Flores v Burgos

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Flores v Burgos 2021 NY Slip Op 33762(U) June 2, 2021 Supreme Court, Westchester County Docket Number: Index No. 58846/2020 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 06/03/2021 04:57 PM NYSCEF DOC. NO. 94 INDEX NO. 58846/2020 RECEIVED NYSCEF: 06/03/2021 commence the statutory statutory time time To commence period for appeals appeals as of of right right period (CPLR 5513 5513 [al), [a]), you are are (CPLR advised to serve serve a copy copy of of this this advised order, with with notice notice of of entry, order, upon all parties. parties. upon SUPREME COURT COURT OF THE THE STATE STATE OF NEW NEW YORK SUPREME YORK WESTCHESTER COUNTY COUNTY WESTCHESTER PRE SEN HON. SAM SAM D. WALKER, WALKER, J.S.C. J.S.C. P RES E N T: HON. -----------------------------------------------------------------------x -----------------------------------------------------------------------x MARISOL FLORES, FLORES, MARISOL DECISION & ORDER ORDER DECISION Index No. 58846/2020 58846/2020 Index ..1 Seq .. 1&2 Plaintiff, Plaintiff, -against-againstRUTH CASTRO CASTRO BURGOS BURGOS and EDDIE EDDIE H. RIVERA RIVERA RUTH Defendants. Defendants. ______________________________________________________ ------------------x ------------------------------------------------------------------------x The following following papers papers were were read on a motions motions for for summary summary judgment pursuant to judgment pursuant The CPLR 3212, 3212, on the issue issue of liability: liability: CPLR Notice of Motion/Affirmation/Exhibits Motion/Affirmation/Exhibits Notice 1-5 Affirmations in Opposition/Exhibits Affirmations Opposition/Exhibits 1-3 Reply Affirmation Reply Affirmation Notice of Motion/Affirmation/Exhibits Motion/Affirmation/Exhibits A-G A-G Notice Affirmations Opposition/Exhibits 1-2 Affirmations in Opposition/Exhibits Reply Affirmation Reply Affirmation Upon the the foregoing foregoing papers papers it is ordered ordered that that the motions motions are GRANTED. GRANTED. Upon FACTUAL AND PROCEDURAL BACKGROUND FACTUALANDPROCEDURALBACKGROUND The plaintiff, plaintiff, Marisol Marisol Flores Flores ("Flores"), ("Flores"), commenced commenced this action action to recover recover damages damages The for alleged alleged serious serious injuries injuries she sustained sustained in a motor motor vehicle vehicle accident accident which which occurred occurred on for October 4, 2017 2017 at or near near the the entrance entrance ramp used to enter enter Southern Southern Boulevard Boulevard from from October Bedford Park Park Boulevard Boulevard in Bronx Bronx County, County, New New York. York. The The plaintiff plaintiff alleges alleges that that while while she Bedford was a front front seat seat passenger passenger in a vehicle vehicle operated operated by the defendant, defendant, Eddie Eddie H. Rivera Rivera was ("Rivera"), that that vehicle· vehicle was was struck struck in the rear by a vehicle vehicle owned owned and operated operated by the ("Rivera"), 1 [* 1] 1 of 7 FILED: WESTCHESTER COUNTY CLERK 06/03/2021 04:57 PM NYSCEF DOC. NO. 94 INDEX NO. 58846/2020 RECEIVED NYSCEF: 06/03/2021 defendant, Ruth Castro Castro Burgos Burgos ("Burgos"). ("Burgos"). defendant, The plaintiff plaintiff commenced commenced the the action action by filing filing a summons summons and and complaint complaint in Bronx Bronx The County on November November 18, 2019. 2019. Rivera Rivera and Burgos Burgos interposed interposed answers, answers, the the plaintiff plaintiff moved moved County for a change change of of venue, venue, which which motion motion was was granted granted and the the matter· matter' was was transferred transferred to for Westchester County. County. Westchester Flores now now files files a motion motion for for summary summary judgment against the the defendants, defendants, pursuant pursuant Flores judgment against CPLR 3212 3212 on the the issue issue of of liability. liability. The The plaintiffs plaintiff's attorney attorney argues argues that that the the defendants defendants to CPLR violation of of VTL VTL 1129(a) 1129(a) and based based on the the applicable applicable case case law law Flores Flores is entitled entitled to are in violation partial summary summary judgment the issue issue of of liability, liability, since since the the occurrence occurrence of of the the rear-end rear-end partial judgment on the collision creates creates a prima prima facie facie case case of of liability liability on the the part part of of the the Burgos. Burgos. The The attorney attorney collision argues that that there there is clearly clearly no issue issue of of culpable culpable conduct conduct on Flores' Flores' part, who who was was a argues passenger in the the vehicle vehicle that that was was struck struck in the the rear rear and therefore, therefore, she she is entitled entitled to passenger summary judgment. summary judgment. Rivera also also files files a motion motion for for