The following papers numbered 1 to 21 were read on this motion by defendant, MICHELLE ORLANDELLA, for an order pursuant to CPLR 3212(b), granting summary judgment and dismissing the plaintiff's complaint against said defendant on the ground that Ms. Orlandella bears no liability for causing injuries to the plaintiff:

Papers

Numbered

Defendant Orlandella's Notice of Motion..................1 - 7

Plaintiff's Affirmation in Opposition....................8 - 13

Defendant Armistead's Affirmation in Opposition.........14 - 17

Orlandella's Reply Affirmation..........................18 - 21

In this action for negligence, plaintiff, Mr. Jean Precil, seeks to recover damages for personal injuries he sustained as a result of a motor vehicle accident that occurred on January 14, 2007. The multi-car, chain reaction accident took place on the southbound lanes of the Cross Island Parkway near the exit for Linden Boulevard, Queens County, New York. Plaintiff commenced the action by filing a summons and complaint on June 29, 2009. [*2]Issue was joined by service of an answer by defendant Orlandella dated October 7, 2010. Plaintiff served a note of issue and certificate of readiness on August 4, 2011. On March 11, 2012, the parties entered into a stipulation whereby the time for the defendant to move for summary judgment was extended until June 15, 2012.

Defendant, Michelle Orlandella, now moves by notice of motion served on June 15, 2012, for an order pursuant to CPLR 3212(b), granting summary judgment and dismissing the plaintiff's complaint against her on the ground that the evidence shows that at the time the Orlandella vehicle struck the plaintiff's vehicle in the rear, the plaintiff had left his vehicle and therefore Orlandella's actions could not be the proximate cause of the plaintiff's injuries. Secondly, defendant alleges that she is entitled to summary judgment based upon the fact that she was faced with an emergency when she hit plaintiff's vehicle in the rear and that her actions, under the circumstances were reasonable and prudent in the emergency context.

In support of the for summary judgment, defendant Orlandella submits an affidavit from counsel, Jeffrey P. Yong, Esq; a copy of the pleadings; a copy of the plaintiff's verified bill of particulars; copies of the transcripts of the deposition testimony of plaintiff Jean Precil and defendants Bryan E. Armistead, Frederic Accarino and Michelle Orlandella

The deposition testimony of the parties in pertinent part, is as follows:

Plaintiff, Jean Precil, testified at an examination before trial in a related civil court case on August 18, 2009. At that time he stated that he was involved in a motor vehicle accident on the Cross Island Parkway on January 14, 2007 at approximately 3:00 a.m. He stated that he had left his home in Hempstead and was proceeding to Kennedy Airport in a Toyota Sienna mini-van to drop off a friend. His friend Sam was seated in the front passenger seat at the time off the accident. He testified that as he was proceeding southbound, in the middle lane, he observed police lights and vehicles stopped in the middle lanes due to an accident. He testified that he stopped his vehicle as he approached the accident. He stated that after 25 seconds his vehicle was hit in the rear by a small Mazda causing his vehicle to be propelled into the Jeep in front of his. He saw the Mazda in his rearview mirror prior to the impact. He states that thereafter the Mazda moved away and he and his passenger got out of his vehicle to speak to the police. After exiting his vehicle he observed a second impact to his vehicle by a Jeep pushing his [*3]vehicle into the other Jeep, in front of his, for a second time. He stated that as soon as the Mazda moved away his vehicle was struck by the other Jeep. He testified that he was not in his vehicle at the time it was struck by the Jeep the second time. Plaintiff testified that it was raining heavily at the time of the accident.

Mr. Bryan Armistead was deposed on August 18, 2009 also in relation to the civil court case. He testified that on the date of the accident he was operating a Chrysler Sebring owned by his mother Clarice Armistead. He states that he was driving south on the Cross Island Parkway in an area where there were three lanes of traffic in each direction. He stated that he was proceeding in the middle lane when his vehicle struck a Buick that was in front of him. He stated that the Buick was coming to a stop in the road because there was an accident in front of it. He states that he observed the vehicles brake lights go on and then he hit the vehicle. He testified that the vehicle was one car length in front of his when he first saw it slow down. He states that he exited his vehicle and went to speak to the driver of the vehicle that he hit. After exiting his vehicle he observed that there was an accident in front of the plaintiff's vehicle. He observed a black Jeep in the middle lane in front of the Buick. He also stated that he observed a second accident when an Expedition stopped when it saw the accident and was hit in the rear by a mini van. He told the police at the scene that the person in the Buick in front of him hit his brakes, that he then hit his brakes and hit the Buick in the rear. He states that he then saw another vehicle, a sedan, hit the min-van but that the Buick in front of his was not struck by any other vehicles other than his.

