Fleet v. Morris
| Decision Date | 02 August 2017 |
| Docket Number | Index 616660/2016 |
| Citation | 2017 NY Slip Op 33390 (U) |
| Parties | RICHARD FLEET, Plaintiff, v. MICHAEL MORRIS, Defendant. |
| Court | New York Supreme Court |
DEFT'S ATTORNEY: DI PIPPO LAW GROUP LLC
PRESENT: HON. PAUL J. BAISLEY. JR.. J.S.C.
Upon the reading and filing of the following papers in this matter: (1) Notice of Motion by the plaintiff, dated March 22, 2017, and supporting papers; (2) Affirmations in Opposition by the defendant, dated May 4, 201 and May 10 2017, and supporting papers (including memorandum of law dated May 10, 2017; (3) Reply Affirmation by the plaintiff dated May 24, 2017, and supporting papers; (and after hearing counsels' oral arguments in support of and opposed to the motion); it is, ORDERED that the motion by the plaintiff for an order pursuant to CPLR 3212 granting summary judgment in his favor as to the defendant's liability is denied; and it is further
ORDERED that the parties are directed to appear for a preliminary conference pursuant to 22 NYCRR 202.8 (f) on August 29, 2017 at the Supreme Court, DCM Part, One Court Street, Riverhead, New York at 10:00 a.m.
The plaintiff commenced this e-filed action to recover damages for personal injuries allegedly sustained by him in a motor vehicle accident that occurred on June 8, 2016 on Deer Park Avenue at its intersection with Woods Road in Babylon, New York. The accident allegedly happened when the vehicle operated by the plaintiff was hit in the rear after it had stopped due to traffic conditions.
The plaintiff now moves for partial summary judgment as to the defendant's liability. The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issue of fact (see Alvarez v Prospect Hospital, 68 N.Y.2d 320, 508 N.Y.S.2d 923 [1986]; Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 487 N.Y.S.2d 316 [1985]). The burden then shifts to the party opposing the motion which must produce evidentiary proof in admissible form sufficient to require a trial of the material issues of fact (Roth v Barreto, 289 A.D.2d 557, 735 N.Y.S.2d 197 [2d Dept 2001]; Rebecchi v Whitmore, 172 A.D.2d 600, 568 N.Y.S.2d 423 [2d Dept 1991]; O'Neill v Town of Fishkill, 134 A.D.2d 487 521 N.Y.S.2d 272 T2d Dept 1987]).
In support of his motion, the plaintiff submits the pleadings, the affirmation of his attorney, his sworn affidavit, and a copy of a police accident report, Form MV-104A, regarding this accident. The police accident report record relied on by the plaintiff is plainly inadmissible and has not been considered by the Court in making this determination (see CPLR 4518 [c]; Cover v Cohen, 61 N.Y.2d 261, 473 N.Y.S.2d 378 [1984]; Cheul Soo Kang v Violante, 60 A.D.3d 991, 877 N.Y.S.2d 354 [2d Dept 2009]; Mooney v Osowiecky, 235 A.D.2d 603, 651 N.Y.S.2d 713 [3d Dept 1997]).
In his affidavit, the plaintiff swears that he was the owner and operator of a motor vehicle traveling southbound on Deer Park Avenue on June 8, 2016, that he brought his vehicle to a stop near its intersection with Woods Road because there was a police vehicle approaching said intersection, and that there were two vehicles in front of his that had also stopped to allow the police vehicle to proceed through the intersection. He states that he "had been stopped for several seconds" when he felt a violent impact to the rear of his vehicle, that it was a "clear day," and that "the roads were dry."
It is well settled that when a driver of a motor vehicle approaches another automobile from the rear, he or she is bound to maintain a safe rate of speed and has the duty to keep control over his or her vehicle, and to exercise reasonable care to avoid colliding with the other vehicle (Carhuayano v J & R Hacking, 28 A.D.3d 413, 813 N.Y.S.2d 162 [2d Dept 2006]; Gaeta v Carter, 6 A.D.3d 576, 775 NYS.2d 86 [2d Dept 2004]; Chepel v Meyers, 306 A.D.2d 235, 762 N.Y.S.2d 95 [2d Dept 2003]; Power v Hupart, 260 A.D.2d 458, 688 N.Y.S.2d 194 [2d Dept 1999]; see also Vehicle and Traffic Law § 1129 [a]). Moreover, a rear-end collision with a stopped or stopping vehicle creates a prima facie case of liability regarding the operator of the moving vehicle and imposes a duty of explanation on the operator of the moving vehicle to excuse the collision by providing a non-negligent explanation, such as a mechanical failure, a sudden stop of the vehicle ahead, and unavoidable skidding on a wet pavement or some other reasonable excuse (see Davidoff v Mullokandov, 74 A.D.3d 862, 903 N.Y.S.2d 107 [2d Dept 2010]; Carhuayano v J&R Hacking, supra; Rainford v Sung S. Han, 18 A.D.3d 638; 795 N.Y.S.2d 645 [2d Dept 2005]; Thoman v Rivera, 16 A.D.3d 667, 792 N.Y.S.2d 558 [2d Dept 2005]; Gaeta v Carter, supra).
The plaintiff has established his prima facie entitlement to summary judgment herein and it is incumbent upon the defendant to produce evidence in admissible form sufficient to require a trial of the material issues of fact (Roth v Barreto, supra; Rebecchi v Whitmore, supra; O'Neill v Fishkill, supra). In opposition to the plaintiffs motion, the defendant submits the affirmation of his attorney, and his sworn affidavit. In his affidavit, the defendant swears that he was the owner and operator of a motor vehicle traveling southbound on Deer Park Avenue on the date of this accident, that he was traveling behind the plaintiffs vehicle, and that the "roadway of Deer Park Avenue was wet at that time." He states that a police vehicle traveling eastbound on Woods Road "entered the intersection at a high rate of speed and without warning ... [and] engaged his lights and sirens as it was entering the intersection." He indicates that "all cars were required to come to a sudden and abrupt stop," that he forcefully applied his brakes, that his vehicle slid on the wet pavement, and that the impact with the plaintiffs vehicle was "extremely minor." The defendant further swears that he was traveling a "reasonable distance" behind the plaintiffs vehicle, that he allowed "enough distance to stop safely without impact had my vehicle not skidded on the wet pavement," and that he could not have done anything to avoid the incident because the plaintiff had stopped suddenly and without warning.
In his affirmation, counsel for the defendant contends, among other things, that the police accident report submitted by the plaintiff is inadmissible herein, that the defendant's affidavit creates issues of fact requiring a trial of this action, and that the plaintiffs has not made a prima facie showing of entitlement to summary judgment herein.
In reply, counsel for the plaintiff contends, among other things, that the police accident report is "admissible as it is a certified copy," that "both the plaintiff and the police officer who arrived at the scene ... noted that the pavement was dry," and that, if the defendant's vehicle skidded it was because he was operating his vehicle negligently, carelessly, and recklessly.
The copies of the police accident report submitted in support of the plaintiffs motion and in the reply, as well as the copy scanned to...
To continue reading
Request your trial