Turnbull v. Powell
| Decision Date | 17 May 2012 |
| Docket Number | No. 1468/2012.,1468/2012. |
| Citation | 953 N.Y.S.2d 554,2012 N.Y. Slip Op. 50905,35 Misc.3d 1226 |
| Parties | Alecia TURNBULL, Plaintiff, v. Berthenia POWELL, Defendant. |
| Court | New York Supreme Court |
The following papers numbered 1 to 4 were read on this motion by plaintiff for summary judgment on liability pursuant to CPLR § 3212:
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¦Notice of Motion–Affirmation–Exhibits¦1–3¦
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¦Affirmation in Opposition ¦4 ¦
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¦Reply Affirmation ¦7 ¦
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Upon the foregoing papers it is ORDERED that the motion is disposed of as follows:
Plaintiff moves this Court for summary judgment pursuant to CPLR § 3212 on this issue of defendant's liability. This is an action in personal injury stemming from a motor vehicle accident on November 2, 2011 on the eastbound ramp to Interstate 84 coming from Route 9W in the Town of Newburgh, New York. According to the plaintiff, at the time of the accident, she was on the ramp and obeying a yield sign and slowing to yield to oncoming traffic when the defendant's vehicle struck the rear of her vehicle. In addition to her affidavit, plaintiff submits a copy of the police accident report. The police accident report is inadmissible in its current form. Admission into evidence of motor vehicle accident report prepared by non-eyewitness police officer for purpose of establishing cause of subject accident is prejudicial and reversible error in light of fact that sources of information for report are unclear as was source of information contained in report or whether he or she was under business duty to make it, or whether some other hearsay exception would have rendered statement admissible. See, Murray v. Donlan, 77 A.D.2d 337, 433 N.Y.S.2d 184 (2nd Dept.1980). Furthermore, an accident report by a police officer who investigated but did not witness accident was inadmissible to prove main facts where it did not appear that whoever gave officer facts had business duty to do so. See, Toll v. State, 32 A.D.2d 47, 299 N.Y.S.2d 589 (3rd Dept.1969). In this case, there is nothing in the report to indicate that the police officer witnessed the accident and there is no admission by the defendant that she was responsible for the accident. As such, the report is inadmissible and will not be considered.
In opposition, defendant submits an affirmation from her attorney claiming that plaintiff's motion is premature and that there are questions of fact as to comparative negligence which need to be explored during depositions.
CPLR § 3212(b) states in pertinent part that a motion for summary judgment “shall be granted if, upon all of papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party.”
In Andre v. Pomeroy, 35 N.Y.2d 361, 364, 362 N.Y.S.2d 131, 320 N.E.2d 853 (1974), the Court of Appeals held that:
[s]ummary judgment is designed to expedite all civil cases by eliminating from the Trial Calendar claims which can properly be resolved as a matter of law ... when there is no genuine issue to be resolved at trial, the case should be summarily decided, and an unfounded reluctance to employ the remedy will only serve to swell the Trial Calendar and thus deny to other litigants the right to have their claims promptly adjudicated.
Moreover, if summary judgment is granted, plaintiff is entitled to an immediate trial on the issue of damages pursuant to CPLR § 3212(c), after completion of the outstanding discovery.
CPLR § 3212(c) states in pertinent part:
Immediate trial. If it appears that the only triable issues of fact arising on a motion for summary judgment relate to the amount or extent of damages ... the court may ... order an immediate trial of such issues of fact raised by the motion, before a referee, before the court, or before the court and jury, whichever may be proper.
In Ward v. Clark, 232 N.Y. 195, 198, 133 N.E. 443, the Court of Appeals stated that “the supreme rule of the road is the rule of mutual forbearance.” In other words, “[A] driver is negligent where an accident occurs because [he or she] has failed to see that which through the proper use of [his or her] senses [he or she] should have seen.” Ferrara v. Castro, 283 A.D.2d 392, 392, 724 N.Y.S.2d 81 (2nd Dept.2001) (quoting Bolta v. Lohan, 242 A.D.2d 356, 356, 661 N.Y.S.2d 286 (2nd Dept.1997)).
NY Vehicle & Traffic Law § 1129(a) states “The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon and the condition of the highway.”
If a stopped car is struck in the rear, absent some excuse, it is negligence as a matter of law. Leonard v. City of New York, 273 A.D.2d 205, 205–206, 708 N.Y.S.2d 467 (2nd Dept.2000); Sheeler v. Blade Contracting, Inc., 262 A.D.2d 632, 632–633, 692 N.Y.S.2d 669 (2nd Dept.1999); Rich v. O'Connor 212 A.D.2d 767, 767, 623 N.Y.S.2d 265 (2nd Dept.1995); Mead v. Marino 205 A.D.2d 669, 669, 613 N.Y.S.2d 650 (2nd Dept.1994); Edney v. MABSTOA 178 A.D.2d 398, 399, 577 N.Y.S.2d 102 (2nd Dept.1991); DeAngelis v. Kirschner 171 A.D.2d 593, 594, 567 N.Y.S.2d 457 (1st Dept., 1991); Crociata v. Vasquez 168 A.D.2d 410, 410, 562 N.Y.S.2d 536 (2nd Dept.1990); Cohen v. Terranella 112 A.D.2d 264, 264, 491 N.Y.S.2d 711 (2nd Dept.1985); Carter v. Castle Elec. Contr. 26 A.D.2d 83, 84–85, 271 N.Y.S.2d 51 (2nd Dept., 1966).
The occurrence of a rear end collision is sufficient to create a prima facie case of liability and even if defendant slid into plaintiff's vehicle due to wet roadway, such a showing would be insufficient to rebut the inference of negligence and raise a triable issue of fact. Crociata, 168 A.D.2d at 410, 562 N.Y.S.2d 536;Benyarko v. Avis, 162 A.D.2d 572, 573, 556 N.Y.S.2d 761 (2nd Dept.,1990). An explanation that the plaintiff's vehicle came to an abrupt or sudden stop is insufficient to raise a question of fact and rebut the presumption of negligence. See, Lundy v. Llatin, 51 A.D.3d 877, 877–878, 858 N.Y.S.2d 341 (2nd Dept.2008); Francisco v. Schoepfer, 30 A.D.3d 275, 276, 817 N.Y.S.2d 52 (2nd Dept.2006); Rainford v. Han; 18 AD3d 638, 639 (2nd Dept.2005); Belitsis v. Airborne Express Freight Corp., 306 A.D.2d 507, 508, 761 N.Y.S.2d 329 (2nd Dept.2003); Dickie v. Pei Xiang Shi, 304 A.D.2d 786, 787, 759 N.Y.S.2d 141 (2nd Dept.2003); Levine v. Taylor, 268 A.D.2d 566, 567, ...
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