Antenord v. Johnson
| Docket Number | Index 625461/2018 |
| Decision Date | 07 August 2019 |
| Citation | 2019 NY Slip Op 34368 (U) |
| Parties | PIERRE E. ANTENORD and ILIODA ANTENORD, Plaintiffs, v. EMILY C. JOHNSON and PATRICIA R. JOHNSON, Defendants. |
| Court | New York Supreme Court |
PLTF'S ATTORNEY: ARIEL AMINOV, PLLC
DEFT'S ATTORNEY: RUSSO & TAMBASCO, ESQS.
PRESENT: Hon. Paul J. Baisley. Jr.. J.S.C.
Upon the following papers read on this motion for partial summary judgment: Notice of Motion and supporting papers by the plaintiffs, dated March 27, 2019; Answering Affidavits and supporting papers by the defendants, dated May 7. 2019; Replying Affidavits and supporting papers by the plaintiffs, dated May 10. 2019; (and after hearing counsel in support and opposed to the motion) it is, ORDERED that the motion by plaintiffs Pierre E. Antenord and Ilioda Antenord for an order pursuant to CPLR 3212, granting summary judgment in their favor on the issue of liability and dismissing all affirmative defenses and counterclaims alleging comparative negligence, is granted to the extent of granting summary judgment in their favor on the issue of liability, and is otherwise denied; and it is further
ORDERED that the parties shall appear for a preliminary conference at 10:00 a.m. on August 22, 2019, at the DCM-J Part of the Supreme Court, One Court Street, Riverhead, New York.
This action was commenced by plaintiffs Pierre E. Antenord and Ilioda Antenord to recover damages for injuries they allegedly sustained on June 14, 2018, when their motor vehicle was struck in the rear by a vehicle owned by defendant Patricia R. Johnson and operated by defendant Emily C. Johnson.
Plaintiffs now move for partial summary judgment in their favor as to defendants' negligence, arguing that defendants' actions were the sole proximate cause of their alleged injuries. Plaintiffs also move for an order dismissing defendants' affirmative defenses relating to comparative negligence and dismissing the counterclaim asserted against plaintiff Pierre Antenord. In support of their motion plaintiffs submit, among other things, copies of the pleadings, plaintiffs' own affidavits, and a certified copy of an MV-104A police accident report.
In his affidavit, Pierre Antenord states that at approximately 8:00 a.m. on the date in question he was operating a motor vehicle westbound in the right lane of Veterans Memorial Highway in Ronkonkoma, New York. He indicates that at a point approximately 200 feet west of the intersection of Veterans Memorial Highway and Trade Zone Drive, his vehicle was suddenly and unexpectedly struck in the rear by a vehicle operated by Emily Johnson. A second, nearly identical affidavit was submitted by Ilioda Antenord.
A party moving for 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 Hasp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923 [1986]). Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers (Winegrad v New York Univ. Med. Ctr., 64N.Y.2d 851, 853, 487 N.Y.S.2d 316 [1985]). If the moving party produces the requisite evidence, the burden then shifts to the nonmoving party to establish the existence of material issues of fact which require a trial of the action (see Vega v Restani Constr. Corp., 18 N.Y.3d 499, 942 N.Y.S.2d 13 [2012]; Zuckerman v City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595 [1980]). Mere conclusions or unsubstantiated allegations are insufficient to raise a triable issue (see O Brien v Port Auth. of N.Y.& N.J., 29 N.Y.3d 27, 52 N.Y.S.3d 68 [2017]). In deciding the motion, the Court must view all evidence in the light most favorable to the nonmoving party (see Ortiz v Varsity Holdings, LLC, 18 N.Y.3d 335, 339, 937 N.Y.S.2d 157 [2011]).
A plaintiff "is no longer required to show freedom from comparative fault in order to establish his [or her] prima facie entitlement to judgment as a matter of law on the issue of liability" (Merino v Tessel, 166 A.D.3d 760, 760, 87 N.Y.S.3d 554 [2d Dept 2018]; see Rodriguez v City of New York, 31 N.Y.3d 312, 76 N.Y.S.3d 898 [2018]). The Vehicle and Traffic Law establishes standards of care for motorists, and an unexcused violation of such standards of care constitutes negligence per se (see Shui-Kwan Lui v Serrom, 103 A.D.3d 620, 959 N.Y.S.2d 270 [2d Dept 2013]; Barbieri v Vokoun, 72 A.D.3d 853, 900 N.Y.S.2d315[2dDept2010]).
