[*1]
| Acosta v Rashid |
| 2014 NY Slip Op 50023(U) [42 Misc 3d 1211(A)] |
| Decided on January 13, 2014 |
| Supreme Court, Queens County |
| McDonald, J. |
| Published by New York State Law Reporting
Bureau pursuant to Judiciary Law § 431. |
| This opinion is uncorrected and will not be
published in the printed Official Reports. |
Supreme Court, Queens County
Jossibel Espinal
Acosta, Plaintiff,
against
M.KAZI RASHID, MD HARUNUR KAZI RASHID and
LUCAS GOMEZ, Defendants.
|
5349/2013
Robert J. McDonald, J.
The following papers numbered 1 to 8 were read on this motion by
defendants KAZI MD HARUNUR s/h/a M. KAZI RASHID a/k/a MD HARUNUR
KAZI RASHID, for an order pursuant to CPLR 3212, granting summary judgment
dismissing the plaintiff's complaint and all cross-claims on the ground that said defendant
bears no liability for the occurrence of the accident:
Papers
Numbered
Notice of Motion-Affidavits-Exhibits.......................1 - 5
Defendant Lucas Gomez's Affirmation in Opposition..........6 - 8
_________________________________________________
________________
This is an action for damages for personal injuries allegedly sustained by
plaintiff Jossibel Espinal Acosta arising out of a four vehicle chain reaction accident
which took place on January 11, 2013, between the vehicle operated by the plaintiff,
Jossibel Espinal Acosta, the vehicle owned and operated by defendant, Lucas Gomez, the
vehicle owned and operated by defendant MD Harunur Kazi Rashid and the vehicle
operated by Luis [*2]Narvaze-Salas, who is not named as
a party to this action. The accident occurred in stop and go traffic on Corona Avenue
near the intersection with Alstyne Avenue in the County of Queens, State of New York.
Plaintiff commenced the action by filing a summons and complaint on
March 20, 2013. Issue was joined by service of defendant Lucas Gomez's verified
answer with cross-claims dated June 10, 2013. Defendant Rashid appeared by service of
a verified answer with cross-claims dated July 2, 2013.
Defendant, MD Harunur Kazi Rashid, now moves by notice of motion, prior
to the completion of discovery, for an order pursuant to CPLR 3212(b), granting
summary judgment and dismissing the plaintiff's complaint against him on the ground
that his vehicle, the third vehicle in the chain, was slowing down to stop in traffic when it
was struck in the rear by the vehicle operated by defendant Lucas Gomez. Rashid, the
operator of the third vehicle in the chain contends that he was not negligent in the
operation of his vehicle because his vehicle was lawfully proceeding in traffic on Corona
Boulevard when it was struck in the rear by the vehicle owned and operated by Lucas
Gonzalez, the fourth vehicle in the chain which caused the Rashid vehicle to be propelled
into the plaintiff's vehicle which was the second vehicle in the chain. Rashid contends
that Gomez negligently initiated the chain reaction accident when he hit his vehicle in the
rear.
In support of the instant motion for summary judgment, the MD Harunur
Kazi Rashid submits an affirmation of counsel Richard E. Noll, Esq., a copy of the
pleadings, a copy of the police accident report, and the affidavit of defendant, MD
Harunur Kazi Rashid, dated August 13, 2013.
The accident description contained in the police report, which is based upon
statements of the parties states:
"Driver Veh 1(non-party) states he was stopped in traffic and Veh
#2(Acosta) struck Veh #1 from behind. Driver Veh # 2(Acosta) states she was stopped in
traffic when Veh #3 (Rashid) struck Veh #2 causing Veh #2(Acosta) to strike Veh #1.
Driver Veh 2(Acosta) states that after being struck she pulled Veh #2 out of the way.
Then Veh #3(Rashid) accelerated and struck Veh #1. Driver Veh #3(Rashid) states he
was struck from behind by Veh #4 causing Veh #3 to strike Veh #2 then Veh # 1. Driver
Veh #4(Gomez) states he was distracted and struck Veh #3.
In his affidavit, Mr Rashid states that on January 11, 2013, [*3]at approximately 8:00 p.m. his vehicle was slowing to a
stop for traffic on Corona Avenue when his car was struck from behind by the 2000
Acura owned and operated by Lucas Gomez. As a result of the contact to the rear of his
car, he was pushed into the car directly in front of his which was stopped in traffic. He
states that after the accident, Mr. Gomez stated he was distracted and therefore failed to
avoid striking Rashid's vehicle in the rear. Rashid states he had no notice the accident
was going to occur and there was nothing he could have done to avoid the accident.
