Sukhdev
Singh, Plaintiff,
against
Unell M. Burton, Defendant.
|
5510/2013
Robert J. McDonald, J.
The following papers numbered 1 to 15 were read on this motion by the plaintiff,
SUKHDEV SINGH, for an order pursuant to CPLR 3212(b), granting plaintiff partial
summary judgment on the issue of liability and setting the matter down for a trial on
serious injury and damages; and for an order striking and dismissing defendant's
affirmative defense as to the failure to use available seat belts:
Papers
Numbered
Notice of Motion-Affirmations-Exhibits ..........1 - 6
Affirmation in Opposition........................7 - 10
Reply Affirmation...............................11 - 15
In this action for negligence, the plaintiff, Sukhdev Singh, seeks to recover
damages for personal injuries he allegedly sustained as a result of a motor vehicle
accident that occurred on June 16, 2012, on Atlantic Avenue at or near 107th Street,
Queens County, New York. Plaintiff alleges that he sustained injuries when his vehicle,
which was stopped at a red traffic signal, was struck in the rear by the vehicle owned and
operated by defendant, Unell M. Burton. As a result of the accident he allegedly
sustained serious physical injuries to his left [*2]shoulder, neck, back and left knee which required
arthroscopic surgery.
This action was commenced by the plaintiff by the filing of a summons and
complaint on March 22, 2013. Issue was joined by service of defendant's verified answer
dated May 3, 2013. The plaintiff filed a Note of Issue on May 19, 2014. This matter is
presently on the calendar on the calendar of the Trial Scheduling Part for December 15,
2014.
Plaintiff now moves for an order pursuant to CPLR 3212(b), granting partial
summary judgment on the issue of liability and setting the matter down for a trial on
damages only.
In support of the motion, the plaintiff submits an affirmation from counsel,
Suzanne L. Smith, Esq; a copy of the pleadings; a copy of the plaintiff's verified bill of
particulars and supplemental bills of particulars; a copy of the transcript of the
examination before trial of defendant, Unell M. Burton, and plaintiff, Sukhdev Singh;
and a copy of the police accident report (MV-104).
The description portion of the police accident report prepared by the
responding officer states, "Driver of Vehicle No.1 (plaintiff) states he was stopped at a
red light eastbound on Atlantic Avenue when Vehicle #2(defendant) struck Vehicle #1
from the rear. Driver of Vehicle #2 states she was driving on eastbound Atlantic Avenue
and did not see Veh #1 stopped at light and struck his vehicle."
In his examination before trial taken on August 27, 2013, the plaintiff, age
48, testified that he is self-employed as a livery cab driver. On the date of the accident,
June 16, 2012, at approximately 5:00 p.m., he was operating a 2005 Lincoln Town car
and was heading home after completing work for the day. He testified that he was
stopped for a red traffic signal on eastbound Atlantic Avenue at the intersection with
107th Street. There were several vehicles stopped in front of his at the red signal. He
stated that two to three seconds after he stopped his vehicle it was struck in the rear at a
high rate of speed and with a heavy impact by the vehicle operated by the defendant. He
stated that the light was steady red up until the time of the impact. He was wearing his
seatbelt at the time of the accident. He left the scene by ambulance and was transported
to the emergency room at Jamaica Hospital.
In her examination before trial, taken on October 31, 2013, defendant, Unell
M. Burton, age 81, testified that on the day of the accident she was driving a 2003
Toyota Camry. She was coming from Church in Brooklyn and heading back to her home
in Queens.At the intersection of Atlantic and 107th Street she stated that she stopped
behind the plaintiff's vehicle at a red light. There were three of four cars in front of the
plaintiff's vehicle.When the traffic signal turned green, the vehicle in front of her started
moving and she started moving. She claims plaintiff's vehicle then stopped causing her to
strike plaintiff's vehicle in the rear.
The plaintiff contends that the defendant driver was negligent in the
operation of her vehicle in striking the plaintiff's vehicle in the rear. Plaintiff's counsel
contends that the accident was caused solely by the negligence of the defendant driver in
that her vehicle was traveling too closely in violation of VTL § 1129(a) and that the
driver failed to safely stop her vehicle prior to rear-ending the plaintiff's vehicle. Counsel
contends that the evidence indicates that the plaintiff's vehicle was lawfully stopped at a
red traffic signal and was struck from behind by the defendant's vehicle. Counsel
contends, therefore, that the plaintiff is entitled to partial summary judgment on the issue
of liability because the defendant did not stop her vehicle in time.
In opposition, defendant's counsel, Andrew J. Mundo, Esq. contends that a
question of fact exists as to the causation of the accident as the defendant testified,
contrary to the plaintiff's version of the accident, that the plaintiff's vehicle starting
moving when the light turned green and then came to a stop for no apparent reason
causing her strike the rear of his vehicle. Defendant contends that based upon the
testimony of the defendant, there is a question of fact as to how the accident occurred
which must be determined by the jury. Counsel asserts that the defendant has put forth a
non-negligent explanation for the rear end collision that being that the plaintiff made a
sudden stop after beginning to proceed after the light turned green. Counsel also
contends that the transcripts are inadmissible because there is no proof that they were
signed by the deposed party or sent to the deposed party to review pursuant to CPLR
3116(a).
