Rende v. Lebron

• Court: New York Supreme Court
• Writing for the Court: HON. DENISE L. SHER, Justice
• Citation: Rende v. Lebron, 2010 NY Slip Op 33527, Index No.: 5963/09, Motion Seq. No.: 01 (N.Y. Sup. Ct. Dec 17, 2010)
• Decision Date: 17 December 2010
• Docket Number: Motion Seq. No.: 01,Index No.: 5963/09
• Parties: THOMAS J. RENDE, Plaintiff, v. RAMON E. LEBRON, CITYSIDE ARCHIVES, LTD. and ELRAC, INC. d/b/a ENTERPRISE RENT-A-CAR, Defendants.

2010 NY Slip Op 33527

THOMAS J. RENDE, Plaintiff,

v. RAMON E. LEBRON, CITYSIDE ARCHIVES, LTD.and ELRAC, INC. d/b/a ENTERPRISE RENT-A-CAR, Defendants.

Index No.: 5963/09

Motion Seq. No.: 01

SUPREME COURT OF THE STATE OF NEW YORK

NASSAU COUNTY

TRIAL/IAS PART 32.

Motion Date: October 24, 2010

Dated: December 15, 2010

Filed: December 17, 2010

SHORT FORM ORDER

HON. DENISE L. SHER, Justice

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                | The following napers have been read on this motion:  |                 |
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                |                                                      | Paoers Numbered |
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                | Notice of Motion. Affirmation and Exhibits           |                |
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                | Affirmation in OnDOsition                            |                |
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                | Renlv Affirmation                                    |                |
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Upon the foregoing papers, it is ordered that the motion is decided as follows:

Plaintiff moves, pursuant to CPLR § 3212, for an Order granting him summary judgment on the issue of liability. Defendants oppose the motion.

This action arises from a motor vehicle accident which occurred on November 6, 2008, at approximately 11:30 a.m., at or near the intersection of 86th Street and 7th Avenue, Brooklyn, Kings County, New York. The accident involved a 2008 Honda owned and operated by plaintiff and a 2004 Ford Van owned by defendant Elrac Inc. and operated by defendant Ramon E. Lebron ("Lebron") who, at the time of said accident, was driving the automobile in his capacity as an employee of defendant Cityside Archives, Ltd. Plaintiff commenced the action bythe filing and service of a Summons and Verified Complaint on or about March 23, 2009. Issue was joined on or about May 4, 2009.

Briefly, it is plaintiff's contention that the accident occurred when defendant Lebron, without warning, crashed into the rear of plaintiff's vehicle when his car was stopped at the red light located at the intersection of 86th Street and 7th Avenue, Brooklyn, Kings County, New York. Plaintiff states that his car was at a full stop for approximately five to ten seconds when defendants' car slammed into the rear of his vehicle. As a result of said accident, plaintiff allegedly sustained multiple injuries which include a shoulder injury that has required two operations. Plaintiff submits that it was raining at the time of said accident and that defendant Lebron testified during his Examination Before Trial that the accident occurred when his front left bumper struck the right rear bumper of plaintiff's vehicle and that his vehicle slid into plaintiff's vehicle. Plaintiff also concedes that defendant Lebron additionally testified that plaintiff stopped short, but argues that "those buzz words cannot permit him to escape liability especially when they were not present either in his statement to the police officer or his signed accident report presented to his employer." Plaintiff argues that the Police Accident Report, prepared by the New York City Police Department with respect to the accident in the present matter, clearly shows that defendants' vehicle struck plaintiff's vehicle in the rear. According to said Police Accident Report, defendant Lebron stated to the responding officer at the scene that he tried to stop while traveling eastbound on 86th Street at 7th Avenue directly behind plaintiff's vehicle when he slipped on pavement causing the collision. Plaintiff claims that defendants cannot come up with a non-negligent explanation for striking his vehicle in the rear.

In opposition, defendants argue that "[p]laintiff through his attorney argues that he isentitled to summary judgment as there are no triable issues of fact surrounding the happening of the within motor vehicle accident. However, the papers are devoid of any evidence in admissible form to support that contention." Defendants claim that defendant Lebron was stopped at the red light behind plaintiff's vehicle. When the light turned green traffic proceeded, when plaintiff opted to suddenly and abruptly stop his vehicle to make a left turn at the intersection causing defendant Lebron to collide with his vehicle striking plaintiff's car in the rear. Defendants submit that plaintiff's alleged "sudden, abrupt, short-stop precipitated said accident." Defendants further argue that plaintiff cannot rely on the Police Accident Report as evidence that he was not at fault for this accident as "[s]elf serving affidavits, statement, and police reports are hearsay and are insufficient as a matter of law and cannot be relied upon as evidence."

