Sorensen v Kakashvili

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Sorensen v Kakashvili 2020 NY Slip Op 35511(U) September 24, 2020 Supreme Court, Bronx County Docket Number: Index No. 22052/2019E Judge: Ben R. Barbato 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: BRONX COUNTY CLERK 10/08/2020 12:08 PM NYSCEF DOC. NO. 25 INDEX NO. 22052/2019E RECEIVED NYSCEF: 10/08/2020 SUPRE . E COURT OF THE STATE OF NEW YORK COUNTY OF BRONX ----------------------------------------------------------------------X Helene Sorensen, DECISION and ORDER Index No. 22052/2019E Plaintiff, - against Zaza Kakashvi li and Friendly Transit, Inc. Defendants. ----------------------------------------------------------------------X Ben R. Barbato, J. Upon the foregoing papers the motion of the plaintiff for summary judgment as to liability only i d cided as follows: This action arises out of a rear-end motor vehicle collision that occurred on September 4, 2018, at approximately 12:45 P.M., on Ardsley Road at the intersection with S. Central Avenue, Town f Greenburgh, County of Westchester. Plai ntiff moves for summary judgment as to liability only. Plaintiff relies on inter alia, her own dep sition testimony, in which she testified that she was at a full stop in the furthermost lefthand lane on Ardsley A venue, waiting for the left turn signal when she was struck in the rear by the defend nts ' vehicle. Plaintiff also relies on the police accident report which attributes the following statement to the defendant: "Driver of Vehicle #2 reports that traffic was stop and go and Vehicle # 1 came to a sudden stop . . ." In opposition, defendants rely on the deposition testimony of the defendant driver, Kakash iii. K kashvili testified that the plaintiff's vehicle was actually in motion, and had begun to move fo ard into the intersection. Although plaintiff was in the left turn dedicated lane, her right tum si gnal wa activated. Kakashvili further testified that plaintiff then brought her vehicle to a sudden stop for no apparent reason. [* 1] 2 of 4 FILED: BRONX COUNTY CLERK 10/08/2020 12:08 PM NYSCEF DOC. NO. 25 INDEX NO. 22052/2019E RECEIVED NYSCEF: 10/08/2020 Drivers are required to maintain a reasonably safe rate of speed maintain control over the vehicle, and to maintain a safe distance from the vehicle in front. (Vehicle and Traffic Law § 1129 [a]). When a rear end collision occurs, a presumption of negligence is established by proof that a stopped car was struck in the rear (Stalikas v United Materials 100 Y2d 626 801 NE2d 411 , 769 NYS2d 19 1 [2003 ]). The presumption can be rebutted if the operator of the rear vehicle comes forward with an adequate non-negligent explanation for the accident (Passos v MTA Bus Co. , 129 A.D.3d 481 48 1-482 13 N.Y.S.3d 4, 5 [1st Dept. 2015].) As a threshold matter, while defendant is correct that the statement of a police officer who did not itness the accident is hearsay, the police accident report is competent evidence to the extent that it contains the defendant driver's admissions. Th report itself is certified. (Welde v. Wolfs n 32 A.D.2d 973 [2d Dept. 1969] [motor vehicle accident report wruch was certified was admis ible].) A police accident report containing a party 's admis ion against interest is competent eviden e on summary judgment. (Scoll v. Kass, 48 A.D .3d 785 [2d Dept. 2008] [police accident report contained a statement by the defendant that he had fa ll n asleep while driving and that his vehicl had crossed over a double yellow line into oncoming traffic and struck a telephone pole on the opposite side of the road· the statement was admissible as the admission of a party].) In any vent, a claim that the lead driver came to a sudden stop standing alone, is insuffi ient to rebut the presumption that the rearmost driver was negligent and the stopped vehicle was n t neglig nt (Giap v Hathi Son Pham 159 A.D.3d 484 485 71 N.Y.S .3d 504, 506 [1st Dept. 2018]; . ee Cabrera v Rodriguez, 72 AD3d 553 , 900 YS2d 29 [I t Dept. 2010]; Woodley v Ramirez, 25 AD3d 451 , 810 NYS2d 125 [1st Dept. 2006]; Malone v Morillo, 6 AD3d 324, 775 YS2d 312 [1 st Dept. 2004]). Here, the defendant claimed that plaintiff stopped suddenly. His testimo y was entirely conclusory, as he provided no testimony as to the speed of his vehicle, the distance maintai ned from the plaintiff's vehicle or the amount of time which elapsed after he 2 [* 2] 3 of 4 INDEX NO. 22052/2019E FILED: BRONX COUNTY CLERK 10/08/2020 12:08 PM NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 10/08/2020 "A conclusory assertion by the operator of the applied rus brake to the time of the collision. follo ing vehicle that the sudden stop of the vehicle caused the accident is insufficient, in and of itself, to provi de a nonnegligent explanation." (Gutierrez v Trillium, USA, LLC, 111 A.D.Jd 669 670- 671 [2d D pt. 2013].) " ]ehicle stops which are foreseeable under the prevailing traffic conditions even if sudden and frequent must be anticipated by the driver who follows since he or she is under a duty to maintain a safe distance between his or her car and the car ahead .' (Shamah v Richmond County Ambulance Serv. 279 A.D .2d 564 565 [2d Dept. 2001].) Defendant' s statement as reflected in the police accident report that traffic was " stop and go" is an admission that the fact that the lead ehicle might stop was foreseeable. Further with respect to the allegation that the right hand signal was activated on the plaintiff s car defendant made no such statement to the police. E en if he had, he did not testify that pl aintiff was attempting to make a right hand tum at the time of the collision. Lastly, even if a trier of fact would speculate that the plaintiff decided to change lanes and tum right instead of left, as to which there is no evidence, the presence of a right turn signal would have alerted the defendant to maintain a safe distance. Accordingly, it is hereby RDERED that the motion is granted, and it is further ORDERED that plaintiff is granted judgment a to liability only. This is the Decision and Order of the Court. Dated: - ?A--~A ~<;Z B ~ t o, J.S.C. 3 [* 3] 4 of 4

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