Bacelic v. Gordon
| Decision Date | 09 February 2021 |
| Docket Number | Index No. 609409/2020,Mot. Seq. Nos. 001 MotD,002 MotD |
| Citation | 2021 NY Slip Op 33799 (U) |
| Parties | DINO BACELIC, Plaintiff, v. EDWARD W. GORDON and MAX A. GORDON, Defendants. |
| Court | New York Supreme Court |
PLTF S ATTORNEY: OGEN & SEDAGHATI, P.C.
DEFTS' ATTORNEY: CARIELLO LAW FIRM
Upon the following papers read on these e-filed motions for summary judgment and to consolidate: Notice of Motion/ Order to Show Cause and supporting papers by plaintiff filed October 22, 2020; by defendants, filed December 7 2020; Notice of Cross Motion and supporting papers Answering Affidavits and supporting papers by defendants filed December 4, 2020; by plaintiff, filed January 12, 2021; Replying Affidavits and supporting papers by defendants, filed January 14, 2021; by plaintiff, filed January 18, 2021; Other_; it is
ORDERED that the motion (001) by plaintiff Dino Bacelic and the motion (002) by defendants Edward Gordon and Max Gordon are consolidated for the purpose of this determination; and it is further
ORDERED that the motion by plaintiff for, inter alia, summary judgment in his favor on the issue of defendants' liability is granted in part and denied in part; and it is further
ORDERED that the motion by defendants for an order consolidating this action with the action pending in this Court entitled GEICO General Insurance Company, a/s/o Dino Bacelic, plaintiff, against Edward W. Gordon and Max Gordon, defendants, assigned index number 605959/2020, or, in the alternative, for an order joining the two actions for trial is granted to the extent set forth herein, and is otherwise denied; and it is further
ORDERED that a separate note of issue and bill of costs shall be filed in each action, and that separate court fees shall be paid for each action; and it is further
ORDERED that a preliminary conference shall be held on March 2, 2021.
Plaintiff Dino Bacelic commenced this action to recover damages for personal injuries he allegedly sustained as a result of a motor vehicle accident that occurred on East Jericho Turnpike, near State Place, in Suffolk County, New York, on January 18, 2018. The complaint, filed on July 22, 2020, alleges that a vehicle owned by defendant Edward Gordon, and operated by defendant Max Gordon, collided with plaintiffs vehicle. Prior to the commencement of this action, on May 28, 2020, GEICO General Insurance Company ("GEICO"), as subrogee of Dino Bacelic, commenced a separate action in this Court, assigned index number 605959/2020, to recover payment it made to its insured for damages allegedly caused by defendants as a result of the same motor vehicle accident.
Plaintiff now moves for, inter alia, summary judgment in his favor on the issue of defendants' liability, and an order directing an immediate trial for the assessment of damages. Plaintiff also seeks, in effect, dismissal of defendants' first affirmative defense of culpable conduct and seventh affirmative defense of assumption of risk. In support of his motion, plaintiff submits, among other things, his affidavit and an uncertified police accident report. In opposition, defendants contend, in part, that plaintiffs motion was premature, and that the police accident reported submitted by plaintiff is not in admissible form. In support of their opposition, defendants submit the affirmation of their attorney.
Defendants also move to consolidate this action with the action pending in this Court entitled GEICO General Insurance Company, a/s/o Dino Bacelic, plaintiff, against Edward W. Gordon and Max Gordon, defendants, assigned index number 605959/2020, or, in the alternative, to join the two actions for trial. They argue, among other things, that the two actions arise out of the same motor vehicle accident, and involve common question of law and fact. Defendants also seek to amend the caption for this action. In support of their motion, defendants submit, among other things, a copy of the pleadings for the two actions. In opposition, plaintiff argues, in part, that both actions do not involve common questions of law and fact, and that consolidation would unduly prejudice plaintiff. Plaintiff also claims that GEICO was improperly served with defendants' motion papers by email. In reply, defendants argue, among other things, that GEICO's counsel confirmed service and receipt of their motion, and had no objection to it. Defendants submit emails between their counsel and GEICO's counsel.
