The following papers numbered 1 to 25 were read on the respective motions by defendant, NIRADA SINGH, and defendants WHITMORE EQUIPMENT LEASING CO., INC. and JOSEPH ALEXIS and for an order pursuant to CPLR 3212(b) granting summary judgment dismissing the plaintiff's complaint and all cross-claims against them:

Papers

Numbered

SINGH Notice of Motion-Affidavits-Exhibits.................1 - 8

WHITMORE/ALEXIS Notice of Motion-Affidavits-Exhibits.......9 - 12

RUAN/FISHER Affirmations in Opposition(2).................13 - 18

SINGH Reply Affirmation...................................19 - 22 WHITMORE/ALEXIS Reply Affirmation.........................23 - 25

In this action for negligence, plaintiff Amanda Kewal, seeks to recover damages for personal injuries she allegedly sustained as a result of a multi-vehicle accident that occurred on June 1, 2011. The three-car, chain reaction accident took place at approximately 9:00 a.m. at the intersection of Atlantic Avenue and the service road of Woodhaven Boulevard in Queens County, New York. Defendant Singh was operating a 2001 Mercedes Benz and was stopped at a red traffic signal in the westbound lanes of [*2]Atlantic Avenue waiting to make a left turn onto southbound Woodhaven Boulevard service road. Plaintiff, Amanda Kewal was a passenger in the Singh vehicle. The GMC van owned by Whitmore Equipment Leasing Co., Inc. and operated by Joseph Alexis was stopped behind the Singh vehicle. The truck owned by Ruan Transportation Management Systems and operated by Eddie Fisher was making a left turn from the eastbound lanes of Atlantic Avenue to the northbound service road of Woodhaven Boulevard when it struck the Alexis vehicle. As a result of the impact, the Alexis vehicle was propelled into the Singh vehicle. Both Amanda Kewal and Nirada Singh allegedly sustained injuries as a result of the accident.

Plaintiff Amanda Kewal commenced her action against all three drivers and the owners of their vehicles by filing a summons and complaint on May 20, 2013. A second action was commenced under Index No. 5562/2013 by Nirada Singh naming operators Joseph Alexis and Eddie Fisher and the owners of their vehicles as defendants. The two actions have not, as yet, been consolidated for trial.

Defendant, Nirada Singh, the driver of the lead vehicle, and defendants Whitmore and Alexis move, prior to depositions, for summary judgment on the issue of liability on the ground that each of their vehicles was stopped while waiting at a red traffic signal when defendant Eddie Fisher, in the third vehicle, negligently initiated the chain reaction accident by striking the Alexis vehicle in the side, which resulted in Alexis's vehicle being propelled into the lead vehicle operated by Nirada Singh.

In support of her motion for summary judgment, defendant Singh submits an affidavit from counsel, Joseph G. Gallo, Esq; a copy of the pleadings; a copy of the police accident report; and a copy of an affidavit of facts from Nirada Singh dated July 22, 2013.

In her affidavit, Ms. Singh, states that on June 1, 2011, at approximately 9:00 a.m., her vehicle was stopped for at least one minute waiting at a red traffic signal in the left westbound turn lane of Atlantic Avenue. She states that her vehicle was the first car stopped at the light. she intended to turn left and head southbound on the Woodhaven Boulevard Service Road. While waiting she heard a loud bang behind her vehicle and then she felt an impact to the rear and passenger side of her vehicle. She states that she later learned that the accident happened when a truck, owned by Ruan Transportation Management Systems, and being driven eastbound on Atlantic Avenue by Eddie Fisher, was attempting to make a left turn to head northbound on the [*3]Woodhaven Boulevard Service Road. The Fisher truck struck a van that was owned by Whitmore Equipment Leasing Co., Inc. and was operated by Joseph Alexis which had been stopped behind the Singh vehicle. Ms. Singh states that the impact propelled the Alexis van into her stopped car.

The police accident report provides in the accident description section,

"Driver of vehicle #1 (Fisher), states while making a left turn, vehicle #1(Fisher), struck vehicle # 2(Alexis), causing vehicle #2(Alexis), to strike vehicle #3(Singh). No injuries. P.O. did not witness."

In support of his motion for summary judgment, Joseph Alexis submits an affirmation from his counsel, Dominic P. Zafonte, Esq., a copy of the pleadings; a copy of the police accident report; and a copy of an affidavit of facts from Joseph Alexis, dated August 12, 2013.

