Mitchell v Stahl-Boyan

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Mitchell v Stahl-Boyan 2021 NY Slip Op 33490(U) February 16, 2021 Supreme Court, Suffolk County Docket Number: Index No. 607461-2018 Judge: William G. Ford 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: SUFFOLK COUNTY CLERK 02/25/2021 01:00 PM NYSCEF DOC. NO. 40 INDEX NO. 607461/2018 RECEIVED NYSCEF: 02/25/2021 INDEX NO.: 607461-2018 SHORT FORM ORDER SUPREME COURT - STATE OF NEW YORK I.A.S. PART 38 - SUFFOLK COUNTY PRESENT: HON. WILLIAM G. FORD JUSTICE OF THE SUPREME COURT _ _ _ _ _ _ _ __ _ __ _ _ _ _ _ _ x Motion Submit Date: 07/02/20 Mot Seq#: 002 - MD; RTC PLAINTIFF'S COUNSEL: DOUGLAS & LONDON, P.C 59 Maiden Lane, 6th Floor New York, NY 10038 JOAN MITCHELL, Plaintiff, -against- DEFENDANTS' COUNSEL: Law Offices of Denis J. Kennedy 1325 Franklin A venue, Suite 340 Garden City, NY 11530 MARGARET STAHL-BOYAN, and BRYANS. BOYHAN, Defend ants. _ _ _ __ __ __ __ _ _ _ _ _ _ x In this electronically filed personal injury action, concerning plaintiffs motion for partial summary judgment as to liability pursuant to CPLR 3212, in reaching its determination the Court considered the following: NYSCEF Docs. Nos. 28 - 38; and upon due deliberation and full consideration of the same; it is ORDERED that plaintiffs motion for partial summary judgment as to liability is denied as follow; and it is further ORDERED that plaintiffs counsel is hereby directed to serve a copy of this decision and order with notice of entry via electronic filing and electronic mail upon defendants' counsel; and it is further ORDERED that, if applicable, within 30 days of the entry of this decision and order, that defendant's counsel is also hereby directed to give notice to the Suffolk County Clerk as required by CPLR 8019(c) with a copy of this decision and order and pay any fees should any be required; and it is further ORDERED that counsel shall appear remotely at a discovery certification conference via the Microsoft Teams platform, invitation and link to be provided by the Court under separate cover to counsel of record via email at their addresses on file with the Court via NYSCEF, on the now adjourned date of Thursday, April 2, 2021 at 11:00 a.m. Counsel may waive appearance provided that all pretrial disclosure in this matter is certified as complete and a proposed certification order is filed and uploaded by NYSCEF by then. 1 [* 1] 1 of 6 INDEX NO. 607461/2018 FILED: SUFFOLK COUNTY CLERK 02/25/2021 01:00 PM NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 02/25/2021 FACTUAL BACKGROUDN & PROCEDURAL POSTURE arising out Plaintiff commenced this personal injury negligence action against defendants gs, pleadin her to ing of a motor vehicle collision which occurred on July 31, 2017. Accord as a proximate plaintiff seeks damages for personal injury premised on defendants negligence injuries. Presently, cause of the underlying motor vehicle collision and attendant alleged serious the defendant. plaintiff moves for an award of partial summary judgme nt on liability against ion In support of her application, plaintif f submits copies of the pleadings and the deposit investigation transcripts of the parties, as well as an uncertified copy of the policy accident report. SUMMARY OF THE ARGUMENTS for liability Arguing in support of entry of judgme nt as a matter of law against defendant dated trial before in this matter, plaintiff submits a copy of the transcript from her examination westbound on July 16, 2019. There, plaintif f testified that on July 31, 2017 , while travelling alk, she crossw West Montauk Highway at no more than 15 mph , a few car lengths from a the street, right observed a few pedestrians enter a crosswalk immediately ahead of her and cross to a stop, and came she to left from her vantage point. Due to their presence, plaintiff stated that after stopping, while stopped, defendant rear-ended her vehicle. Plaintiff further testified that ching the rear of approa quickly she had enough time to observe in her rearview mirror defendant n 4 and 5 seconds. her vehicle prior to impact and the resulting collision, which estimated betwee crosswalk, just to At the time of impact, plaintif f observed the pedestrians in the middle of the collision as a the right of the front passenger side of her vehicle. Plainti ff characterized the heavy impact. before Also before the Court is defend ant's deposition transcript. At her examination on Hampt in trial, defendant testified that a collision