A driver of a vehicle approaching another vehicle from the rear must maintain a reasonably safe distance and rate of speed under the prevailing conditions to avoid colliding with the other vehicle (see Vehicle and Traffic Law § 1129 [a]; Capuozzo v Miller, 188 A.D.3d 1137, 2020 NY Slip Op 07026 [2d Dept 2020]; Newman v Apollo Tech Iron Work Corp., 188 A.D.3d 902, 135 N.Y.S.3d 133 [2d Dept 2020]; Yassin v Blackman, 188 A.D.3d 62, 131 N.Y.S.3d 53 [2d Dept 2020]). 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, and thereby requires that operator to rebut the inference of negligence by providing a nonnegligent explanation for the collision (see Doloresv Grandpa's Bus Co., 189 A.D.3d 1539, 135 N.Y.S.3d 295 [2d Dept 2020]; Capuozzo v Miller, supra; Newman v Apollo Tech Iron Work Corp., 188 A.D.3d 902, 135 N.Y.S.3d 133 [2d Dept 2020]). A nonnegligent explanation may include evidence of a mechanical failure, a sudden, unexplained stop of the leading vehicle, an unavoidable skidding on wet pavement, or any other reasonable cause (see Clements v Giatas, 178 A.D.3d 894, 112 N.Y.S.3d 539 [2d Dept 2019]; Grant v Carrasco, 165 A.D.3d 631, 84 N.Y.S.3d 235 [2d Dept 2018]; Tumminello v City of New York, 148 A.D.3d 1084, 49 N.Y.S.3d 739 [2d Dept 2017]). However, a driver who follows another vehicle must anticipate that the leading vehicle may stop, even suddenly and frequently, based on prevailing traffic conditions (see Perez v Persad, 183 A.D.3d 771, 123 N.Y.S.3d 683 [2d Dept 2020]; Fang Xia v Saft, 177 A.D.3d 823, 113 N.Y.S.3d 249 [2d Dept 2019]; Catanzaro v Edery, 172 A.D.3d 995, 101 N.Y.S.3d 170 [2d Dept 2019]). Although a plaintiff is no longer required to show the absence of his or her comparative fault to establish prima facie entitlement to summary judgment on the issue of a defendant's liability, (see Rodriguez v City of New York, 31 N.Y.3d 312, 76 N.Y.S.3d 898 [2018]; Dolores v Grandpa's Bus Co., 189 A.D.3d 1539, 135 N.Y.S.3d 295 [2d Dept 2020]; Abtey v Trivigno, 188 A.D.3d 629, 134 N.Y.S.3d 401 [2d Dept 2020]), the issue of a plaintiffs comparative negligence may be decided in the context of a summary judgment motion where the plaintiff seeks summary judgment dismissing an affirmative defense alleging comparative negligence (see Maliakel v Morio, 185 A.D.3d 1014, 126 N.Y.S.3d 369 [2d Dept 2020]; Balladares v City of New York, 177 A.D.3d 942, 114 N.Y.S.3d 448 [2d Dept 2019]; Poon v Nisanov, 162 A.D.3d 804, 79 N.Y.S.3d 227 [2d Dept 2018]).
Plaintiff established his prima facie entitlement to summary judgment in his favor on the issue of defendant driver's liability (see Newman v Apollo Tech Iron Work Corp., supra; Hall v Powell, 183 A.D.3d 576, 121 N.Y.S.3d 632 [2d Dept 2020]; Rosenblum v Schloss, 175 A.D.3d 1339, 105 N.Y.S.3d 894 [2d Dept 2019]). Although the police accident report submitted by plaintiff and its contents constitute inadmissible hearsay, since the police accident report has not been certified, and a foundation for its admissibility has not been laid by some other method (see Yassin v Blackman, 188 A.D.3d 62, 131 N.Y.S.3d 53 [2d Dept 2020]), plaintiffs affidavit was sufficient to make a prima facie case of entitlement to summary judgment on the issue of defendant driver's negligence. By his affidavit, plaintiff avers that his vehicle was stopped for traffic for approximately three seconds when it was struck in the rear by a vehicle operated by defendant driver (see Newman v Apollo Tech Iron Work Corp., supra; Hall v Powell, supra; Rosenblum v Schloss, supra). In opposition, defendants failed to raise a triable issue of fact as to whether there was a nonnegligent explanation for the accident (see Hall v Powell, supra; Gelo v Meehan, 177 A.D.3d 707, 110 N.Y.S.3d 333 [2d Dept 2019]; Montalvo v Cedeno, 170 A.D.3d 1166, 96 N.Y.S.3d 638 [2d Dept 2019]). Defendants proffered only their attorney's affirmation, which, standing alone, was insufficient to raise a triable issue of fact (see CPLR 3212 [b]; Liu v Lowe, 173 A.D.3d 946, 102 N.Y.S.3d713 [2d Dept 2019]; Morales v Amar, 145 A.D.3d 1000, 44 N.Y.S.3d 184 [2d Dept 2016]).
Plaintiff also demonstrated his prima facie entitlement to summary judgment in his favor on the issue of defendant owner's liability (see Alvarez v Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923 [1986]). Vehicle and Traffic Law § 388 (1) provides that the owner of a motor vehicle is liable for damages resulting from the negligence of one who uses or operates that vehicle with the permission, express or implied, of such owner (see Matter of Allstate Ins Co. v Jae Kan.Shim, 185 A.D.3d 919, 128 N.Y.S.3d 49 [2d Dept 2020]; Kelly v Starr, 181 A.D.3d 799, 120 N.Y.S.3d 373 [2d Dept 2020]). To impose liability pursuant to Vehicle and Traffic Law § 388 (1), the plaintiff must demonstrate "negligence in the use or operation of the vehicle, and that the negligence was a cause of the injury" (Gray v Air Excel Serv. Corp., 171 A.D.3d 1026, 1028, 98 N.Y.S.3d 259 [2d Dept 2019], quoting Ciminello v Sullivan, 65 A.D.3d 1002,1003, 885 N.Y.S.2d 118 [2d Dept 2009]). The strong...
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