In his affidavit, Mr. Alexis states that on June 1, 2011, at approximately 8:00 a.m. he was the driver of a 1992 GMC box truck owned by Whitmore Equipment Leasing Co. that was involved in an accident that took place on Atlantic Avenue near the intersection with Woodhaven Boulevard in Queens County, New York. He states, "when the accident occurred I was in the westbound turning lane on Atlantic Avenue waiting to turn south onto Woodhaven Boulevard. My truck was at a complete stop at a red light for at least a minute before the accident occurred. While I was stopped waiting for the light to turn, a tractor-trailer truck that was traveling east on Atlantic Avenue making a wide left turn to head north on Woodhaven Boulevard, struck the driver's side rear of my truck. As a result of the impact with the tractor trailer truck, my truck was pulled forward into a white Mercedes Benz SUV vehicle that was stopped in front of me."

Counsel for defendant Nirada Singh contends that the evidence submitted in support of her motion for summary judgment, including her affidavit and the police report, demonstrate that her vehicle, the lead vehicle of the three cars, was lawfully stopped at a red traffic signal when her car was rear-ended by the Alexis vehicle which had been propelled into her vehicle after being struck by the truck operated by Mr Fisher. Counsel contends that the instant action brought against Ms. Singh by her passenger, Amanda Kewal, should be dismissed because the evidence shows that Ms. Singh was lawfully stopped at the time of the accident and the sole proximate cause of the accident was the negligence of co-defendant Fisher striking the Alexis vehicle which was also stopped and further, there is no evidence in the [*4]record that Ms. Singh, who was stopped for at least a minute prior to the impact, was negligent in any manner.

Plaintiff Amanda Kewal did not oppose the motion of Nirada Singh for summary judgment dismissing the complaint as against Singh.

Co-defendant, Joseph Alexis, the driver of the middle vehicle in the chain reaction accident also moves for summary judgment dismissing the two actions brought against him, one by Ms. Kewal (Index No. 10722/130, and the second by Ms. Singh (Index No. 5562/13). In support of his motion, Alexis contends that the police report as well as his affidavit state that he was in the middle vehicle and was also lawfully stopped behind the Singh vehicle waiting at a red traffic signal when it was struck by the Fisher truck and propelled into the Singh vehicle in front of him.

As Alexis in the middle vehicle, was stopped and propelled into the Singh vehicle, counsel for Alexis contends that the proof submitted shows that he is entitled to summary judgment dismissing the two separate actions against him as Alexis, whose vehicle was stopped and pushed into the Singh vehicle could not be liable for injuries sustained by either Ms. Singh or Ms. Kewal and he was not comparatively negligent vis a vis the collision with the Fisher vehicle behind his(see Ferguson v Honda, 34 AD3d 356 [1st Dept. 2006]; Mustafaj v Driscoll, 5 AD3d 139 [1st Dept. 2004]; McNulty v DePetro, 298 AD2d 566 [2d Dept. 2002]; Harris v Ryder, 292 AD2d 499 [2d Dept. 2002]; Cerda v Paisley, 273 AD2d 339 [2d Dept. 2000]).

Plaintiff, Nirada Singh, in her action under Index No. 5562/2012 did not oppose Alexis's motion for summary judgment.

However, in opposition to the two motions, Michael J. Murphy, Esq., counsel for Eddie Fisher and Ruan Transportation Management Systems, Inc., submits the affidavit of Eddie Fisher dated September 16, 2013. In his affidavit, Mr. Fisher states that at the time of the accident he was traveling eastbound on Atlantic Avenue intending to make a left turn onto Woodhaven Boulevard. He states: "as I proceeded toward the intersection of Atlantic Avenue and Woodhaven Boulevard, a box truck proceeded past me heading West on Atlantic Avenue. I observed traffic to be clear and attempted to make a left turn onto Woodhaven Boulevard heading northbound. However, unbeknownst to me, the rear of co-defendant's vehicle was still sticking out in the intersection as I made my turn. The part of the truck that was illegally sticking into the intersection while stopped, was in my blind spot. As I made the turn, the left side of my vehicle came into contact with [*5]the rear corner driver side of the truck that was stopped in the intersection." Mr. Fisher contends that Alexis was negligent in stopping his vehicle in a position in which the rear of his box truck was jutting out into the intersection.