summary summary judgment, seeking dismissal dismissal of of the the complaint complaint Rivera judgment, seeking against him. In opposition opposition of of Flores' Flores' motion motion and in support support of of his own own motion motion for for summary summary against judgment, Rivera's attorney attorney argues argues that that no material material issues issues of of fact fact exist exist with with regard regard to judgment, Rivera's Rivera's negligence, negligence, since since Flores Flores was was a passenger passenger in his vehicle vehicle and and his vehicle vehicle was was rearrearRivera's ended by Burgos. Burgos. The The attorney attorney argues argues that that Burgos Burgos lacks lacks a non-negligent non-negligent explanation explanation for for ended failing to stop stop her her vehicle vehicle prior prior to the the collision. collision. failing Burgos opposes opposes the the motions motions for for summary summary judgment. Burgos' attorney attorney argues argues that that Burgos judgment. Burgos' there are different different versions versions of the facts with regard regard to the happening happening of the the accident, accident, the facts there .creating questions of fact fact and credibility credibility and precluding precluding summary summary judgment issue creating questions judgment on the the issue of liability. The attorney asserts asserts that Flores' testimony testimony that that the accident accident of liability. The attorney that in contrast contrast to Flores' 2 .2 [* 2] 2 of 7 FILED: WESTCHESTER COUNTY CLERK 06/03/2021 04:57 PM NYSCEF DOC. NO. 94 INDEX NO. 58846/2020 RECEIVED NYSCEF: 06/03/2021 occurred when when his his vehicle vehicle was was rear-ended rear-ended while while stopped stopped at a stop stop sign on the entrance entrance occurred after bringing bringing his vehicle vehicle to a gradual gradual stop, Burgos Burgos testified testified that that the the accident accident ramp and after occurred when when Rivera Rivera brought brought his vehicle vehicle to a sudden sudden and unexplained unexplained stop stop on the the occurred entrance ramp, after after both vehicles vehicles had passed passed the stop stop sign. Burgos' Burgos' attorney attorney contends contends entrance that summary summary judgment should not be granted granted since since there there are questions questions of fact fact and that judgment should credibility that that must must be resolved resolved by the jury Rivera's culpability culpability must mustbe determined by be determined credibility jury and Rivera's the jury. jury. Flores also also opposes opposes Rivera's Rivera's motion motion for for summary summary judgment, arguing that that although although Flores judgment, arguing undisputed that that Rivera's Rivera's vehicle vehicle was was rear-ended rear-ended by the vehicle vehicle owned owned and operated operated it is undisputed Burgos, it should should be left to the the trier trier of of fact fact to determine determine whether whether Rivera Rivera was was partially partially at by Burgos, fault and apportion apportion fault fault between between the drivers. drivers. fault reply to her her motion, motion, Flores' Flores' attorney attorney argues argues that that she she is an innocent innocent passenger passenger In reply who could could not possibly possibly be found found at fault fault and therefore, therefore, is entitled entitled to partial partial summary summary who judgment. The attorney attorney asserts asserts that that the Appellate Division, Second Second Department Department has stated stated judgment. The Appellate Division, that the right of of an innocent innocent passenger passenger to summary summary judgment restricted by questions questions judgment is not restricted that comparative negligence negligence as between between the drivers. drivers. of comparative motion, Rivera's Rivera's attorney attorney argues argues that that he has met met his burden burden and that that In reply to his motion, Flores and Burgos Burgos have have failed failed to raise a question question of fact fact as to how how the accident accident occurred. occurred. Flores The attorney attorney argues argues that that Burgos' Burgos' testimony testimony suggests suggests that that both Rivera's Rivera's and Burgos' Burgos' The vehicle left left the stop stop sign at the same same time, time, which which would would indicate indicate that that Burgos Burgos did not make make vehicle proper stop stop at the the stop stop sign and followed followed Rivera's Rivera's vehicle vehicle at an unsafe unsafe distance. distance. The The a proper attorney further further argues argues that that the the testimony testimony confirmed confirmed the existence existence of of moving moving vehicles vehicles on attorney Southern Boulevard, Boulevard, requiring requiring any any vehicle vehicle entering entering that that roadway roadway from from the the entrance entrance ramp, Southern 3 [* 3] 3 of 7 FILED: WESTCHESTER COUNTY CLERK 