Capuozzo v. Miller

• Decision Date: 25 November 2020
• Docket Number: 2018–08908,Index No. 603425/16
• Citation: 136 N.Y.S.3d 416,188 A.D.3d 1137
• Parties: Michael CAPUOZZO, et al., appellants, v. Carlyle V. MILLER, et al., respondents.
• Court: New York Supreme Court — Appellate Division

188 A.D.3d 1137

136 N.Y.S.3d 416

Michael CAPUOZZO, et al., appellants,

v.Carlyle V. MILLER, et al., respondents.

2018–08908

Index No. 603425/16

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

Argued—September 25, 2020

November 25, 2020

The Yankowitz Law Firm (Mischel & Horn, P.C., New York, N.Y. [Scott T. Horn ], of counsel), for appellants.

Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, New York, N.Y. (Gregory P. Regensburg of counsel), for respondents.

RUTH C. BALKIN, J.P., JEFFREY A. COHEN, JOSEPH J. MALTESE, PAUL WOOTEN, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from an order of the Supreme Court, Nassau County (George R. Peck, J.), dated May 24, 2018. The order granted the defendants' motion for leave to amend their answer to assert the emergency doctrine as an affirmative defense and denied the plaintiffs' cross motion for summary judgment on the issue of liability.

ORDERED that the order is reversed, on the law, with costs, the defendants' motion for leave to amend their answer to assert the emergency doctrine as an affirmative defense is denied, and the plaintiffs' cross motion for summary judgment on the issue of liability is granted.

On November 20, 2015, at about 5:00 p.m., a vehicle operated by the plaintiff Michael Capuozzo (hereinafter Michael), in which the plaintiff Antonietta Capuozzo (hereinafter Antonietta) was a passenger, was struck in the rear by a pickup truck operated by the defendant Carlyle V. Miller and owned by the defendants North Shore University Hospital and Northwell Health, Inc. The accident occurred in the left southbound lane of Lakeville Road in Lake Success. The plaintiffs commenced this personal injury action against the defendants. The defendants moved for leave to amend their answer to assert the emergency doctrine as an affirmative defense. The plaintiffs cross-moved for summary judgment on the issue of liability. The Supreme Court granted the defendants' motion and denied the plaintiffs' cross motion. The plaintiffs appeal.

" ‘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’ " ( Ordonez v. Lee , 177 A.D.3d 756, 757, 110 N.Y.S.3d 339, quoting Nsiah–Ababio v. Hunter , 78 A.D.3d 672, 672, 913 N.Y.S.2d 659 ; see McLaughlin v. Lunn , 137 A.D.3d 757, 757, 26 N.Y.S.3d 338 ). " ‘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, requiring that operator to come forward with evidence of a nonnegligent explanation for the collision to rebut the inference of negligence’ " ( D'Avilar v. Lu , 184 A.D.3d 774, 774, 124 N.Y.S.3d 248, quoting Jimenez v. Ramirez , 171 A.D.3d 902, 903, 98 N.Y.S.3d 131 ).

Here, the plaintiffs established their prima facie entitlement to judgment as a matter of law on the issue of liability through their deposition testimony and the deposition testimony of Miller. Michael testified that the vehicle he was operating was traveling in the left southbound lane of Lakeville Road at about 10 to 15 miles per hour when the vehicle traveling in front of him came to a gradual stop in the middle of the roadway. Michael testified that he gradually brought his vehicle to a complete stop approximately 10 to 15 feet away from the vehicle in front of him. Both Michael and Antonietta testified that approximately five seconds later, the vehicle in which they were traveling was struck in the rear by the pickup truck operated by Miller. Miller testified that at the time of the accident, traffic was moderate, meaning "[s]low" and "[l]ots of cars," and that the plaintiffs' vehicle was stopped when his pickup truck struck the rear of that vehicle.

In opposition, the defendants failed to raise a triable issue of fact as to whether there was a nonnegligent explanation for the happening of the accident, or whether the emergency doctrine applied to this case (see Alvarez v. Prospect Hosp. , 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 ). "[T]he emergency doctrine does not apply to typical accidents involving rear-end collisions because trailing drivers are required to leave a reasonable distance between their vehicles and vehicles ahead" ( Lowhar–Lewis v. Metropolitan...