Michelle Orlandella, testified at an examination before trial which was held on August 18, 2009. She stated that on the date of the accident she was driving a four door Mazda to West Hempstead southbound in the middle lane of the Cross Island Parkway towards the Southern State Parkway. She stated that it was raining at the time. As she proceeded she saw a green mini-van stopped in the middle lane on the highway. She states that she saw the mini-van ten seconds before she struck it in the rear. It did not have its lights on. She does not know why the min-van was stopped. After the accident she pulled her car over and noticed that there were about eight other vehicles in front of her pulled over on the side of the road. She states that as she was re-entering her vehicle she also observed another vehicle strike the mini-van. She told the police that she was driving on the parkway when a car appeared out of nowhere with no headlights, no hazards on. She stated that she struck that vehicle and immediately got out to make sure no one was injured. [*4]When she got out she observed that no one was in that car and as she went to go back into her car the mini-van was struck again.

Frederic Accarino, testified at a deposition on March 17, 2009, that on the date of the accident he was operating a 1995 Buick Regal traveling southbound on the Cross Island Parkway on his way to work at JFK Airport. He states that as he was proceeding he came upon an accident with one vehicle turned sideways in the middle lane and he stopped his vehicle gradually. After two seconds he heard screeching brakes behind him and felt an impact to the rear of his vehicle. He then heard approximately four or five other accidents behind his vehicle. He stated that the vehicle that struck his vehicle had a south carolina license plate.

Counsel for Ms. Orlandella contends that the evidence submitted in support of her motion for summary judgment demonstrates that the plaintiff's mini-van was abandoned at the time Orlandella's vehicle struck it in the rear. Counsel bases that conclusion on Orlandella's testimony that when she approached the mini-van to see if anyone was injured it was vacant. Counsel claims that because Orlandella testified that the car was vacant when she approached it, that the complaint should be dismissed against Orlandella as Orlandella could not be liable for any of the injuries claimed by plaintiff, Jean Precil. In addition, counsel claims that Orlandella was faced with an emergency situation as there was a stopped vehicle in the middle lane of the highway with no emergency flashers on. Counsel claims that under the circumstances it was nearly impossible for Orlandella to avoid the collision with plaintiff's abandoned car. Counsel asserts that since plaintiff left his vehicle abandoned in the center lane of the Cross Island Parkway without emergency flashers or lights on, it is clear that no liability for the occurrence of the second collision involving the plaintiff's vehicle and Orlandella can be attributed to any negligence on the part of Orlandella.

In opposition, plaintiff's counsel, Mark J. Linder, Esq., states that the motion for summary judgment is untimely as it was not filed until June 19, 2012 which was 4 days past the date of June 15, 2012, the date the parties stipulated for motions for summary judgment.

With respect to the merits of the motion, counsel asserts that summary judgment should be denied as there are questions of fact as to whether the plaintiff was in fact in his vehicle when [*5]it was struck by Orlandella's vehicle, whether there was in fact an emergency situation, and whether Ms. Orlandella was at fault for failing to use reasonable care to avoid striking the plaintiff's vehicle in the rear. Specifically, counsel argues that in his deposition, the plaintiff, Mr. Precil testified that his car was struck twice. Once while he was seated in the car he observed a Mazda in his rear view mirror which struck his vehicle in the rear. He then exited his vehicle and while he was standing on the side he observed his vehicle being struck a second time by a Jeep. Counsel states that Ms. Orlandella testified that she was operating a Mazda and stated that her vehicle was the first vehicle to strike the plaintiff's minivan. Ms. Orlandella also observed plaintiff's vehicle being struck a second time by another vehicle. Therefore, counsel argues there is a question of fact as to whether Ms. Orlandella's Mazda struck the plaintiff's vehicle first prior to plaintiff exiting his vehicle, whether plaintiff was seated in his vehicle when it was struck by Ms. Orlandella's Mazda or whether the plaintiff's vehicle was vacant when it was struck by Ms. Orlandella's Mazda, In addition counsel argues that there is a question of fact as to whether Ms. Orlandella was faced with an emergency situation.

