Bale v. Nastasi

• Decision Date: 17 October 2013
• Docket Number: Case No. 11–CV–4042 (KMK).
• Citation: 982 F.Supp.2d 250
• Parties: Stephanie BALE, Plaintiff, v. Carlo F. NASTASI and Margaret M. Nastasi, Defendants.
• Court: U.S. District Court — Southern District of New York

982 F.Supp.2d 250

Stephanie BALE, Plaintiff,

v.Carlo F. NASTASI and Margaret M. Nastasi, Defendants.

Case No. 11–CV–4042 (KMK).

United States District Court, S.D. New York.

Oct. 17, 2013.

Michael A. Madonna, Esq., Trolman, Glaser & Lichtman, P.C., New York, NY, for Plaintiff.

Mark A. Longo, Esq., Longo & D' Apice, Brooklyn, NY, for Defendants.

OPINION AND ORDER

KENNETH M. KARAS, District Judge:

Plaintiff Stephanie Bale (“Plaintiff”) was the passenger in a car that was rear-ended by a car driven by Defendant Margaret Nastasi. Plaintiff alleges the accident caused various injuries, and Plaintiff has sued for money damages. The Parties conducted discovery, and Plaintiff now moves for partial summary judgment on the issue of liability. For the reasons stated below, Plaintiff's motion for partial summary judgment is denied.

I. Background

A. Facts

1. Overview

On Friday, June 26, 2009, at approximately 4:30 pm, a 2008 Jeep Laredo, owned by co-Defendant Carlo Nastasi (“Carlo”) and operated by his wife, Defendant Margaret Nastasi (“Defendant”), rear-ended a 2005 Grand Caravan owned by Plaintiff and operated by her sister, Tracy Pettit (“Pettit”). ( See Nastasi Dep. 4:22–25, 5:2–16, 6:21–25, 8:19–21; Bale Dep. 8:13–21, 9:4–8, 15–19.) Both vehicles were traveling south on New Jersey's Garden State Parkway (“the Parkway”). Plaintiff was a passenger in her own vehicle, and she and Pettit were on their way to Atlantic City, New Jersey for the weekend. ( See Bale Dep. 9:4–6, 20–21; Pettit Dep. 5:14–19, 9:8–10, 11:4–10.) Defendant was alone in the car owned by her husband Carlo, and she was headed south to see her brother. ( See Nastasi Dep. 5:4–12, 6:3–5, 8–10, 18–20, 20:17–25.)

The weather was clear, dry, and sunny. ( See Bale Dep. 8:20–25, 9:2–3; Pettit Dep. 32:11–21.) But, as might be expected on a summer Friday afternoon, traffic was “heavy,” “stop and go,” and “bumper to bumper” immediately preceding the accident, according to the depositions. ( See Pettit Dep. 12:2–7; Bale Dep. 15:6–8; Nastasi Dep. 7:23–25, 20:10.) Defendant testified that, during this traffic jam, she saw Plaintiff's vehicle for the first time approximately one mile before the site of the accident. ( See Nastasi Dep. 8:2–8:18.) At that point, Defendant's vehicle was in the same lane of traffic as Plaintiff's vehicle, with Defendant one car behind Plaintiff. ( See id.) Neither Plaintiff nor Pettit recalled being specifically aware that Defendant was behind them before the accident. ( See Pettit Dep. 15:18–20; Bale Dep. 16:2–4.)

At approximately 4:30 p.m., as the cars crept southward on the Parkway, Defendants' car rear-ended the car in which Plaintiff was a passenger. The differing accounts of the critical seconds preceding the collision are analyzed in detail below. But everyone agrees about what happened immediately after the accident: Plaintiff and Defendant exited their respective vehicles, engaged in discussion, and agreed to call the police. ( See Nastasi Dep. 11:19–25, 12:2–14; Bale Dep. 27:7–13.) The telephone operator instructed the Parties to move their vehicles over to the right shoulder of the Parkway to wait for the police. ( See Nastasi Dep. 12:2–6; Bale Dep. 28:8–24.) When the police arrived, Defendant told the officials that Plaintiff's vehicle suddenly stopped in front of her, that Defendant applied her brake, and that there was “just impact, slight impact.” (Nastasi Dep. 12:18–21.) In her deposition, Defendant could not specifically remember whether she told the police that she “took [her] eyes off the road for a second and hit into [Plaintiff's vehicle,]” but the New Jersey Police Crash Investigation Report in the record reveals that Defendant did say this to the police. (Nastasi Dep. 15:12–22; see also N.J. Police Crash Investigation Report, Dkt. No. 3–1.) Plaintiff, in her deposition, did not recall exactly what she told the police when they arrived. ( See Bale Dep. 29:12–14.)

Plaintiff received no medical assistance at the scene of the accident, and was not taken to the hospital. ( See Bale Dep. 31:5–12, 32:2–11.) After concluding their interaction with the police, Plaintiff and Pettit continued southbound in their vehicle to Atlantic City, where they stayed until Sunday, June 28, 2009. ( See Bale Dep. 31:22–25, 32:3–5.)

