Phillip v. D & D Carting Co.

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: DILLON, J.P.
• Citation: Phillip v. D & D Carting Co., 136 A.D.3d 18, 22 N.Y.S.3d 75 (N.Y. App. Div. 2015)
• Decision Date: 09 December 2015
• Parties: Meshele PHILLIP, respondent, v. D & D CARTING CO., INC., et al., appellants, et al., defendants (and other titles).

136 A.D.3d 18

22 N.Y.S.3d 75

Meshele PHILLIP, respondent,

v.D & D CARTING CO., INC., et al., appellants, et al., defendants (and other titles).

Supreme Court, Appellate Division, Second Department, New York.

Dec. 9, 2015.

McCabe, Collins, McGeough & Fowler, LLP, Carle Place, N.Y. (Patrick M. Murphy of counsel), for appellants.

Koenigsberg & Associates, P.C. Law Offices, Brooklyn, N.Y. (Richard S. Weiss of counsel), for respondent.

MARK C. DILLON, J.P., ROBERT J. MILLER, JOSEPH J. MALTESE, and COLLEEN D. DUFFY, JJ.

DILLON, J.P.

I. Facts

This appeal arises out of a two-vehicle, rear-end collision that occurred on November 7, 2011, at the intersection of Flatbush Avenue and Beverley Road in Brooklyn. The lead vehicle, a passenger van, was owned by the defendants Sunjet Express, Inc. (hereinafter Sunjet), and Petamar Prasad, and operated by the defendant Derrick Valentine Johnson (hereinafter collectively the Sunjet defendants). The rear vehicle was a garbage truck owned by the defendant D & D Carting Co., Inc. (hereinafter D & D), and operated by the defendant Eric Gutierrez. The van was stopped on Flatbush Avenue discharging passengers at its intersection with Beverley Road when it was struck in the rear by the truck. The plaintiff, who was seated in the last row of the van with her seat belt on, allegedly was injured as a result of the impact between the truck and the van. The truck's operator, Gutierrez, explained in an affidavit that as he approached a red light at the intersection, he applied his brakes in a normal fashion, but his truck skidded on oil on the surface of the roadway. Gutierrez asserted that, as a result, he was unable to stop the truck, and it struck the back of the van. According to Gutierrez, at the moment of impact, the van was parked in a manner that partially blocked a moving lane of traffic. Thereafter, the plaintiff commenced this action against D & D, Gutierrez, and the Sunjet defendants, seeking to recover damages for personal injuries.

After the exchange of certain documentary discovery, but before any party depositions were conducted, the Sunjet defendants moved for summary judgment dismissing the complaint insofar as asserted against them. The plaintiff separately moved for summary judgment on the issue of liability insofar as asserted against D & D and Gutierrez, but made no motion against the Sunjet defendants. The Sunjet defendants separately moved for summary judgment in a related action arising out of the accident that involved another plaintiff.

As relevant here, the plaintiff argued, in support of her motion, that she was entitled to summary judgment on the issue of liability against D & D and Gutierrez on the ground that she was a non-operator, innocent passenger in the stopped van and that, as such, her conduct could not have been a proximate cause of the rear-end collision between the truck and the van. And, although she alleged in her complaint that the Sunjet defendants were at fault in the happening of the accident, the plaintiff specifically argued in her motion papers that the sole proximate cause of the accident was Gutierrez's failure to maintain control over the truck.

D & D and Gutierrez opposed the plaintiff's motion for summary judgment, contending both that Gutierrez was not at fault for the accident because the truck skidded on oil, and that the negligence of the van's operator contributed to the accident. In support of their position, they submitted Gutierrez's affidavit, in which he attributed the accident, in part, to the skidding of the truck on roadway oil. D & D and Gutierrez thus argued that the incident was an "unavoidable accident," occasioned by the presence of oil on the roadway, without negligence on the part of Gutierrez. Although Gutierrez averred that he took a photograph of the oil at the scene with his cell phone, as reproduced in the record, the quality of the photograph which allegedly depicts oil spots on the roadway is poor. Gutierrez's affidavit also attributed the accident, in part, to the van operator's negligence in parking the van in such a manner that it was partially situated in a moving lane of traffic at the time of the collision. Despite the fact that D & D and Gutierrez had asserted the affirmative defense of contributory negligence in their answer, they did not dispute the plaintiff's averments that she was seated in the rear of the van with her seat belt on when the accident occurred, or suggest that she was in any manner at fault.

In the order appealed from, dated December 20, 2013, the Supreme Court denied the Sunjet defendants' motion for summary judgment dismissing the complaint insofar as asserted against them, without prejudice to renewal upon the completion of depositions, and granted the plaintiff's motion for summary judgment on the issue of liability insofar as asserted against D & D and Gutierrez. D & D and Gutierrez appeal, as limited by their brief, from so much of the order as granted the plaintiff's motion.

For the reasons set forth below, we reverse the order insofar as appealed from, and conclude that the plaintiff is not entitled to summary judgment on the issue of liability against D & D and Gutierrez. However, since the plaintiff's freedom from comparative fault is incontrovertible on this record, we further conclude that she is entitled to the entry of an order pursuant to CPLR 3212(g) specifying that she was free from comparative fault in the happening of the accident.

