Pesa v. Kolesnikov

• Decision Date: 23 February 2021
• Docket Number: Index Nos. 151861/2019,152055/2019,Action Nos. 1,2,Motion Seq. Nos. 001,002,003
• Citation: Pesa v. Kolesnikov, 2021 NY Slip Op 33701(U), 002, 003, 152055/2019 (N.Y. Sup. Ct. Feb 23, 2021)
• Parties: EMIL PESA Plaintiffs v. VADIM KOLESNIKOV, VICTORIA SHAKHNOVICH Defendants. DANIEL JENTZ and DENISE JENTZ Plaintiffs v. VADIN KOLESNIKOV, VICTOIRA SHAKHNOVICH, EMIL PESA and ANA M. FILOSA, Defendants.
• Court: New York Supreme Court

2021 NY Slip Op 33701(U)

EMIL PESA Plaintiffs v. VADIM KOLESNIKOV, VICTORIA SHAKHNOVICH Defendants.

DANIEL JENTZ and DENISE JENTZ Plaintiffs v. VADIN KOLESNIKOV, VICTOIRA SHAKHNOVICH, EMIL PESA and ANA M. FILOSA, Defendants.

Index Nos. 151861/2019, 152055/2019, Action Nos. 1, 2, Motion Seq. Nos. 001, 002, 003

Supreme Court, Richmond County

February 23, 2021

Unpublished Opinion

RECEIVED NYSCEF: 02/24/2021

Present: Hon. Catherine DiDomenico

DECISION AND ORDER

Catherine M. DiDomenico Judge

Recitation as required by CPLR 2219(a) of the papers considered in the review of Motion Sequence Numbers indicated above

Numbered

Notice of Motion by Defendant Filosa (001), 1

Affirmation Opposition to 001 by Plaintiffs, 2

Reply Affirmation (to Plaintiff Opp) by Defendant Filosa 3

Affirmation in Opposition to 001 by Defs. Kolesnikov & Shakhnovich 4

Reply Affirmation (to Co-Def. Opp) by Defendant Filosa 5

Notice of Motion by Defendant Pesa (002) 6

Notice of Cross Motion by Plaintiffs (003) 7

Affirmation in Opposition to 002 by Defs. Kolesnikov & Shakhnovich 8

Affirmation in Partial Opposition to 002 by Def. Filosa 9

Affirmation in Opposition to 003 by Defs. Kolesnikov & Shakhnovich 10

Notice of Motion by Plaintiff Pesa (Seq. No. 002; Action 1) 11

Affirmation in Opposition by Defs. Kolesnikov & Shakhnovich 12

Upon the foregoing cited papers, the Decision and Order is as follows:

Procedural History, Present Motions

On or about November 6, 2019 the two actions captioned above were consolidated for the purposes of joint discovery and a joint trial. As the actions were not "fully" consolidated, each kept its own character and index number. The four motions currently pending before this Court all seek summary judgment on the issue of liability relating to a three-vehicle chain collision accident which occurred on January 13, 2019. Three of those motions were filed in action number two with the remaining motion having been filed by Emil Pesa in his role as a plaintiff in action number one. The motions filed by Mr. Pesa as a plaintiff, and as a defendant, raise the same arguments of fact and law. Accordingly, the resolution of one motion will necessarily resolve the other under principles of collateral estopple and res judicata. See Broder v. Pallotta &Assoc Dev., Inc., 186 A.D.3d 1189 (2d Dept. 2020); see also Valiotis v. Bekas, 145 A.D.3d 707 (2d Dept. 2016).

The basic facts of the incident are not in dispute. The lead vehicle in the chain, a 2015 Subaru, was operated by Defendant Ana Filosa. The second vehicle in the chain, a Jeep SUV, was operated by Emil Pesa. Plaintiff Daniel Jentz was a passenger in the Pesa vehicle. Plaintiff Denise Jentz was not directly involved in the accident and only has derivative claims through her Husband. The third vehicle in the chain, a Land Rover, was operated by Defendant Shaknovich and owned by Defendant Koleshikov. The Shaknovich and Koleshikov Defendants are the only parties who have not filed a motion for summary judgment, rather, they have filed written opposition to all four pending motions.

In support of their respective motions, the movants have provided an Affidavit from Defendant Filosa and deposition transcripts from Plaintiff Jentz, Mr. Pesa and Defendant Shakhnovich. In addition to sworn testimony, the movants also offer the MV-104 police accident report from the incident. Generally, motor vehicle accident reports do not constitute evidence in admissible form for the purposes of supporting or defeating, a summary judgment motion. See Hegy v. Colter, 262 A.D.2d 606 (2d Dept. 1999). In some circumstances sections of a MV-104 may become admissible if they contain statements against a party's interest. See Vaden v. Rose, 4 A.D.3d 468 (2d Dept. 2004). However, under recent appellate case law, two levels of hearsay scrutiny must be applied before a report can be considered, and an uncertified report cannot be used in support of a motion for summary judgment regardless of whether it contains an admission. See Yassin v. Blackman, 188 A.D.3d 62 (2d Dept. 2020); see also Bailey v. Feligene, 2021 NY Slip Op 30313(U)(Kings Cty. Sup. Ct. 2021). While the accident report at issue here does appear to contain an admission, it does not bear the proper certification^[1] and is therefore inadmissible.