2. The Crash

As explained further below, resolving Plaintiff's summary judgment motion turns on what occurred in the critical few seconds before impact. And exactly what happened is in dispute. Specifically, the following material facts are disputed: (i) how fast Pettit was driving before the accident; (ii) whether Plaintiff's vehicle came to a gradual or an abrupt stop; (iii) the amount of time that elapsed between Plaintiff's vehicle coming to a stop and the impact; (iv) the force of the contact between the vehicles.¹

a. The Rate of Speed

• Plaintiff's account: Pettit stated that the highest rate of speed she traveled on the Parkway that day was “[n]ot high at all because it was very traffickey.” (Pettit Dep. 11:22–23.) She stated that she had stopped her car “within a minute” prior to the stop that led to the accident and that the “highest speed” she traveled between those two stops was “five”—presumably, five miles per hour. ( See id. at 13:2–25, 14:9–11.)

• Defendants' account: Defendant stated that the fastest rate of speed she traveled in the mile before the accident occurred was fifteen miles per hour and that the slowest rate of speed was a complete stop. ( See Nastasi Dep. 19:7–16.) She also testified that she was traveling at a rate of fifteen miles per hour at the time of the accident. ( See id. at 7:15–17.) Defendant also testified that she observed Plaintiff's vehicle traveling at a rate of approximately fifteen miles per hour before it “suddenly stopped” and the accident occurred. ( See id. at 13:3–6.)

b. The Speed of the Stop

• Plaintiff's account: Plaintiff testified that the stop Pettit made right before the accident was “[g]radual.” (Bale Dep. 19:12–14.) Pettit testified that she stopped Plaintiff's vehicle because of heavy traffic within one minute before the accident,that the vehicle then traveled “a couple of feet,” stopped again, and was then rear-ended. (Pettit Dep. 13:7–16, 14:3–11.) Pettit further testified that she never applied the gas between the two stops and that approximately “[f]ive or six feet” separated her car from the rear of the vehicle in front of hers. (Pettit Dep. 14:12–14, 15:10–13.)

• Defendants' account: Defendant testified that Plaintiff's “[c]ar suddenly stopped in front of” her, and that Defendant then “applied the brake.” (Nastasi Dep. 12:18–21, 17:11–12.)

c. Time Between the Stop and Impact

• Plaintiff's account: Pettit testified that her vehicle had been stopped for a “few seconds” before the accident occurred. (Pettit Dep. 12:21–25.) When asked to specify, Pettit estimated that the vehicle had been stopped for “[t]hree seconds” before she was rear-ended. ( Id. at 12:24–25.) Plaintiff likewise said that the vehicle had been stopped for “[t]hree seconds” before it was hit from behind. (Bale Dep. 21:13–16.)

• Defendants' account: Defendant testified that one second elapsed between the time she saw Plaintiff's car “suddenly stop” and the time of the accident. (Nastasi Dep. 13:7–10.) In particular, Defendant testified that both vehicles were in motion when her cell phone, which was in the center console of her car, rang. ( See id. at 16:20–25, 17:1–3.) Defendant stated she became “distracted” because the ring “just startled [her].” ( Id. at 15:25, 16:2–7.) When her cell phone rang, Defendant's foot was “[s]lightly on the brake,” “[b]ecause traffic was stop and go.” ( Id. at 20:5–10.) Defendant stated that, while she may have been distracted, she did not look down at her cell phone, but instead she took her eyes off the road and turned her head either to the left or to the right. ( See id. at 16:6–16, 16:20–21.) From that moment until the time of impact, Defendant testified that she depressed the brake harder. ( See id. at 20:2–15.) When Defendant “turned back that quick, [Plaintiff's vehicle] suddenly had stopped,” and impact occurred “within that one second” “between the time [Defendant] heard [the] cell phone go off [and] the time [she] made contact.” ( Id. at 17:4–14.) Defendant stated that she did not see Plaintiff's vehicle come to a stop. ( See id. at 17:15–17.)

d. Force of the Contact

• Plaintiffs' account: Plaintiff described the contact as “heavy,” and Pettit described the contact as “jarring.” (Bale Dep. 21:6–9; Pettit Dep. 19:11–14.) Pettit testified that she first observed the damage to Plaintiff's vehicle in Atlantic City, New Jersey, where she saw that “[t]he whole back tailgate was crushed in.” (Pettit Dep. 20:11–19.) Plaintiff likewise claimed that “[t]he whole back tailgate was pushed in.” (Bale Dep. 22:19–21, 23:10–17.) Neither party took photos of the damage. ( See Bale Dep. 25:15–17.)

• Defendants' account: Defendant described the contact as a “soft,” “slight impact.” (Nastasi Dep. 8:22–24, 12:20–21.) Defendant described the damage to Plaintiff's car as “a dent in the hatchback part, about the size of a softball.” (Nastasi Dep. 9:6–11.) Defendant's vehicle did not sustain any damage. ( See id. at 9:12–13.)

B. This Proceeding

On June 14, 2011, Plaintiff filed this Complaint against Defendants seeking $5,000,000 in damages. Federal jurisdiction over this negligence action is based on diversity of citizenship, as Plaintiff and Defendants are residents of different states, and the amount in controversy exceeds the $75,000 threshold. ( See Compl. ¶¶ 1–4.)

On June 29, 2011, the Court ordered Plaintiff to show cause why this action should not be dismissed or transferred to the District of New Jersey because venue in New York was improper. (Dkt. No. 2.) Plaintiff responded two days later—but before the Court ruled on whether venue was proper, Defendants filed an answer that neither raised the issue of improper venue as an affirmative defense,...