Massa v. Simpson

• Decision Date: 27 January 2020
• Docket Number: Index No. 600728/2019E,Motion Sequence No. 002; MG
• Citation: 2020 NY Slip Op 35071 (U)
• Parties: Tina L. Massa and Nicholas Massa, Plaintiffs, v. Kenneth B. Simpson and Kenneth B. Simpson, Jr., Defendants.
• Court: New York Supreme Court

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2020 NY Slip Op 35071(U)

Tina L. Massa and Nicholas Massa, Plaintiffs,
v.
Kenneth B. Simpson and Kenneth B. Simpson, Jr., Defendants.

Index No. 600728/2019E, Motion Sequence No. 002; MG

Supreme Court, Suffolk County

January 27, 2020

Unpublished Opinion

Motion Date: 10/30/2019

Submitted: 1/15/2019

Attorney for Plaintiffs:

Suris & Associates, P.C.

Attorney for Plaintiff Nicholas C. Massa (on Counterclaim)

Law Offices of Karen L. Lawrence

Attorney for Plaintiffs:

Suris & Associates, P.C.

Attorney for Defendants

Kenneth B. Simpson

and Kenneth B. Simpson, Jr.

Richard T. Lau & Associates

William B. Rebolini, Judge

Upon the E-file document list numbered 17 to 29 and 32 to 33 read on this application by plaintiffs for an order granting them summary judgment against defendants on the issue of liability pursuant to CPLR 3212; it is

ORDERED that plaintiffs' motion for summary judgment on the issue of liability is granted.

In this action, plaintiffs seek damages for personal injuries alleged to have occurred as a result of a motor vehicle accident that occurred on January 27, 2016. The action was commenced by the filing of a summons and complaint on January 10, 2019. Issue was joined on March 18, 2019. Another action under index number 617086/2018 was commenced by plaintiff Rosemary T. Donnelly (the "first action") against defendants Kenneth B. Simpson and Kenneth B. Simpson, Jr.

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(collectively referred to herein as the "Simpson defendants"), Nicholas Massa and Neil Massa (the "Massa defendants"). This first action involves the same motor vehicle accident. In the first action, plaintiff Donnelly and defendants Nicholas Massa and Neil Massa were granted summary judgment on the issue of liability against the Simpson defendants by order of this Court dated May 1, 2019. In that decision, the court found that the Massa defendants rebutted the inference of negligence by providing a non-negligent explanation for the accident. As noted by the court, Nicholas Massa presented that "his vehicle completely stopped behind [the Donnelly vehicle].... and was propelled into the [Donnelly vehicle] when it was struck in the rear by [the Simpson vehicle]." The court further noted that the Simpson defendants failed to raise an issue of fact. Plaintiffs herein, Tina Massa and Nicholas Massa (the "Massa plaintiffs") now move for summary judgment on the issue of liability. In support of their motion, plaintiffs submit, inter alia, a copy of the pleadings in this action and the first action and the order in the first action. Defendants oppose the motion.

It is well settled that a party moving for summary judgment 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 Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923 [1986]; Friends of Animals v. Associated Fur Mfrs., 46 N.Y.2d 1065, 1067, 416 N.Y.S.2d 790 [1979]). The failure of the moving party to make a prima facie showing requires the denial of the motion regardless of the sufficiency of the opposing papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 487 N.Y.S.2d 316 [1985]). However, once the movant has made the requisite showing, the burden then shifts to the party opposing the motion to produce evidentiary proof in admissible form sufficient to require a trial on any material issue of fact (Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595 [1980]. To defeat a motion for summary judgment, a party opposing such motion must lay bare his proof in evidentiary form; conclusory allegations are insufficient to raise a triable issue of fact (see Friends of Animals, Inc. v. Associated Fur Mfrs., 46 N.Y.2d 1065, 416 N.Y.S.2d 790; Burns v. City of Poughkeepsie, 293 A.D.2d 435, 739 N.Y.S.2d 458 [2d Dept 2002]). In deciding the motion, the Court must view all evidence in the light most favorable to the nonmoving party (Nomura, supra; see also Ortiz v. Varsity Holdings, LLC, 18 N.Y.3d 335, 339, 937 N.Y.S.2d 157 [2011]). A motion for summary judgment should be denied where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility (see Chimbo v. Bolivar, 142 A.D.3d 944, 37 N.Y.S.3d 339 [2d Dept 2016]; Benetatos v. Comerford, 78 A.D.3d 730, 911 N.Y.S.2d 155 [2d Dept. 2010]).

When a driver approaches another vehicle from the rear, he is bound to maintain a reasonably safe rate of speed and to maintain control of his vehicle and use reasonable care to avoid colliding with the other vehicle (Vehicle and Traffic Law § 1129 [a]; Gallo v. Jairath, 122 A.D.3d 795, 996 N.Y.S.2d 682 [2d Dept 2014]; Cajas-Romero v. Ward, 106 A.D.3d 850, 965 N.Y.S.2d 559 [2d Dept 2013]; Nsiah-Ababio v. Hunter, 78 A.D.3d 672, 913 N.Y.S.2d 659 [2d Dept 2010]). A driver is negligent in failing to see that which under the facts and circumstances he should have seen by the proper use of his senses (see Barbieri v. Vokoun, 72 A.D.3d 853, 900 N.Y.S.2d 315 [2d Dept.2010]; Domanova v. State of New York, 41 A.D.3d 633, 838 N.Y.S.2d 644 [2d Dept. 2007]; Lester v Jolicofur et al., 120 A.D.2d 574; 502 N.Y.S.2d 61 [2d Dept 1986]). The occurrence of a rear-end collision with a stopped or stopping vehicles creates a prima facie case of negligence on the part of the operator of the rear vehicle and imposes a duty on that operator to come forward with a non-

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negligent explanation for the collision (Montalvo v. Cedeno, 170 A.D.3d 1166, 96 N.Y.S.3d 638 [2d Dept. 2019]; McLaughlin v. Lunn, 137 A.D.3d 757, 26 N.Y.S.3d 338 [2d Dept 2016]; Cheow v. Cheng Lin Jin, 121 A.D.3d 1058, 995 N.Y.S.2d 186 [2d Dept 2014]; Perez v Roberts, 91 A.D.3d 620, 936 N.Y.S.2d 259 [2d Dept 2012]; Volpe v. Limoncelli, 74 A.D.3d 795, 902 N.Y.S.2d 152 [2d Dept 2010]; Ramirez v. Konstanzer, 61 A.D.3d 837, 878 N.Y.S.2d 381 [2d Dept 2009]). This burden is placed on the driver of the rear vehicle because he is in the best position to explain whether the collision was due to a mechanical failure, a sudden stop of the vehicle ahead, unavoidable skidding on wet pavement, or some other reasonable cause (Sayyed v. Murray, 109 A.D.3d 464, 970...