Johnson v. Phillips

• Decision Date: 20 May 1999
• Citation: 690 N.Y.S.2d 545,261 A.D.2d 269
• Parties: ANDREW JOHNSON, Appellant,<BR>v.<BR>ARTHUR J. PHILLIPS, Respondent.
• Court: New York Supreme Court — Appellate Division

261 A.D.2d 269

690 N.Y.S.2d 545

ANDREW JOHNSON, Appellant,

v.ARTHUR J. PHILLIPS, Respondent.

Decided May 20, 1999.

Concur — Rosenberger, J. P., Williams, Tom and Mazzarelli, JJ.

In this appeal involving a rear-end automobile collision, we examine the parameters of the liability of the driver of the following car to the passenger in the front car. We also examine the sufficiency of that driver's opposition to the passenger's motion for summary judgment.

Plaintiff was a passenger in a vehicle heading southbound on Route 9 in Irvington. The driver of that vehicle stopped in the left lane at an intersection to make a left-hand turn. The southbound side of Route 9 is a two-lane roadway. As this car, over the course of about five seconds, waited to make its turn while northbound traffic cleared, the vehicle driven by defendant, also driving in a southerly direction, struck it in the rear. Plaintiff commenced an action against defendant and moved for summary judgment on the issue of liability. In support of the motion, certain documents were submitted, including plaintiff's affidavit, a Police Accident Report and a Motor Vehicle Accident Report (MV-104). The police report recorded that the accident occurred at 2:15 P.M. on a sunny day, and that defendant stated he could not see plaintiff's vehicle due to sun glare.

Defendant's opposition consisted of an unsworn statement on the MV-104 report. Defendant indicated that he entered the left lane as a consequence of tree-trimming activity in the right lane, that his vision was obstructed by glare and hence he had not seen the car in front of him and, in any event, the turning car had neither brake lights nor turn signal on. An affirmation from defendant's attorney in opposition to the motion basically reiterated aspects of the unsworn statement although, of course, counsel was not a party with personal knowledge of the facts. Notably, defendant has not commenced an action against the driver of the front car, nor has he asserted counterclaims alleging that driver's negligence.

The motion court, in denying the motion without prejudice, found the MV-104 form to present unresolved factual questions and was persuaded that the absence of discovery rendered the motion for summary judgment premature. However, the application of law to the essential facts as asserted by defendant, and defendant's failure to submit his own sworn attestations in opposition to the motion, when he would naturally be the party in possession of the relevant knowledge (Leal v Wolff, 224 AD2d 392), leaves defendant's opposition fatally deficient. Further discovery will not rectify these defects.

Initially, on a motion for summary judgment, parties must lay bare their proofs in non-hearsay form (Zuckerman v City of New York, 49 NY2d 557, 562). We have long adhered to the rule that the party opposing the motion must submit sufficient evidence, in admissible form, to establish that there is a triable issue (Zoldas v Louise Cab Corp., 108 AD2d 378, 383) or to explain why a proper tender of proof is not being made (Zuckerman v City of New York, supra), requirements unsatisfied here. Counsel's affirmation has no probative weight and cannot raise a triable issue (Zuckerman v City of New York, supra; Zoldas v Louise Cab Corp., supra, at 383; Rue v Stokes, 191 AD2d 245). In Stokes, this Court held that the unsworn, presumably self-serving, statements in a MV-104 accident report are hearsay, insufficient as a matter of law to raise triable factual issues, and cannot be considered in opposition to a motion for summary judgment. In that regard, we have characterized a motion court's reliance thereon to find an issue of fact to be "clear error" (Rue v Stokes, supra, at 246).

Similarly, the present motion court's sole reliance on counsel's affirmation and a MV-104 report was error.

As a matter of substantive law, the motion should have been granted. Drivers must maintain safe distances between their cars and cars in front of them (Vehicle and Traffic Law § 1129 [a]) and this rule imposes on them a duty to be aware of traffic conditions, including vehicle stoppages (Sass v Ambu Trans Inc., 238 AD2d 570). As we have phrased it, drivers have a "duty to see what should be seen and to exercise reasonable care under the circumstances to avoid an accident" (DeAngelis v Kirschner, 171 AD2d 593, 595). By now it is well established that a rear-end collision with a stopped vehicle establishes a prima facie case of negligence on the part of the operator of the second vehicle. This rule has been applied when the front vehicle stops suddenly in slow-moving traffic (Mascitti v Greene, 250 AD2d 821), even if the sudden stop is repetitive (Leal v Wolff, supra), when the front vehicle, although in stop-and-go traffic, stopped while crossing an intersection (Barba v Best Sec. Corp., 235 AD2d...