Applicable Law

The proponent of a summary judgment motion has the initial burden of making a prima facie showing of entitlement to judgment as a matter of law by tendering sufficient evidence to eliminate any material issues of fact from the case. See Otty Cab Corp. v. Nazir, 72 N.Y.S.3d 517 (2d Dept. 2017). A movant's burden can be satisfied by the submission of sworn affidavits or deposition testimony in proper evidentiary form. See Charlie Fox, Inc. v. Diallo, 48 N.Y.S.3d 264 (2d Dept. 2016). Once a prima facie showing of entitlement to summary judgment has been established, the burden shifts to the non-moving party or parties to raise a material issue of fact. See Ubillus-Tambini v. Ischukov, 36 N.Y.S.3d 410 (2d Dept. 2016). Under recent appellate case law, comparative negligence is no longer a bar to the granting of summary judgment. See Hai Ying Xaio v. Martinez, 185 A.D.3d 1014 (2d Dept. 2020); see also Simon v. Rent-A-Center, Inc. 180 A.D.3d 1100 (2d Dept. 2020).

Decision

Here the moving parties have established their entitlement to summary judgment as a matter of law. The Affidavit of Ana Filosa states that she was "stopped in traffic" when her vehicle was struck in the rear by the Pesa vehicle. It is well established law that a vehicle that is hit in the rear while stopped or stopping is entitled to summary judgment on the issue of liability. See Hauser v. Adamov 74 A.D.3d 1024 (2d Dept. 2010). Likewise, the deposition testimony of Emil Pesa supports his entitlement to summary judgment both as a Plaintiff and as a Defendant. Mr. Pesa testified that he stopped in traffic because the Filosa vehicle in front of him had stopped. He claims he was stopped for approximately 30 seconds before the accident occurred and that the impact to the rear of his vehicle propelled him into the Filosa vehicle. In chain collision accidents, the operator of the middle vehicle may establish prima facie entitlement to summary judgment as a matter of law by demonstrating that while stopped, their vehicle was struck from behind and propelled into the lead vehicle. See Kuris v. El Sol Cont. &Constr. Corp., 116 A.D.3d 675 (2d Dept. 2014); See Raimondo v. Plunkitt, 102 A.D.3d 851 (2d Dept. 2013); Katz v. Masada II Car &Limo Serv., Inc., 43 A.D.3d 876 (2d Dept. 2007). Finally, Plaintiff Jentz established his entitlement to summary judgment as a matter of law as he was an innocent passenger in the Pesa vehicle. See Lopez v. Suggs, 186 A.D.3d 589 (2d Dept. 2020). The right of an innocent passenger to summary judgment on the issue of liability is not restricted by potential issues of comparative negligence between the other parties. See Morris v. Dorota, 187 A.D.3d 1174 (2d Dept. 2020).

As the Movants have established their entitlement to summary judgment as a matter of law, the burden now shifts to the non-moving parties, in this case Defendants Shakhnovich and Koleshikov, to raise a material question of fact. See Paula v. City of New York, 249 A.D.2d 100 (I^s* Dept. 1998). The third vehicle involved in the present accident was operated by Defendant Victoria Shakhnovich. Ms. Shakhnovich was deposed on November 19, 2020 and a transcript of her testimony has been provided as part of the motion record. Ms. Shakhnovich testified that she was traveling approximately 25 miles per hour about two car lengths behind the Pesa vehicle when it came to an "abrupt, sudden stop." Despite "slamming hard" on her brakes, she testified that she was unable to stop, and came into contact with the rear of the Pesa vehicle with a "medium" impact.

While the non-moving Defendants argue that the accident was caused by the Pesa vehicle stopping short, that conclusory statement, standing alone, is insufficient to rebut the presumption of negligence or to provide a non-negligent explanation for the rear-end collision. See Ross v. JFC Intl., Inc. 185 A.D.3d 855 (2d Dept. 2020); see also Greene v. Raskin, 186 A.D.3d 575 (2d Dept. 2020); Bene v. Dalessio, 135 A.D.3d 679 (2d Dept. 2016). Defendant Shakhnovich had an obligation to maintain a safe distance between her vehicle and the vehicle in front of her to avoid a rear end collision in the event that the lead vehicle was required to stop. See Mirza v. Tribeca Auto. Inc., 189 A.D.3d 448 (1^st Dept. 2020). Stops by a lead vehicle which are foreseeable under prevailing traffic conditions, even if sudden... must be anticipated by a driver who follows. See Perez v. Persad, 183 A.D.3d 771 (2d Dept. 2020). Here, it is undisputed that the Pesa vehicle was required to stop (which it did successfully) because the Filosa vehicle was stopped. It was therefore incumbent upon Defendant Shakhnovich to leave enough room between vehicles to be able to safely stop, which she failed to do. See Cajas-Romero H Ward, 106 A.D.3d 850 (2d Dept. 2013). Accordingly, for the reasons set for the herein, Defendants Kolesnikov and Shakhnovich have failed to meet their burden of raising a triable issue of fact on the issue of liability sufficient to defeat the present motions. See Martinez v. City of New York, 2019 NY Slip Op 06486 (2d Dept. 2019); See also, Vailes v. Molloy Coll., 2019 NY Slip Op 06530 (2d Dept. 2019).

In addition to the above, the Defendants in opposition further argue that the motions for summary judgment are premature because they were made before the deposition of Ana Filosa could be held. Under the circumstances this argument is unpersuasive. "The mere hope or speculation that evidence sufficient...