occurred on July 31, 2017 on Main Street vehicle came into Bays at or near a crosswalk. She acknowledged that the front bumper of her traffic on the road contact with the right rear of plainti ffs vehicle . Defendant characterized the re from 3 to 5 as "stop-and-go" and she had observed plaintiff's vehicle ahead of her anywhe , plaintiff impact to minutes prior to the collision. Defendant testified that immediately prior few seconds" brought her vehicle to a "sudden stop, and that the vehicle was stopped for "a vehicle her impact to when the 2 vehicles collided. Defendant further clarified that prior to a stop about travelled at between 5 and 10 mph, and that she observed plainti ffs vehicle come of the reason why half a car length from her vehicle. Defendant explained that she was unaware ching the plaintiff came to a stop as she did not observe any pedestrians near, in or approa the police accident crosswalk ahead at time of the collision. Subsequently, defendant did review she failed to investigation report and disputed its accuracy to the extent that it reflected that observe plainti ffs stop prior to the incident. arguing Relying on this testimony, plaintiff seeks partial summary judgme nt on liability d rear-en a d initiate that defendant is liable to her as the proximate cause for the incident having collision with her vehicle stopped at a crosswalk containing pedestrian foot traffic. 2 [* 2] 2 of 6 FILED: SUFFOLK COUNTY CLERK 02/25/2021 01:00 PM NYSCEF DOC. NO. 40 INDEX NO. 607461/2018 RECEIVED NYSCEF: 02/25/2021 STANDARD OF REVIEW The motion court's role on review of a motion for summary judgment is issue finding, not issue determination (Trio Asbestos Removal Corp. v Gabriel & Sciacca Certified Pub. Accountants, LLP, 164 AD3d 864,865, 82 NYS3d 127, 129 [2d Dept 2018]). The court should refrain from making credibility determinations (Gniewek v Consol. Edison Co., 271 AD2d 643, 643, 707 NYS2d 871 [2d Dept 2000]). It is well settled that summary judgment is a drastic remedy which should not be granted when there is doubt as to the existence of a triable issue of fact. Where, however, one seeking summary judgment tenders evidentiary proof in admissible form establishing its defense sufficiently to warrant the court as a matter of law in directing judgment in its favor, the burden falls upon the opposing party to show, also by evidentiary proof in admissible form, that there is a material issue of fact requiring a trial of the matter (see Zuckerman v. City of New York, 49 NY2d 557,562,427 NYS2d 595 (1980]). The evidence presented on a motion for summary judgment must be scrutinized in the light most favorable to the party opposing the motion (see Goldstein v. Monroe County, 77 AD2d 232,236, 432 NYS2d 966 [1980]). The proponent on a motion of summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (Alvarez v Prospect Hosp., 68 NY2d 320, 508 NYS2d 923 [1986]; Winegrad v New York Univ. Med. Ctr. , 64 NY2d 851,487 NYS2d 316 [1985];]; Zuckerman v City of New York, 49 NY2d 557, 427 NYS2d 595 [1980]). If the moving party fails in meeting this burden, the motion must be denied. If, however, this burden is satisfied, then the burden shifts to the opposing party to establish the existence of material issues of fact requiring a trial (see Zuckerman, supra). The function of the court in determining a motion for summary judgment is issue finding, not issue determination (Pantote Big Alpha Foods, Inc. v Schefman, 121 AD2d 295, 503 NYS2d 58 [1st Dept. 1986]). The burden then shifts to the party opposing the motion which must produce evidentiary proof in admissible form sufficient to require a trial of the material issues of fact (Roth v Barreto, 289AD2d 557, 735 NYS2d 197 [2d Dept. 2001]; Rebecchi v Whitmore, 172 AD2d 600, 568 NYS2d 423 [2d Dept. 1991]; O'Neill v Fishkill, 134 AD2d 487,521 NYS2d 272 [2d Dept. 1987]). The law is well-established that summary judgment is a drastic remedy to be granted only when there is clearly no genuine issue of fact to be presented at trial (see Andre v Pomeroy, 35 NY2d 361,362 NYS2d 131 [1974]; Benincasa v Garrubo, 141 AD2d 636,529 NYS2d 797 [2d Dept. 1988]) DISCUSSION "A plaintiff in a negligence action moving for summary judgment on the issue of liability must establish, prima facie, that the defendant breached a duty owed to the plaintiff and that the defendant's negligence was a proximate cause of the alleged injuries (Hai Ying Xiao v Martinez, 185 AD3d 1014, 126 NYS3d 369,370 [2d Dept 2020]). A plaintiff is no longer required to show freedom from comparative fault to establish her or his prima facie entitlement to judgment as a matter of law on the issue of liability (Xin Fang Xia v Saft, 177 AD3d 823, 825, 113 NYS3d 249, 251 [2d Dept 2019]; see also Rodriguez v. City of New York,31 NY3d 312 [2018]). 