A driver of a vehicle approaching another vehicle from the rear "is required to maintain a reasonably safe distance and rate of speed under the prevailing conditions to avoid colliding with the other vehicle" (Auguste v Jeter, 167 A.D.3d 560, 560, 88 N.Y.S.3d 509 [2d Dept 2018], quoting Nsiah-Ababio v Hunter, 78 A.D.3d 672, 672, 913 N.Y.S.2d 659 [2d Dept 2010]; see Vehicle and Traffic Law § 1129 [a]). "A rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the operator of the rear vehicle, thereby requiring that operator to rebut the inference of negligence by providing a nonnegligent explanation for the collision" (Buchanan v Keller, 169 A.D.3d 989, 991, 95 N.Y.S.3d 252 [2d Dept 2019]; see Tutrani v County of Suffolk, 10 N.Y.3d 906, 861 N.Y.S.2d 610 [2008]). Examples of such non-negligent explanations include mechanical failure, a sudden, unexplained stop of the vehicle ahead, an unavoidable skidding on wet pavement, or any other reasonable cause (Tumminello v City of New York, 148 A.D.3d 1084, 49 N.Y.S.3d 739 [2d Dept 2017]; see also Foti v Fleetwood Ride, Inc., 57 A.D.3d 724, 871 N.Y.S.2d 215 [2d Dept 2008]; Klopchin v Masri, 45 A.D.3d 737, 846 N.Y.S.2d 311 [2d Dept 2007]; Filippazzo v Santiago, 277 A.D.2d 419, 716 N.Y.S.2d 710 [2d Dept 2000]). Moreover, an operator of a motor vehicle has a "common-law duty to see that which [he or she] should have seen through the proper use of [his or her] senses" (Botero v Erraez, 289 A.D.2d 274, 275, 734 N.Y.S.2d 565, 566 [2d Dept 2001]; see also Ferrara v Castro, 283 A.D.2d 392, 724 N.Y.S.2d 81 [2d Dept 2001]).
Plaintiffs' submissions established a prima facie case of entitlement to judgment in their favor on the issue of defendants' liability for their alleged injuries (see Buchanan v Keller, supra; Cortese v Pobejimov, 136 A.D.3d 635, 24 N.Y.S.3d 405 [2d Dept 2016]; see generally Alvarez v Prospect Hosp., supra). Plaintiff driver demonstrated that his vehicle was struck in the rear by defendants' vehicle without warning. In addition, as to defendant vehicle owner Patricia Johnson, Vehicle and Traffic Law § 388 (1) provides that "[e]very owner of a vehicle used or operated in this state shall be liable and responsible for. . . injuries to person or property resulting from negligence in the use or operation of such vehicle by any person using or operating the same with the permission, express or implied, of such owner." With regard to that portion of plaintiffs' motion seeking an order striking defendants' affirmative defense of comparative negligence, "the issue of a plaintiff s comparative negligence may be decided in the context of a summary judgment motion where, as here, the plaintiff moved for summary judgment dismissing a defendant's affirmative defense of comparative negligence" (Poon v Nisanov, 162 A.D.3d 804, 808, 79 N.Y.S.3d 227 [2d Dept 2018]). Plaintiffs' sparse affidavits, however, are insufficient to demonstrate, prima facie, that defendant driver's actions were the sole proximate cause of the collision (see Lopez v Dobbins, 164 A.D.3d 776, 79 N.Y.S.3d 566 [2d Dept 2018]). Even assuming, arguendo, that plaintiffs' affidavits established a prima facie case as to those issues, defendant driver's affidavit, as outlined below, raises a triable issue. Thus, those portions of plaintiffs' motion seeking dismissal of defendants' affirmative defense of comparative negligence and their counterclaim are denied. The burden then shifted to defendants to raise a triable issue as to liability (see generally Vega v...
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