Lee v. Casado

• Decision Date: 20 April 2016
• Docket Number: Index No. 70116/14
• Citation: 2016 NY Slip Op 33169 (U)
• Parties: SANG SOON LEE and SEONG DEOK HONG, Plaintiff, v. MARIA CASADO, Defendant
• Court: New York Supreme Court

2016 NY Slip Op 33169(U)

SANG SOON LEE and SEONG DEOK HONG, Plaintiff,
v.
MARIA CASADO, Defendant

Index No. 70116/14

Supreme Court, Westchester County

April 20, 2016

Unpublished opinion

MOTION DATE: 4/15/16

To commence the statutory period of appeals as of right (CPLR 5513[a]), you are advised to serve a copy of this Order, with notice of entry, upon all parties.

William Schwitzer & Assoc, P.C. Attys. For Pltfs.

Law Office of Bryan M. Kulak Attys. For Deft.

PRESENT: HON. MARY H. SMITH SUPREME COURT JUSTICE

DECISION AND ORDER

MARY K. SMITH J.S.C.

The following papers numbered 1 to 6 were read on this motion by plaintiffs for partial summary judgment on the issue of liability, etc.

Papers Numbered
Notice of Motion - Affirmation (Batchvarov) - Exhs. (A-E)............................................	1-3
Answering Affirmation (Dillon) - Affidavit (Casado) - Exh.............................................	4-5
Replying Affirmation (Batchvarov)................................................................................	6

Upon the foregoing papers, it is Ordered and adjudged that this motion by plaintiffs for partial summary judgment on the issue of liability is granted.

This personal injury action to recover for "serious injuries" arises out of a three-vehicle collision that had occurred, at approximately 8:00 p.m., on September 18, 2014, on a north-bound lane of the Major Deegan Expressway, in the Bronx. At the time of the

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subject crash, non-party Yohn Zapata a/k/a John Zapata had been a passenger in a vehicle owned and operated by an unknown third party, which vehicle this Court shall identify as the Zapata vehicle. Behind the Zapata vehicle had been the vehicle owned by plaintiff Phil Wan Lee and driven by plaintiff Seong Deok Hong, which the Court shall identify as the Hong vehicle. Behind the Hong vehicle had been defendant Casado's vehicle. The record at bar, which includes affidavits from each plaintiff and defendant, as well a copy of the MV-104 Accident Report, establishes that traffic had been "slow moving" and the Hong vehicle had been behind the Zapata vehicle, whereupon it had been struck in the rear by defendant Casado's vehicle, the force of which impact had caused the Hong vehicle to crash into the rear of the Zapata vehicle.

Plaintiffs presently are moving for partial summary judgment on the issue of liability, relying upon the extensive body of law holding that a rear end collision creates a presumption of liability against the rear driver and arguing that there is no evidence supporting any finding of plaintiffs' comparative negligence.

Defendant has submitted her affidavit wherein she claims that, immediately prior to impact, she had been "maintaining a reasonable distance between [her] vehicle and the vehicle directly in front of [her],"i.e., the Hong vehicle, and that she suddenly had become emotionally upset at the realization that said date had been the anniversary of the date she first had learned that her son suffered from a serious life-threatening illness, whereupon she had begun to cry. This statement is in accord with defendant's statement at the crash site to the responding police officer that she "momentarily [had] lost sight [of the Hong vehicle] and when she regained sight she was too close ... and couldn't brake on time and hit vih2 on the rear." In her affidavit at bar, defendant states that it had "appeared" to her

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at that moment that the Hong vehicle came to "a sudden stop." Defendant states that she had applied her brakes but that the front of her vehicle made contact with the rear of the Hong vehicle, whereupon, because the Hong vehicle had been too close to the Zapata vehicle, the front of the Hong vehicle then struck the rear of the Zapata vehicle.^[1]

Based upon the foregoing, defendant argues that...