By notice of motion filed on March 4, 2013 under motion sequence number three, defendants Marie Bang and Patrick Sylvestre Nonos Bang (hereinafter the Bang defendants) have jointly moved pursuant to CPLR 3212 for an order granting summary judgment in their favor on the issue of liability and dismissing the complaint and all cross claims asserted against them.

By notice of cross-motion filed May 2, 2013 under motion sequence number four, plaintiff Maryssel Delgado (hereinafter Delgado) has cross-moved pursuant to CPLR 3212, for an order granting summary judgment in her favor on the issue of liability as against the Bang defendants.

The Bang defendants have opposed Delgado's cross-motion.

By order dated March 8, 2012, the Court granted Delgado's motion for default judgment against defendant Humberto Cordero (hereinafter Cordero).

By decision and order dated May 17, 2013, the Court denied the Bang defendants' motion [*2]for summary judgment under motion sequence three and reserved decision on Delgado's motion under motion sequence number four.

BACKGROUND

On August 31, 2011, Delgado filed a summons and verified complaint with the Kings County Clerks office. By verified answer, dated October 26, 2011, the Bang defendants joined issue. To this date a note of issue has not been filed.

Delgado's action is for damages due to personal injury sustained as a result of a motor vehicle accident. Delgado's complaint and verified bill of particulars allege the following salient facts. On July 4, 2011 at approximately 10:50 p.m., Delgado was a passenger on a motorcycle operated by Cordero which was traveling on the third lane of a three lane highway on the Brooklyn Bridge Roadway in Brooklyn. At that date and time, Cordero collided with the rear of a vehicle negligently stopped on the highway by Marie Bang. The force of the collision propelled Delgado from the motorcycle and caused her to sustain serious physical injury.

MOTION PAPERS

The Bang defendants' motion for summary judgment, consists of a notice of motion, an affirmation of their counsel and six annexed exhibits labeled A through F. Exhibit A is a copy of the instant summons and complaint. Exhibit B is a copy of the Bang defendants' verified answer and cross claims against Cordero. Exhibit C is a copy of the Delgado's verified bill of particulars. Exhibit D is a copy of a police accident report of the subject accident. Exhibit E is a certified copy of the deposition of Marie Bang. Exhibit F is a certified copy of the deposition of Delgado.

Delgado's cross-motion papers consists of a notice of cross-motion, an affirmation of her counsel and two annexed exhibits labeled A and B. Exhibit A is a copy of the aforementioned order dated March 8, 2013 which granted Delgado's motion for a default judgment against Cordero. Exhibit B is a copy of a Web Civil Supreme-case detail, indicating the present case.

The Bang defendants opposed Delgado's cross-motion with an affirmation of their counsel.

LAW AND APPLICATION

It is well establish that summary judgment may be granted only when it is clear that no triable issue of fact exists (Alvarez v Prospect Hospital, 68 NY2d 320 [1986]). The burden is upon the moving party to make a prima facie showing that he or she is entitled to summary judgment as a matter of law by presenting evidence in admissible form demonstrating the absence of any material facts (Giuffrida v Citibank, 100 NY2d 72, 790 N.E.2d 772 [2003]). A failure to make that showing requires the denial of that summary judgment motion, regardless of the adequacy of the opposing papers (Ayotte v Gervasio, 81 NY2d 923 [1993]). If a prima facie showing has been made the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of material issues of fact (Alvarez v Prospect Hospital, 68 NY2d at 324).

Although already decided by decision and order dated May 17, 2013, the Court's reason for denying the Bang defendants' motion for summary judgment is explained herein. The motion and cross motion papers establish that in the late evening of July 4, 2011, Marie Bang was operating a motor vehicle which she stopped in the third lane of a three lane highway on the Brooklyn Bridge Roadway in Brooklyn. At that date and time, Delgado was a passenger on [*3]Cordero's motorcycle when he collided with the rear of Marie Bang's vehicle.

The Court has already granted a default judgment against Cordero for failing to appear or answer the instant complaint. A default in appearing or answering the complaint is deemed to be an admission of all traversable factual allegations contained therein and all reasonable inferences that flow from them (Venturella-Ferretti v Ferretti, 74 AD3d 792 [2nd Dept 2010] citing Rokina Opt. Co. v Camera King, 63 NY2d 728 [1984]). Therefore, according to the complaint, Cordero has admitted to striking Marie Bang's vehicle in the rear while she was stopped on the highway. Cordero's conduct violates VTL § 1129(a) and establishes his prima facie negligence in causing the collision with Marie Bang's vehicle and Delgado's accident.