Counsel for Fisher claims that the Fisher affidavit creates a question of fact regarding the comparative negligence of the Alexis vehicle and provides a non-negligent explanation for striking the Alexis vehicle. Fisher claims that the Alexis vehicle improperly stopped in a position in which his vehicle was protruding into the intersection. Counsel states that based upon the differing versions of the accident summary judgment is not warranted. Fisher did not, however, dispute the version of the accident provided by Ms. Singh, does not provide any allegations regarding the comparative fault of the Singh vehicle and does not oppose the Singh motion for summary judgment other than stating that the motion is premature having been filed prior to the completion of discovery.

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]).

Here, the evidence demonstrates that the lead vehicle, a Mercedes Benz operated by Ms. Singh and occupied by plaintiff Kewal, was stopped at a red traffic signal at the intersection of Atlantic Avenue and Woodhaven Boulevard. The second vehicle, a box truck operated by Alexis, was also stopped directly behind the Singh vehicle when the truck, operated by Mr. Fisher, struck Alexis's vehicle while making a left turn thereby initiating the chain reaction accident. "The rearmost driver in a chain-reaction collision bears a presumption of responsibility" (Ferguson v Honda Lease Trust, 34 AD3d 356 [1st Dept. 2006], quoting De La Cruz v Ock Wee Leong, 16 AD3d 199[1st Dept. 2005]). In multiple-car, chain-reaction accidents, the courts have recognized that the operator of a vehicle which has come to a complete stop and is propelled into the vehicle in front of it, as a result of being struck from behind, is not negligent inasmuch as the operator's actions cannot be said to be the proximate cause of the injuries resulting from the collision (see Mohamed v Town of Niskayuna, 267 AD2d 909 [3rd Dept. 1999]). Evidence that a vehicle was rear-ended and propelled into the [*6]stopped vehicle in front of it may provide a sufficient non-negligent explanation (see Franco v. Breceus,70 AD3d 767 [2d Dept. 2010]; Katz v Masada II Car & Limo Serv., Inc., 43 AD3d 876 [2d Dept. 2007]). Here, both Singh and Alexis, whose vehicles were completely stopped at a red traffic signal at the time of the impact, demonstrated that their conduct was not a proximate cause of the rear-end collision between the Fisher vehicle and the vehicles ahead of it(see Robayo v Aghaabdul, 971 NYS2d 317[2d Dept. 2013]; Sayyed v Murray, 109 AD3d 464 [2d Dept. 2013]; Prosen v Mabella, 107 AD3d 870 [2d Dept. 2013]; Xian Hong Pan v Buglione, 101 AD3d 706 [2d Dept. 2012]).

Pursuant to Vehicle and Traffic Law § 1141: "the driver of a vehicle intending to turn to the left within an intersection shall yield the right of way to any vehicle approaching from the opposite direction which is within the intersection or so close as to constitute an immediate hazard." Here, both Singh and Alexis demonstrated prima facie that the Fisher vehicle made a left turn into the intersection when it was not safe to do so and struck the Alexis vehicle having failed to see the that which through proper use of the driver's senses he should have seen (see Laino v Lucchese, 35 AD3d 672 [2d Dept. 2006]; Berner v Koegel, 31 AD3d at 592 [2d Dept. 2006]; Bongiovi v Hoffman, 18 AD3d 686 [2d Dept. 2005]).

Thus, both Singh and Alexis satisfied their prima facie burden of establishing entitlement to judgment as a matter of law by demonstrating that their vehicles were both stopped at the time they were struck in a chain reaction which was initiated by the negligence of defendant Fisher.

Having made the requisite prima facie showing of their entitlement to summary judgment, the burden then shifted to defendant Fisher to raise a non-negligent explanation for the collision or a triable issue of fact as to whether Singh or Alexis was also negligent, and if so, whether that negligence contributed to the happening of the accident (see (see Xian Hong Pan v Buglione, 101 AD3d 706 [2d Dept. 2012]; Goemans v County of Suffolk,57 AD3d 478 [2d Dept. 2007]). Here, Fisher alleges that Alexis was negligent in stopping his vehicle in such position that the rear of his vehicle was protruding or sticking out into the intersection as he made his left turn. Fisher states that the part of the Alexis vehicle that was in the intersection was in his blind spot. Thus, he claims that as he made the left turn he could not see the Alexis vehicle. Fisher claims that there is a triable issue of fact as to whether defendant Alexis was negligent because his vehicle was protruding into the intersection and that said negligence was a proximate cause of [*7]the accident. As such, counsel contends that Alexis failed to meet his prima facie burden establishing that he is entitled to summary judgment as a matter of law by failing to prove his freedom from comparative negligence.