3 [* 3] 3 of 6 FILED: SUFFOLK COUNTY CLERK 02/25/2021 01:00 PM NYSCEF DOC. NO. 40 INDEX NO. 607461/2018 RECEIVED NYSCEF: 02/25/2021 A rear-end collision with a stopped or stopping vehicle creates a prima facie case of negligence with respect to the operator of the rearmost vehicle, thereby requiring that operator to rebut the inference of negligence by providing a non-negligent explanation for the collision (Edgerton v City of New York, 160 AD3d 809, 810, 74 NYS3d 617,618 [2d Dept 2018]). Stops by a lead vehicle which are foreseeable under the prevailing traffic conditions, even if sudden and frequent, must be anticipated by the driver who. Moreover, an assertion that the lead vehicle came to a sudden stop, standing alone, is insufficient to rebut the presumptio n of negligence on the part of the operator of the rear vehicle (Perez v Persad, 183 AD3d 771 , 123 NYS3d 683, 684-85 [2d Dept 2020]). "When the driver of an automobile approaches another automobile from the rear, he or she is bound to maintain a reasonably safe rate of speed and control over his vehicle, and to exercise reasonable care to avoid colliding with the other vehicle" (Comas-Bourne v City of New York, 146 AD3d 855, 856, 45 NYS3d 182, 183 [2d Dept 2017]). Drivers have a duty to see what should be seen and to exercise reasonable care under the circumstances to avoid an accident (Williams v Spencer-Hall, 113 AD3d 759, 760,979 NYS2d 157, 159 [2d Dept 2014]). a rear-end collision with a stopped vehicle creates a prirna facie case of liability with respect to the operator of the rearmost vehicle, thereby requiring that operator to rebut the inference of negligence by providing a nonnegligent explanation for the collision (Sayyed v Murray, l 09 AD3d 464,464, 970 NYS2d 279,281 [2d Dept 2013]). The claim that the lead vehicle made a sudden stop, standing alone, is insufficient to rebut the presumptio n of negligence on the part of the following vehicle (see Zdenek v Safety Consultants, Inc. , 63 AD3d 918, 918, 883 NYS2d 57, 58 [2d Dept 2009]; Kastritsios v. Marcello, 84 AD3d 1174, 923 NYS2d 863; Franco v. Breceus, 70 AD3d 767, 895 NYS2d 152; Mallen v. Su, 67 AD3d 974, 890 NYS2d 79; Rainford v. Han, 18 AD3d 638, 795 NYS2d 645; Russ v. Investech Secs., 6 AD3d 602, 775 NYS2d 867; Xian Hong Pan v Buglione, 101 AD3d 706, 707, 955 NYS2d 375, 377 [2d Dept 2012]). Although a sudden stop of the lead vehicle may constitute a nonnegligent explanation for a rear-end collision, "vehicle stops which are foreseeable under the prevailing traffic conditions, even if sudden and frequent, must be anticipated by the driver who follows" (Buchanan v Keller, 169 AD3d 989, 991-92, 95 NYS3d 252, 254 [2d Dept 2019]). Thus, while a possible non-negligent explanation for a rear-end collision could be the sudden stop of the lead vehicle," however, it is equally true that "vehicle 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" (Tumminello v City of New York, 148 AD3d 1084, 1085, 49 NYS3d 739, 741 [2d Dept 2017]; Shamah v. Richmond County Ambulance Serv., 279 AD2d 564, 565, 719 N.Y.S.2d 287; see Gutierrez v Trillium USA, LLC, 111 AD3d 669,671 , 974 NYS2d 563,566 [2d Dept 2013]; Robayo v. Aghaabdul, 109 AD3d 892, 893, 971 NYS2d 317). Even assuming that a lead vehicle stopped short or suddenly, following vehicles should not escape liability for an assumed failure to maintain a proper or safe following distance under the presented circumstances, where the record presents a scenario with triable questions of fact ripe for jury determination, rather than summary determination on the law ( see e. g. Romero v Al Haag & Son Plumbing & Heating, Inc. , 113 AD3d 746, 747, 978 NYS2d 895, 896 [2d Dept 2014][even assuming that the defendant driver failed to maintain a reasonably safe distance and rate of speed while traveling behind the plaintiffs vehicle under Vehicle and Traffic Law§ 1129[a], defendant' s deposition testimony relied upon by plaintiff, itself raised a triable issue of fact on whether the plaintiff 4 [* 4] 4 of 6 FILED: SUFFOLK COUNTY CLERK 02/25/2021 01:00 PM NYSCEF DOC. NO. 40 INDEX NO. 607461/2018 RECEIVED NYSCEF: 02/25/2021 contributed to the accident by driving in an erratic manner]; accord Fernandez v