Marie Bang's deposition testimony establishes that she was experiencing some difficulty with the operation of her motor vehicle. While in the third lane of the aforementioned highway, she turned off her vehicle in order to make a cell phone call for help. She testified that she activated her hazard lights. When a tow truck operator arrived, she declined the offer for towing service, turned her vehicle back on and drove it home.

Marie Bang has asserted that she was free from negligence because she was faced with an unforeseeable emergency when her car began to slow down on its own. The emergency doctrine recognizes that when an actor is faced with a sudden and unexpected circumstance which leaves little or no time for thought, deliberation or consideration, or causes the actor to be reasonably so disturbed that the actor must make a speedy decision without weighing alternative courses of conduct, the actor may not be negligent if the actions taken are reasonable and prudent in the emergency context. A person in an emergency situation cannot reasonably be held to the same accuracy of judgment or conduct as one who has full opportunity to reflect, even though it later appears that the actor made the wrong decision (see, Rivera v NYCTA, 77 NY2d 322, 327 [1991]).

While not specifically stating so, Marie Bang has also asserted that she is free from negligence as her vehicle merely furnished the occasion, rather than proximately caused the accident. It is well established that when approaching another vehicle from behind, a driver is required to maintain a reasonably safe rate of speed, maintain control of his or her vehicle and use reasonable care to avoid colliding with the other vehicle, which necessarily includes a duty to maintain a safe distance between the two vehicles. (see VTL § 1129(a); Appollonia v Bonse, 92 AD3d 1170 [3rd Dept 2012]).

"Generally, a rear-end collision with a stopped vehicle creates a prima facie case of negligence with respect to the operator of the moving vehicle and imposes a duty on the operator of the moving vehicle to rebut the inference of negligence by providing a non-negligent explanation for the collision" (Savarese v Cerrachio, 79 AD3d 725 [2nd Dept 2010] citing Franklin v 2 Guys From Long Pond, Inc., 50 AD3d 846, 847 [2nd Dept 2008]).

However, it is unlawful to stop, stand, or park a vehicle on any bridge or other elevated structure upon a highway or within a highway tunnel unless otherwise indicated by official signs, markings or parking meters (see VTL § 1202 [a][1][g]). In opposition to the Bang defendants' motion for summary judgment, Delgado correctly asserted that Marie Bang's conduct in voluntarily shutting off her vehicle to make a cell phone call and in effect parking her car on the highway, violated VTL § 1202 [a][1][g]. Such a violation constitutes negligence per se and raises a triable issue on Marie Bang's comparative fault in causing the collision. Furthermore, the [*4]slowing of her vehicle and conscious decision to stop the vehicle when it was still operative is not an "emergency" as contemplated by the emergency doctrine.

Although, it has been held that a lead drivers violation of VTL §1202 merely furnishes the condition and not the proximate cause of the accident. It has also been held that it does not raise a triable issue of the rear drivers negligence in causing the collision (see Iqbal v Thai, 83 AD3d 897 [2nd Dept 2011], 920 NYS2d 789, Gregson v Terry, 35 AD3d 358 [2nd Dept 2006]). However, that analysis is only properly applied in situations where the movant for summary judgment is the operator of the rear vehicle. The analysis is not applicable to an innocent passenger. It is well established that the right of an innocent passenger to summary judgment is not barred or limited by the existence of any unresolved questions as to apportionment of fault between the negligent operators of the vehicles involved in the subject accident (Brabham v City of New York, 105 AD3d 881 [2nd Dept 2013]).

In the instant matter Delgado is free of negligence in the causing of the subject accident. Cordero was negligent in the operation of his motorcycle and his negligence proximately caused Delgado's accident. Marie Bang's conduct in voluntarily shutting off her vehicle on the highway to make a cell phone call violated VTL § 1202 [a][1][g]) constituting negligence.

Furthermore, as Delgado has moved against both Bang defendants VTL § 388 is applicable. VTL § 388 provides that "every owner of a vehicle used or operated in this state shall be liable and responsible for death or injuries to person or property resulting from negligence in the use or operation of such vehicle, in the business of such owner or otherwise, by any person using or operating the same with the permission, express or implied, of such owner." As Ms. Bang testified that she had borrowed her brother's car with the express permission to drive it, he is vicariously responsible for her negligence.

Therefore, Delgado's motion for summary judgment in her favor on the issue of liability as against the Bang defendants is granted. The sole unresolved question of fact on the issue of liability is the apportionment of fault between Marie Bang and Humberto Cordero.

The foregoing constitutes the decision and order of this Court.

Enter:

J.S.C.

Enter Forthwith:

J.S.C.