This court finds that Fisher failed to submit sufficient evidence as to any negligence on the part of either Singh or Alexis or to provide a non-negligent explanation for the accident sufficient to raise a triable question of fact (see Plummer v Nourddine, 82 AD3d 1069 [2d Dept. 2011]; Kastritsios v Marcello, 84 AD3d 1174 [2d Dept. 2011]; Ramirez v Konstanzer, 61 AD3d 837 [2d Dept. 2009]; Lampkin v Chan, 68 AD3d 727 [2d Dept. 2009]; Jumandeo v Franks, 56 AD3d 614 [2d Dept. 2008]). If the operator of the moving vehicle cannot come forward with evidence to rebut the inference of negligence, the occupants and owner of the stationary vehicle are entitled to summary judgment on the issue of liability (see Kimyagarov v Nixon Taxi Corp., 45 AD3d 736 [2d Dept. 2007]).

Both Singh and Alexis demonstrated their freedom from comparative negligence by submitting evidence that they were both stopped at an intersection waiting for the light to change. Even if the rear of the Alexis vehicle was protruding into the intersection as alleged by Fisher, in violation of applicable traffic regulations, this alone does not raise a question of fact as to whether the location of the Alexis vehicle was a proximate cause of the accident (see Vazquez v Roldan, 86 AD3d 640 [2d Dept. 2011]; Dauber v Stone, 76 AD3d 699 [2d Dept. 2010]; Wechter v Kelner, 40 AD3d 747 [2d Dept. 2007][liability cannot be imposed upon a party who merely furnished the condition or occasion for the occurrence of the event but was not one of its causes]; Remy v City of New York, 36 AD3d 602 [2d Dept. 2007]; Fermaglich v Arnone, 36 AD3d 584 [2d Dept. 2007]; Gerrity v Muthana, 28 AD3d 1063 [4th Dept. 2006]; Mendrykowski v NY Tel. Co., 2 AD3d 1410 [4th Dept. 2003]).

Defendant Fisher's contention that motions for summary judgment are premature is without merit. The defendant failed to offer any evidentiary basis to suggest that discovery may lead to relevant evidence. The mere hope and speculation that evidence sufficient to defeat the motion might be uncovered during discovery is an insufficient basis upon which to deny the motion (see CPLR 3212[f]; Hanover Ins. Co. v Prakin,81 AD3d 778 [2d Dept. 2011]; Essex Ins. Co. v Michael Cunningham Carpentry, 74 AD3d 733 [2d Dept. 2010]; Peerless Ins. Co. v Micro Fibertek, Inc., 67 AD3d 978 [2d Dept. 2009]; Gross v Marc, 2 AD3d 681 [2d Dept. 2003]).

Thus, as the defendant Fisher failed to proffer sufficient [*8]evidence to rebut the inference of his own negligence and to raise a triable issue of fact in this regard and as the evidence in the record demonstrates that there are no triable issues of fact as to whether defendant Singh or Alexis in the first two vehicles may have borne comparative fault for the causation of the accident, and based on the foregoing, it is hereby,

ORDERED, that the motion by defendant NIRADA SINGH for an order granting summary judgment dismissing the complaint of plaintiff AMANDA KEWAL and all cross-claims is granted, and it is further,

ORDERED, that the motion for an order granting summary judgment by defendant WHITMORE EQUIPMENT LEASING CO., INC., and JOSEPH ALEXIS dismissing the respective complaints of AMANDA KEWAL under Index No. 10722/2013 and of NIRADA SINGH under Index No. 5562/2013 and cross-claims under each action is granted, and it is further,

ORDERED, that the Clerk of Court is authorized to enter judgment accordingly.

Dated: November 6, 2013

Long Island City, NY

_______________________

ROBERT J. MCDONALDJ.S.C.

OCA e-submission: no Judge E-Mail