v Bradford, Bradford, 13 AD3d Dept 2004]). 2004]). Additionally, defendants failed failed to Niyazov AD3d 501 [2d Dept Additionally, the defendants demonstrate thatdiscoverywould that discovery would lead to any additional additional relevant relevant evidence evidence or orwould provide demonstrate would provide non-negligent explanation explanation for for the collision collision (Rodriguez (Rodriguez vFarre/1, vFarrell, 115 AD3d AD3d 929, 931 [2d a non-negligent Dept 2014]). 2014]). Dept Accordingly, based on all the foregoing, foregoing, it is Accordingly, based 4 [* 4] 4 of 5 FILED: WESTCHESTER COUNTY CLERK 01/12/2021 11:54 AM NYSCEF DOC. NO. 32 INDEX NO. 53081/2019 RECEIVED NYSCEF: 01/12/2021 ORDERED that that the plaintiff's motion for for summary judgment on the issue ORDERED plaintiff's motion summary judgment issue of liability liability is GRANTED. GRANTED. The parties The parties are directed directed to appear appear before before the Preliminary Preliminary Conference Conference Part Part on a date date to be determined. determined. The The foregoing foregoing shall shall constitute constitute the Decision Decision and Order Order of the Court. Court. White Plains, York Dated: Dated: White Plains, New New York December December 21, 2020 2020 ~{)~ WALKER, J.S.C. ON. SAM D. WALKER, J.S.C. 5 [* 5] 5 of 5

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