Babylon Mun. Solid Waste , 117 AD3d 678, 679, 985 NYS2d 289,290 [2d Dept 2014][under circumstances where plaintiff came to an abrupt stop for no apparent reason resulting in a collision, a triable issue of fact exists]; Sokolowska v Song, 123 AD3d 1004, 1004, 999 NYS2d 847, 848 [2d Dept 2014]). However, "[i]f the operator cannot come forward with any evidence to rebut the inference of negligence, the plaintiff may properly be awarded judgmen t as a matter of law" (Barile v. Lazzarini, 222 AD2d 635,636, 635 NYS2d 694; D'Agostino v YRC, Inc., 120 AD3d 1291 , 1292, 992 NYS2d 358, 359 [2d Dept 2014]). Thus, the burden is placed on the driver of the offending vehicle, as he or she is in the best position to explain whether the collision was due to a mechanical failure, a sudden stop of the vehicle ahead, unavoidable skidding on wet pavement, or some other reasonable cause (see Abbott v Picture Cars E., Inc. , 78 AD3d 869, 911 NYS2d 449 [2d Dept 2010]; DeLouise v S.K.L Wholesale Beer Corp. , 75 AD3d 489,904 NYS2d 761 [2d Dept 2010]; Moran v Singh, 10 AD3d 707, 782 NYS2d 284 [2d Dept 2004]). Having reviewed all of the parties' motion papers, the Court finds that plaintiff has dispensed with her requisite burden entitling her to judgment as a matter of law regarding liability with submission of her deposition testimony and the certified police accident investigation report. All taken together, the Court finds plaintiff s papers demonstrate a prirna facie case of negligence against the defendant. Accordingly, the burden has shifted to defendant to come forward with a non-negligent explanation for the incident. Plaintiff having met with her burden of establish ingprima facie entitlement to judgment as a matter oflaw for liability, in opposition defendant relies solely on his counsel ' s affirmation in opposition. In that opposition, counsel primarily relies on defendant's deposition testimony and highlights a perceived triable question of fact: that the parties dispute whether or not pedestrians were present within the crosswalk and were attempting to cross the street at the time of or immediately prior to plaintiff s stop, causing or contributing to the collision. Thus, defendant argues that the matter of plaintiffs comparative fault cannot be determined as a matter of law given the prevailing fact dispute. CONCLUSION Here, having reviewed the motion record in its entirety, with the exception of the uncertified police report, the Court believes that a triable question of fact exists here precluding partial summary judgmen t for plaintiff on the question of liability. In the first instance, the Court did not consider the uncertified copy of the police accident investigation report as it constituted inadmissible hearsay. Plaintiff made no effort to demonstrate that the document was certified at threshold , or further, that it fit within a cognizable hearsay exception (see e.g. Yassin v Blackman , 188 AD3d 62, 65-66, 131 NYS3d 53, 56 [2d Dept 2020]; Country-Wide Ins. Co. v Lobello, 186 AD3d 1213, 1215, 130 NYS3d 67, 69 [2d Dept 2020]). Next, plaintiffs submission of both parties deposition testimony only serves here to highlight the factual dispute and the necessity of referral of the question of liability for the subject incident to the factfinder for trial. While it is true that plaintiff testified that her vehicle 5 [* 5] 5 of 6 INDEX NO. 607461/2018 FILED: SUFFOLK COUNTY CLERK 02/25/2021 01:00 PM NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 02/25/2021 was stopped when rear-ended, she justified this claiming that she observed pedestrians entering or approaching a crosswalk. Therefore, plaintiff claims she yielded the right of way for pedestrian foot traffic. Defendant at her deposition testified she was driving in stop-and-traffic at no more than 5-10 mph and she observed plaintiff "suddenly stop." She denied observing pedestrians at, near, within or entering the crosswalk immediately prior or at time of the collision. Therefore, this matter presents the classic scenario of a question of credibility concerning the testimony. Because triable questions of fact exists precluding summary judgment on liability, plaintiffs motion is denied. All other contentions not expressly referenced herein are denied. The foregoing constitutes the decision and order of this Court. Dated : February 16, 2021 Riverhead, New York 7WILLIAM G. FORD, J.S.C. FlNAL DISPOSITION _X_ 6 [* 6] 6 of 6 NON-FINAL DISPOSITION

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