Colletti v. Periera, 2008 NY Slip Op 30369(U) (N.Y. Sup. Ct. 1/31/2008)
Decision Date | 31 January 2008 |
Docket Number | Motion Seq. No. 2.,0011037/2005.,Motion Cal. No. 12. |
Citation | 2008 NY Slip Op 30369 |
Parties | MAUREEN COLLETTI, MARCO COLLETTI, and DONNA LEE BOLLETTIERI, Plaintiffs, v. EILEEN PERIERA, FRANK SCAVO AND WILLIAM A. BUTLER, JR., Defendants. |
Court | New York Supreme Court |
Upon the foregoing papers, it is hereby ordered that the motion is disposed of as follows:
This is an action to recover damages for injuries allegedly sustained by plaintiffs Maureen Colletti, Marco Colletti, and Donna Lee Bollettieri ("plaintiffs"), passengers in a vehicle owned by defendant Frank Scavo ("Scavo"), and operated by defendant Eileen Pereira ("Pereira"), as a result of a motor vehicle accident that occurred on July 25, 2002, on State Road 82 north of Alley Road, in LaGrange, New York, between their vehicle and the vehicle operated by defendant William Butler ("Butler"). By order of this Court dated April 16, 2007, this Court (Satterfield, J.) denied, without prejudice to renew upon completion of discovery, defendant's motion for summary judgment and dismissal of the complaint on the ground that there were no triable issues of fact as the rear-end collision occurred while he was operating his vehicle while he was in the official discharge of his duties as a volunteer fireman, pursuant to General Municipal Law § 205-b. Defendant now moves inter alia, for leave to reargue the prior summary judgment motion.1 The motion, insofar as it seeks reargument, is granted.
It is well established that summary judgment should be granted when there is no doubt as to the absence of triable issues. See, Rotuba Extruders, Inc. v. Ceppos, 46 N.Y.2d 223, 231 (1978); Andre v. Pomeroy, 35 N.Y.2d 361, 364 (1974); Taft v. New York City Tr. Auth., 193 A.D.2d 503, 505 (1st Dept. 1993). As such, the function of the court on the instant motion is issue finding and not issue determination. See, D.B.D. Nominee, Inc., v. 814 10th Ave. Corp., 109 A.D.2d 668, 669 (2nd Dept. 1985). The proponent of a summary judgment motion must tender evidentiary proof in admissible form eliminating any material issues of fact from the case. See Zuckerman v. City of New York, 49 N.Y.2d 557, 562 (1980). If the proponent succeeds, the burden shifts to the party opposing the motion, who then must show the existence of material issues of fact by producing evidentiary proof in admissible form, in support of his position. See Zuckerman v. City of New York, supra.
As a general proposition, a rear-end collision establishes a prima facie case of negligence on the part of the operator of the rearmost vehicle and imposes a duty of explanation to excuse the collision either through a mechanical failure, a sudden stop of the vehicle ahead, an unavoidable skidding on a wet pavement, or any other reasonable cause. See, Milskiy v. Solanky, 8 A.D.3d 353 (2nd Dept.2004); Barile v. Lazzarini, 222 A.D.2d 635 (2nd Dept. 1995); see also McGregor v. Manzo, 295 A.D.2d 487 (2nd Dept. 2002); Gambino v. City of New York, 205 A.D.2d 583 (2nd Dept.1994); Power v. Hupart, 260 A.D.2d 458 (2nd Dept. 1999); see, also, Caputo v. Schaumeyer, 252 A.D.2d 512 (2nd Dept. 1998); Danza v. Longieliere, 256 A.D.2d 434 (2nd Dept. 1998). In short, the driver of the offending vehicle is required to rebut the inference of negligence, and if he or she cannot do so, the driver of the lead vehicle may properly be awarded judgment as a matter of law. See, McGregor v. Manzo, supra; see also Leal v. Wolff, 224 A.D.2d 392 (2nd Dept. 1996); Barile v. Lazzarini, 222 A.D.2d 635 (2nd 1995). This is because he or she is in the best position to explain whether the collision was due to a reasonable, non-negligent cause. Carter v. Castle Elec. Contr. Co., 26 A.D.2d 83, 85 (2nd Dept. 1966). If the operator cannot come forward with any evidence to rebut the inference of negligence, the moving party may properly be awarded judgment as a matter of law on the issue of liability. Lopez v. Minot, 258 A.D.2d 564 (2nd Dept. 1999).
Here, defendant asserts section 205-b of the General Municipal Law as a total defense, contending that pursuant to General Municipal Law § 205-b, he is insulated from liability arising from the rear-end collision that occurred while he was operating his vehicle during the official discharge of his duties as a volunteer fireman. The relevant statute states, in pertinent part, the following:
Members of duly organized volunteer fire companies in this state shall not be liable civilly for any act or acts done by them in the performance of their duty as volunteer firefighters, except for wilful negligence or malfeasance.
"Section 205-b provides for an immunity for volunteer firefighters for simple negligence, allowing liability only for "wilful negligence or malfeasance." Tobacco v. North Babylon Volunteer Fire Dept, 182 Misc.2d 480 (Supreme Court, Suffolk Co., 1999), appeal dismissed, 276 A.D.2d 551 (2nd Dept. 2000); see, Tikhonova v. Ford Motor Co., 4 N.Y.3d 621 (2005)[discussing Sikora v. Keillor, 13 N.Y.2d 610 (1963), in which the Court of Appeals affirmed, "without opinion, the Appellate Division's determination that no liability attaches to a vehicle owner where the negligent driver (a volunteer firefighter) was immune from suit under General Municipal Law § 205-b."].
Under the aforementioned section, although defendant cannot be held liable for ordinary negligence, if there is prima facie evidence of wilful negligence or malfeasance, then defendant Butler would not be entitled to the protection of the statutory provision. Defendant Butler submits his deposition testimony, the affidavits of officials of the LaGrange Fire Department attesting to his employment as a volunteer firefighter, the Emergency Vehicle Accident/Loss Investigation Report that was prepared by defendant Butler, and the Police Accident Report. The Emergency Vehicle Accident/Loss Investigation Report set forth: The accident report set forth: Defendant Butler testified at his deposition that the highest rate of speed that he achieved in his Chevy Lumina "would have been definitely not higher than 55 because...
To continue reading
Request your trial