06/03/2021 04:57 PM NYSCEF DOC. NO. 94 INDEX NO. 58846/2020 RECEIVED NYSCEF: 06/03/2021 wait until until it was was safe safe to proceed. proceed. to wait The attorney attorney next next argues argues that that Bur~os Bur~os failed failed to introduce introduce any any admissible admissible evidence evidence The dispute that that Rivera's Rivera's vehicle vehicle was was completely completely stopped stopped at some some point point on the the entrance entrance to dispute ramp at the the time time of the the accident accident and the the exact exact location location where where the the vehicle vehicle was was stopped stopped is ramp irrelevant. irrelevant. Discussion Discussion a "[T]he proponent proponent of of a summary summary judgment motion must must make make a prima prima facie facie showing showing judgment motion "[T]he entitlementtoto judgment matter of of law, tendering tendering sufficient sufficient evidence evidence to demonstrate demonstrate of entitlement judgment as a matter the absence absence of of any any material material issues issues of of fact" fact" (see Alvarez Prospect Hosp., Hosp., 68 NY2d NY2d 320, the Alvarez v Prospect [1986]). Only Only when when such such a showing showing has been been made made must must the the opposing opposing party party set set forth forth 324 [19861). evidentiary proof proof establishing establishing the the existence existence of a material material issue issue of of fact, fact, Winegrad Winegrad v New New evidentiary York Univ. Med. Ctr., 64 NY2d NY2d 851,853 851, 853 [1985]). [1985]). York rear-end collision collision with a stopped stopped or stopping stopping vehicle vehicle creates creates a prima prima facie facie case case "A rear-end 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 negligence that operator operator to rebut rebut the the inference inference of negligence negligence by providing providing a nonnegligent nonnegligent explanation explanation that for the the collision" collision" (see Soko/owska Sokolowska v Song, 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 vPhil/ips, 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 957 957 271 [1999]; [1999]). [1999]). this case, case, both both Flores Flores and Rivera Rivera have have made made out out a prima prima facie facie showing showing of of their their In this entitlement to summary summary judgment matter of law, thereby thereby shifting shifting the burden burden to Burgos Burgos entitlement judgment as a matter demonstrate the the existence existence of a factual factual issue issue requiring requiring a trial (see (see Macauley Macauley v Elrac, Inc., to demonstrate 4 [* 4] 4 of 7 FILED: WESTCHESTER COUNTY CLERK 06/03/2021 04:57 PM NYSCEF DOC. NO. 94 INDEX NO. 58846/2020 RECEIVED NYSCEF: 06/03/2021 6 AD3d AD3d 584, 585 [2d Dept Dept 20041) 2004]) [Rear-end [Rear-end collision collision is sufficient sufficient to create create a prima prima facie facie case case of of liability.] liability.] If the operator operator of of the striking striking vehicle vehicle fails fails to rebut rebut this this presumption presumption and the inference inference of negligence, negligence, the operator operator of the stopped stopped vehicle vehicle is entitled entitled to summary summary judgment on the issue AD2d 205 [2d Dept judgment issue of of liability liability (see Leonard Leonard v City City of of New New York. 273 273 AD2d Dept 2000]; 2000]; Longhito Longhito v Klein. 273 AD2d AD2d 281 [2d Dept Dept 2000]; 2000]; Velasquez Velasquez v Quijada. Quijada. 269 269 AD2d AD2d 592 [2d Dept Dept 2000]; 2000]; Brant Brant v Senatobia Senatobia Operating Operating Corp., 269AD2d 269AD2d 483 483 [2d Dept Dept 20001). 2000]). Burgos' Burgos' attorney attorney asserts asserts a non-negligent non-negligent explanation explanation with respect respect to the happening happening of the accident. accident. However, However, the attorney attorney failed failed to provide provide a non-negligent non-negligent explanation explanation as to why why Burgos Burgos could could not stop stop before before hitting hitting Rivera's Rivera's vehicle. vehicle. New York York Vehicle Vehicle and Traffic Traffic Law§ Law ~ 1129 1129 states states in pertinent pertinent part part that: that: New The driver driver of of a motor motor vehicle vehicle shall not follow follow another another vehicle vehicle more more closely closely The than than is reasonable reasonable and prudent, prudent, having having due due regard regard for for the the speed speed of such such vehicles and the traffic traffic upon the condition condition of the the highway. highway. NY VTL VTL § ~ vehicles upon and the 1129 1129 (a) In (Leal (Leal v Wolff), the Second Second Department Department held that that "[s]ince "[s]ince the defendant defendant was was under under a duty duty to maintain maintain a safe safe distance distance between between his car and [the plaintiff's] plaintiff's] car car (see Vehicle Vehicle and Traffic Traffic Law Section Section 1129[a]), 1129[a]), his failure failure to do so in absence absence of of a non negligent negligent explanation explanation constituted constituted negligence negligence as a matter matter of law" (Leal (Leal v Wolf Wolf 224 224 AD2d AD2d 392 [2d Dept Dept 19961). 