Counsel for Rashid contends that the evidence submitted in support of his
motion for summary judgment demonstrates that the Rashid vehicle, the third vehicle of
the four cars, was lawfully proceeding in traffic when it was rear-ended by the Gomez
vehicle which propelled his vehicle into the plaintiffs' vehicle. Counsel contends that
summary judgment should be awarded to Rashid dismissing the plaintiff's complaint and
all cross-claims against him because the evidence showed that Rashid was lawfully
slowing down in traffic at the time of the accident and the sole proximate cause of the
accident was the negligence of Lucas Gomez, who stated he was distracted, in
rear-ending the Rashid vehicle. Further, counsel asserts that there is no evidence in the
record that Rashid was negligent in any manner. As Rashid, in the third vehicle was
propelled into the plaintiff's vehicle, counsel contends that the proof submitted shows
that the complaint should be dismissed against Rashid as Rashid could not be liable for
any of the injuries claimed by the plaintiff (see Plummer v Nourddine, 82 AD3d 1069 {2d Dept. 2011] Parra v Hughes, 79 AD3d
1113 [2d Dept. 2011] 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]).
Further, Rashid contends that it is clear that Gomez, in the moving vehicle,
who admitted to the police officer that he was distracted prior to striking the Rashid
vehicle, was negligent and started the chain reaction accident because he failed to
maintain a proper lookout and failed to maintain a proper speed and a safe distance from
the vehicle in front of him in Violation of VTL § 1129(a) and was unable to slow
down in time to avoid striking Rashid's vehicle in front of it.
In opposition, counsel for defendant, Lucas Gomez, John J. Darcy, Esq.,
submits that there are triable issues of fact as to the comparative negligence of the
movant Rashid. Counsel also asserts that the motion is premature in that discovery has
not yet been completed. Counsel states that the plaintiff and co-[*4]defendants have not yet been deposed and their testimony
will have a bearing on liability aspects in this matter.
Defendant Lucas Gomez, who has not yet been deposed has not submitted an
affidavit of facts with respect to his version of the accident. In addition, the plaintiff has
not opposed the motion.
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 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, non-negligent explanation for the accident (see Kertesz v Jason Transp. Corp.,
102 AD3d 658 [2d Dept. 2013] Ramos v TC Paratransit, 96 AD3d 924 [2d Dept. 2012] Pollard v Independent Beauty &
Barber Supply Co., 94 AD3d 845 [2d Dept. 2012] Klopchin v Masri, 45 AD3d
737 [2d Dept. 2007]).
Here, defendant Rashid, states that his vehicle was slowing down to stop in
traffic when the fourth vehicle in the chain, operated by defendant Gomez, struck his
vehicle in the rear causing 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 is stopped or coming to a 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]).
Thus, Rashid having made the requisite prima facie showing of his
entitlement to summary judgment, as a matter of law, the burden then shifted to Gomez
to raise a non-negligent explanation for the rear-end collision or a triable issue of fact as
to whether co-defendant Rashid was also negligent, and if so, whether that negligence
contributed to the happening of the accident (see Goemans v County of
Suffolk,57 AD3d 478 [2d Dept. 2007]).
[*5]
This court finds that the Gomez failed to
submit an affidavit in opposition to the motion and failed to provide any other evidence
as to any negligence on the part of Rashid or to provide a non-negligent explanation for
the accident sufficient to raise a triable question of fact (see Grimm v Bailey, 105 AD3d
703 [2d Dept. 2013] Lampkin v Chan, 68 AD3d 727 [2d Dept. 2009] Gomez v Sammy's Transp.,
Inc., 19 AD3d 544 [2d Dept. 2005][the defendants failed to raise a triable issue
of fact by only interposing an affirmation of their attorney who lacked knowledge of the
facts]). 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]). The evidence demonstrated that the
Rashid vehicle was lawfully proceeding on Corona Avenue at 10 - 15 miles per hour
when his vehicle was struck in the rear, and no evidence was presented to show that his
conduct was a proximate cause of the rear-end collision between his vehicle and the
vehicle behind him (see Aikens-Hobson v. Bruno, 97 AD3d 709 [2d Dept. 2012]
Daramboukas v Samlidis,
84 AD3d 719 [2d Dept. 2011] Plummer v Nourddine, 82 AD3d 1069 {2d Dept. 2011] Parra v Hughes, 79 AD3d
1113 [2d Dept. 2011] Franco v Breceus, 70 AD3d 767[2d Dept. 2010] Shirman v Lawal, 69 AD3d
838 [2d Dept. 2010] Katz
v Masada II Car & Limo Serv., Inc., 43 AD3d 876 [2d Dept. 2007]).
Gomez's contention that the motion for summary judgment is premature is
without merit. 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]). Further, the lack of disclosure does not excuse the failure of
the party with personal knowledge to submit an affidavit in opposition to the motion (see
Rainford v Han, 18 AD3d
638 [2d Dept. 2005] citing Niyazov v Bradford, 13 AD3d 501 [2d Dept. 2004]).
Accordingly, as the evidence in the record demonstrates that defendant
Gomez failed to provide a non-negligent explanation for the collision and as no triable
issues of fact have been put forth as to whether Rashid may have borne comparative fault
for the causation of the accident, and based on the foregoing, it is hereby
[*6]
ORDERED, that the motion by
defendant M.KAZI RASHID, MD HARUNUR KAZI RASHID for summary judgment
dismissing the complaint and all cross-claims against him is granted, and it is further,
ORDERED, that the Clerk of Court is authorized to enter judgment
accordingly.
Dated: January 13, 2014
Long Island City, NY
_______________________
ROBERT J. MCDONALDJ.S.C.