II. Legal Analysis

The procedure for determining motions for summary judgment has often been described. The party seeking summary judgment bears the initial burden of establishing his or her prima facie entitlement to judgment as a matter of law, tendering evidence sufficient to eliminate any triable, material issues of fact from the case (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 ; Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 ; Sillman v. Twentieth Century–Fox Film Corp., 3 N.Y.2d 395, 404, 165 N.Y.S.2d 498, 144 N.E.2d 387 ). The evidence submitted in support of a motion for summary judgment must be in a form that would render it admissible at trial (see Friends of Animals v. Associated Fur Mfrs., 46 N.Y.2d 1065, 1067–1068, 416 N.Y.S.2d 790, 390 N.E.2d 298 ). If the moving party fails to meet his or her prima facie burden, the papers submitted in opposition need not be considered (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 ). Conversely, if the moving party makes a prima facie showing, the burden shifts to the opposing party to demonstrate the existence of an issue of fact requiring a trial (see Alvarez v. Prospect Hosp., 68 N.Y.2d at 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 ; Zuckerman v. City of New York, 49 N.Y.2d at 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 ; Friends of Animals v. Associated Fur Mfrs., 46 N.Y.2d at 1068, 416 N.Y.S.2d 790, 390 N.E.2d 298 ).

"A rear-end collision with a stopped or stopping vehicle creates a prima facie case of negligence with respect to the operator of the moving vehicle and imposes a duty on the operator [of the offending vehicle] to rebut the inference of negligence by providing a non-negligent explanation for the collision" (Delgado v. Bang, 120 A.D.3d 608, 609, 991 N.Y.S.2d 649 ; see D'Agostino v. YRC, Inc., 120 A.D.3d 1291, 992 N.Y.S.2d 358 ; Billis v. Tunjian, 120 A.D.3d 1168, 992 N.Y.S.2d 319 ; O'Rourke v. Carucci, 117 A.D.3d 1015, 986 N.Y.S.2d 521 ; Robayo v. Aghaabdul, 109 A.D.3d 892, 893, 971 N.Y.S.2d 317 ; Mallen v. Su, 67 A.D.3d 974, 890 N.Y.S.2d 79 ). To prevail on a motion for summary judgment on the issue of liability, a plaintiff must establish, prima facie, not only that the opposing party was negligent, but also that the plaintiff was free from comparative fault (see Thoma v. Ronai, 82 N.Y.2d 736, 737, 602 N.Y.S.2d 323, 621 N.E.2d 690 ; Espinoza v. Coca–Cola Bottling Co. of N.Y., Inc., 121 A.D.3d 640, 993 N.Y.S.2d 721 ; Gorenkoff v. Nagar, 120 A.D.3d 470, 990 N.Y.S.2d 604 ; Lu Yuan Yang v. Howsal Cab Corp., 106 A.D.3d 1055, 1055–1056, 966 N.Y.S.2d 167 ).

Thus, a plaintiff has a twofold burden that trial courts must bear in mind when determining motions for summary judgment, because more than one actor may be a proximate cause of a single accident (see Adobea v. Junel, 114 A.D.3d 818, 980 N.Y.S.2d 564 ; Ramos v. Bartis, 112 A.D.3d 804, 977 N.Y.S.2d 315 ; Allen v. Echols, 88 A.D.3d 926, 927, 931 N.Y.S.2d 402 ; Pollack v. Margolin, 84 A.D.3d 1341, 1342, 924 N.Y.S.2d 282 ; Lopez v. Reyes–Flores, 52 A.D.3d 785, 786, 861 N.Y.S.2d 389 ).

Here, the plaintiff met her prima facie burden of demonstrating her entitlement to judgment as a matter of law with respect to both aspects of the twofold test. The plaintiff could rely upon the legal inference that D & D and Gutierrez were negligent, as it was clear from the submissions that their garbage truck struck the van in the rear while the van was in a stopped position at the scene of the accident (see Billis v. Tunjian, 120 A.D.3d 1168, 992 N.Y.S.2d 319 ; Amador v. City of New York, 120 A.D.3d 526, 991 N.Y.S.2d 637 ; Cajas–Romero v. Ward, 106 A.D.3d 850, 851, 965 N.Y.S.2d 559 ; Kertesz v. Jason Transp. Corp., 102 A.D.3d 658, 658–659, 957 N.Y.S.2d 730 ; Menelas v. Yearwood–Bobb, 100 A.D.3d 603, 604–605, 953 N.Y.S.2d 286 ; Ramos v. TC Paratransit, 96 A.D.3d 924, 925, 946 N.Y.S.2d 644 ). Moreover, the plaintiff established that she did not engage in any culpable conduct that contributed to the happening of the accident, as she was a mere passenger within the van, without any control over its positioning and operation upon the roadway (see Rodriguez v. Farrell, 115 A.D.3d 929, 983 N.Y.S.2d 68 ; Medina v. Rodriguez, 92 A.D.3d 850, 851, 939 N.Y.S.2d 514 ; Garcia v. Tri–County Ambulette Serv., 282 A.D.2d 206, 207, 723 N.Y.S.2d 163 ).

In granting the plaintiff's motion for summary judgment on the issue of liability insofar as asserted against D...