It is well settled that the proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law by providing sufficient evidence to demonstrate the absence of material issues of fact. See Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 165 N.Y.S.2d 498 (1957); Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 508 N.Y.S.2d 923 (1986); Zuckerman v. City of New York, 49N.Y.2d 557, 427 N.Y.S.2d 595 (1980); Bhatti v. Roche, 140 A.D.2d 660, 528 N.Y.S.2d 1020 (2d Dept. 1988). To obtain summary judgment, the moving party must establish its claim or defense by tendering sufficient evidentiary proof, in admissible form, sufficient to warrant the court, as a matter of law, to direct judgment in the movant's favor. See Friends of Animals, Inc. v. Associated Fur Mfrs., Inc., 46 N.Y.2d 1065, 416 N.Y.S.2d 790 (1979). Such evidence may include deposition transcripts, as well as other proof annexed to an attorney's affirmation. See CPLR § 3212 (b); Olan v. Farrell Lines Inc., 64 N.Y.2d 1092, 489 N.Y.S.2d 884 (1985).

If a sufficient prima facie showing is demonstrated, the burden then shifts to the non-moving party to come forward with competent evidence to demonstrate the existence of a material issue of fact, the existence of which necessarily precludes the granting of summary judgment and necessitates a trial. See Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595 (1980), supra. When considering a motion for summary judgment, the function of the court is not to resolve issues but rather to determine if any such material issues of fact exist. See Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 165 N.Y.S.2d 498 (1957), supra. Mere conclusions or unsubstantiated allegations are insufficient to raise a triable issue. See Gilbert Frank Corp. v. Federal Ins. Co., 70 N.Y.2d 966, 525 N.Y.S.2d 793 (1988).

Further, to grant summary judgment, it must clearly appear that no material triable issue of fact is presented. The burden on the court in deciding this type of motion is not to resolve issues of fact or determine matters of credibility, but merely to determine whether such issues exist. See Barr v. Albany County, 50 N.Y.2d 247, 428 N.Y.S.2d 665 (1980); Daliendo v. Johnson, 147 A.D.2d 312, 543 N.Y.S.2d 987 (2d Dept. 1989). It is the existence of an issue, not its relative strength that is the critical and controlling consideration. See Barrett v. Jacobs, 255 N.Y. 520 (1931); Cross v. Cross, 112 A.D.2d 62, 491 N.Y.S.2d 353 (1st Dept. 1985).

When the driver of an automobile approaches another automobile from the rear, he or she is bound to maintain a reasonably safe rate of speed and control over his or her vehicle and to exercise reasonable care to avoid colliding with the other vehicle pursuant to New York State Vehicle and Traffic Law ("VTL") § 1129(a). See Krakowska v. Niksa, 298 A.D.2d 561, 749 N.Y.S.2d 55 (2d Dept. 2002); Bucceri v. Frazer, 297 A.D.2d 304, 746 N.Y.S.2d 185 (2d Dept. 2002).

A rear end collision with a stopped vehicle establishes a prima facie case of negligence on the part of the operator of the offending vehicle. See Tutrani v. County of Suffolk, 10 N.Y.3d 906, 861 N.Y.S.2d 610 (2008). Such a collision imposes a duty of explanation on the operator. See Hughes v. Cai, 55 A.D.3d 675, 866 N.Y.S.2d 253 (2d Dept. 2008); Gregson v. Terry, 35 A.D.3d 358, 827 N.Y.S.2d 181 (2d Dept. 2006); Belitsis v. Airborne Express Freight Corp., 306 A.D.2d 507, 761 N.Y.S.2d 329 (2d Dept. 2003).

As noted, a rear-end collision with a stopped or stopping vehicle creates a prima facie case of liability with respect to the operator of the rearmost vehicle, thereby requiring the operator to rebut the inference of negligence by providing a non-negligent explanation for the collision. See Francisco v. Schoepfer, 30 A.D.3d 275, 817 N.Y.S.2d 52 (1st Dept. 2006); McGregor v. Manzo, 295 A.D.2d 487, 744 N.Y.S.2d 467 (2d Dept. 2002).

Vehicle stops which are foreseeable under the prevailing traffic conditions, even if sudden and frequent, must be anticipated by the driver who follows, since the following driver is under a duty to maintain a safe distance between his or her car and the car ahead. See Shamah v. Richmond County Ambulance Service, Inc., 279 A.D.2d 564, 719 N.Y.S.2d 287 (2d Dept. 2001).

Drivers must maintain safe distances between their cars and the cars in front of them and this rule imposes on them a duty to be aware of traffic conditions including stopped vehicles. See VTL § 1129(a); Johnson v. Phillips, 261 A.D.2d 269, 690 N.Y.S.2d 545 (1st Dept. 1999).

Drivers have a duty to see what should be seen and to exercise reasonable care under the circumstances to avoid an accident. See Filippazzo v. Santiago, 277 A.D.2d 419, 716 N.Y.S.2d 710 (2d Dept. 2000).

In the context of a rear end collision, a claim that the driver of the lead vehicle made asudden stop, stranding alone, is insufficient to rebut the presumption of negligence. See Campbell v. City of Yonkers, 37 A.D.3d 750, 833 N.Y.S.2d 101 (2d Dept. 2007); ...