This court finds that the defendant's motion for summary judgment was timely. "A motion on notice is made when a notice of the motion or an order to show cause is served" (CPLR 2211; see Cruz v New York City Hous. Auth., 62 AD3d 643 [2d Dept.2009]; Kitkas v Windsor Place Corp., 49 AD3d 607 [2d Dept. 2008]; Reznikova v Levy, 48 AD3d 777 [2d Dept. 2008]; Rivera v Glen Oaks Vil. Owners, Inc., 29 AD3d 560 [2d Dept. 2006]). Here, the parties stipulated that motion for summary judgment could be made no later than June 15, 2012. Although the filing date of the motion was 5 days beyond the June 15th date, the notice of motion was properly served on the plaintiff pursuant to CPLR 2103 (b) on June 15, 2012 (see Russo v Eveco Dev. Corp., 256 AD2d 566 [2d Dept. 1998]).

The proponent of a summary judgment motion must tender evidentiary proof in admissible form eliminating any material issues of fact from the case. If the proponent succeeds, the burden shifts to the party opposing the motion, who then must show the existence of material issues of fact by producing evidentiary proof in admissible form, in support of his position (see Zuckerman v City of New York, 49 NY2d 557[1980]).

It is well established law that a rear-end collision with a stopped or stopping vehicle creates a prima facie case of negligence on the part of the driver of the rearmost vehicle, requiring the operator of that vehicle to proffer an adequate, [*6]non-negligent explanation for the accident (see Klopchin v Masri, 45 AD3d 737 [2d Dept. 2007]; Hakakian v McCabe, 38 AD3d 493 [2d Dept. 2007]; Reed v New York City Transit Authority, 299 AD2 330 [2d Dept. 2002]; Velazquez v Denton Limo, Inc., 7 AD3d787 [2d Dept. 2004]. Here Ms. Orlandella argues that as the plaintiff's vehicle was stopped in the middle lane of the highway she is entitled to summary judgment under the "emergency doctrine." Under this doctrine "those faced with a sudden and unexpected circumstance, not of their own making, that leaves them with little or no time for reflection or reasonably causes them to be so disturbed that they are compelled to make a quick decision without weighing alternative courses of conduct, may not be negligent if their actions are reasonable and prudent in the context of the emergency" (Lowhar-Lewis v Metropolitan Transp. Auth., 97 AD3d 728[2d Dept. 2012] citing Bello v Transit Auth. of NY City, 12 AD3d 58 [2d Dept. 2004]). Here this Court finds given the speed of the driver and the road conditions that there is a question of fact as to whether defendant was faced with an emergency situation and whether her actions were reasonable and prudent under the circumstances (see Schmidt v Meehan, 97 AD3d 940 [3rd Dept. 2012]; Schlanger v Doe, 53 AD3d 827 [3rd Dept. 2008]; Morgan v. Ski Roundtop Inc., 290 AD2d 618 [3rd Dept. 2002]).

"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" (Martinez v Martinez, 93 AD3d 767 [2d Dept. 2012]; see Denezzo v Joseph, 95 AD3d 1060 [2d Dept. 2012]. Here, this court finds that Ms. Orlandella has not established her freedom from negligence or provided a non-negligent explanation for striking plaintiff's vehicle in the rear. In this regard she testified that prior to striking the plaintiff's vehicle she saw that it was stopped in the roadway and failed to demonstrate as a matter of law that she did not have an adequate time and distance to avoid the collision with plaintiff's vehicle or exercised reasonable care to avoid the collision.

Ms. Orlandella further argues that although her Mazda struck the plaintiff's vehicle in the rear, the plaintiff was outside the vehicle at the time and therefore her actions cannot be the proximate cause of the plaintiff's injuries. However, the plaintiff's testimony contradicts that theory in that the plaintiff testified that he was in his vehicle at the time it was struck by the Mazda and moreover, he testified that when he exited his vehicle it was struck a second time by a Jeep operated by a co-defendant. [*7]

Accordingly, this court finds that defendant failed to satisfy her prima facie burden of establishing entitlement to summary judgment by demonstrating as a matter of law she was faced with an emergency situation or by demonstrating as a matter of law that the plaintiff's vehicle was abandoned at the time she struck the vehicle in the rear. Further, defendant has failed to demonstrate as a matter of law that her failure to avoid colliding with the plaintiff' s vehicle that was stopped in the roadway was not a contributing cause of the plaintiff's injuries.

Accordingly, for the reasons set forth above, it is hereby

ORDERED, that the motion by defendant, Michelle Orlandella, for summary judgment dismissing the plaintiff's complaint and any and all cross-claims against her is denied.

Dated: October 18, 2012

Long Island City, NY

_______________________

ROBERT J. MCDONALDJ.S.C.