1996]). Further, Further, "[w]hen "[w]hen the the driver driver of of an automobile automobile approaches approaches from from the rear, he or she is bound to maintain maintain a reasonably reasonably safe safe rate of speed speed and control control over over his or her her vehicle, vehicle, and bound to exercise exercise reasonable reasonable care care to avoid avoid colliding colliding with the other other vehicle" vehicle" (see Zweeres Zweeres v Materi, Materi, 94 AD3d AD3d 1111 [2d Dept Dept 20121). 2012]). "Drivers "Drivers have a duty duty to see what what should should be seen seen and to exercise exercise reasonable reasonable care care under under the circumstances circumstances to avoid avoid an accident" accident" (Id.). (Id.). Burgos Burgos failed failed to offer offer any any non-negligent non-negligent explanation explanation for for the the accident accident and the 5 [* 5] 5 of 7 FILED: WESTCHESTER COUNTY CLERK 06/03/2021 04:57 PM NYSCEF DOC. NO. 94 INDEX NO. 58846/2020 RECEIVED NYSCEF: 06/03/2021 opposition opposition does does not not create create any any issues issues of of fact fact with regard regard to liability. liability. Burgos' Burgos' assertion assertion that that Rivera Rivera stopped stopped at the the stop stop sign sign and then then stopped stopped suddenly suddenly after after the the sign, sign, does does not offer offer a non-negligent non-negligent explanation explanation for for why why she she could could not not stop stop before before hitting hitting the the plaintiff's plaintiff's vehicle vehicle does not not create create an issue issue of of material material fact. fact. She She was was required required to stop stop at the the stop stop sign and and does if there there was was traffic traffic approaching approaching that that required required Rivera Rivera to stop stop his vehicle vehicle after after leaving leaving the the stop sign, Burgos Burgos was was required required to pay attention attention to the the vehicle vehicle in front front of of her her and not follow follow stop at so close close a distance distance that that she she could could not not stop. stop. Further, Further, Burgos Burgos clearly clearly stated stated in her testimony that that she does does not "recall "recall rather rather well well how how the the accident accident took took place". place". Additionally, Additionally, testimony the movants movants are not re.quired required to show show the the absence absence of of comparative comparative fault fault for for a grant grant of of the summary judgment (Rodriguez summary judgment (Rodriguez v City City of of New New York, 31 NY3d NY3d 312 312 [20181). [2018]). Furthermore, Furthermore, with with regard regard to Flores, Flores, "[t]he "[t]he right right of of an innocent innocent passenger passenger to an award judgment on the award of of summary summary judgment the issue issue of of liability liability against against one one driver driver is not not barred barred or or restricted by poter:1tial pote~tial issues issues of of comparative comparative fault fault as between between that that driver driver and the the driver driver of of restricted another another vehicle vehicle involved involved in the the accident" accident" (Rodriguez (Rodriguez vFarre/1, vFarrell, 115 115 AD3d AD 3d 929, 929, 931 [2d Dept Dept 20141). 2014]). Burgos Burgos did not not establish establish the the existence existence of of any any material material issue issue of of fact fact to rebut rebut Flores' Flores' and Rivera's Rivera's prima prima facie facie showing showing of entitlement entitlement to summary summary judgment. judgment. Accordingly, Accordingly, based based on all the the foregoing, foregoing, it is t ORDERED that that the the plaintiff, plaintiff, Marisol Marisol Flores' Flores' motion motion for for summary summary judgment ORDERED judgment on the issue issue of liability liability is granted; granted; and it is further further ORDERED ORDERED that that the the defendant, defendant, Eddie Eddie H. Rivera's Rivera's motion motion for for summary summary judgment judgment is granted; and it is further further granted; ORDERED that that the the action action as against against Eddie Eddie H. Rivera Rivera is dismissed. dismissed. ORDERED 6 [* 6] 6 of 7 FILED: WESTCHESTER COUNTY CLERK 06/03/2021 04:57 PM NYSCEF DOC. NO. 94 INDEX NO. 58846/2020 RECEIVED NYSCEF: 06/03/2021 The The foregoing foregoing shall shall constitute constitute the the Decision Decision and Order Order of of the the Court. Court. Dated: Dated: White White Plains, Plains, New New York York June 2, 2,2021 June 2021 tb./A, t.-f2. tP..,{t/J~ SAM D. WALKER, WALKER, J.S.C. J.S.C. N. SAM 7 [* 7] 7 of 7

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