In reply, the plaintiff has submitted copies of the deposition transcripts
signed by the respective parties.
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]).
"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"
(Macauley v ELRAC, Inc.,
6 AD3d 584 [2d Dept. 2003]). 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, 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, plaintiff testified that his vehicle was completely stopped for five to
ten seconds at a red traffic signal on Atlantic Avenue when it was struck from behind by
defendant's motor vehicle. Thus, plaintiff satisfied his prima facie burden of establishing
entitlement to summary judgment as a matter of law by demonstrating that his vehicle
was stopped when it was struck in the rear by the vehicle operated by defendant Unell M.
Burton(see Volpe v Limoncelli,74 AD3d 795 [2d Dept. 2010]; Vavoulis v Adler, 43 AD3d
1154 [2d Dept. 2007]; Levine v Taylor, 268 AD2d 566 [2d Dept.
2000]).
Having made the requisite prima facie showing of entitlement to summary
judgment, the burden then shifted to defendant to raise a triable issue of fact as to
whether plaintiff was also negligent, and if so, whether his negligence contributed to the
happening of the accident (see Goemans v County of Suffolk,57 AD3d 478 [2d
Dept. 2007]).
This court finds that the defendant failed to submit evidence as to any
negligence on the part of plaintiff or to provide a non-negligent explanation for the
accident sufficient to raise a triable question of fact (see Lampkin v Chan, 68 AD3d
727 [2d Dept. 2009]; Gomez v Sammy's Transp., Inc., 19 AD3d 544 [2d Dept.
2005]). If the operator of the moving vehicle cannot [*3]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 plaintiff, who was in a stopped vehicle,
operated his vehicle in a nonnegligent manner and no evidence was presented to show
that he contributed to the happening of the injury-producing event (see
Aikens-Hobson v Bruno,97 AD3d 709 [2d Dept. 2012]; Daramboukas v Samlidis, 84
AD3d 719 [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]).
Further, although defendant contends that the accident was the result of the plaintiff
driver proceeding at a green traffic signal and then stopping, this does not explain her
failure to maintain a safe distance from the vehicle in front of her [see Dicturel v
Dukureh,71 AD3d 558 [1st Dept. 2010]; Shirman v Lawal,69 AD3d 838 [2d
Dept. 2010]; Lampkin v Chan,68 AD3d 727 [2d Dept. 2009]; Zdenek v
Safety Consultants, Inc.,63 AD3d 918 [2d Dept. 2009]). Although the defendant
claims that the light was green at the intersection when the plaintiff came to a stop, the
defendant did not provide any evidence that she maintained a reasonably safe speed and
reasonable safe distance behind the plaintiff's vehicle or that she attempted to exercise
reasonable care to avoid colliding with the lead vehicle (see Gutierrez v Trillium USA,
LLC, 111 AD3d 669 [2d Dept. 2013][vehicle stops which are foreseeable under the
prevailing traffic conditions, even if sudden and frequent, must be anticipated by the
driver who follows, since he or she is under a duty to maintain a safe distance between
his or her car and the car ahead]; Hackney v Monge, 103 AD3d 844 [2d Dept. 2013]; Byrne v Calogero, 96 AD3d
704 [2d Dept. 2012]; Savarese v Cerrachio, 79 AD3d 725 [2d Dept.
2007][defendant's deposition testimony that the accident occurred after the light had
turned green and the plaintiff's vehicle began to slowly move forward did not raise a
triable issue of fact as to a non-negligent explanation for the happening of the accident];
Ramirez v Konstanzer, 61
AD3d 837[2d Dept. 2009][the defendant's contention, made in opposition to the
plaintiffs' motion, that the plaintiff proceeded once the traffic light turned green but then
suddenly stopped, did not rebut the inference of negligence by providing a non-negligent
explanation for the collision]).
The defendant's contention that the deposition transcripts are not in
evidentiary form is without merit. The plaintiff's counsel supplied deposition transcripts
signed by the parties with the reply affirmation.
Accordingly, this court finds that in opposition to [*4]plaintiffs' motion, defendant failed to submit evidence
sufficient to raise a triable issue of fact (see Arias v Rosario, 52 AD3d 551 [2d Dept. 2008]; Smith v Seskin, 49 AD3d
628 [2d Dept.2008]; Campbell v City of Yonkers, 37 AD3d 750 [2d Dept.
2007]). As the evidence in the record demonstrates that the defendant failed to provide a
non-negligent explanation for the collision and as no triable issues of fact have been put
forth as to whether plaintiff may have borne comparative fault for the causation of the
accident, and based on the foregoing, it is hereby,
ORDERED, that the affirmative defense of failure to use an available seat
belt contained in the defendant's answer is dismissed without opposition, and it is
further,
ORDERED, that the plaintiff's motion is granted, and the plaintiff,
SUKHDEV SINGH, shall have partial summary judgment on the issue of liability against
the defendant, UNELL M. BURTON,and the Clerk of Court is authorized to enter
judgment accordingly; and it is further,
ORDERED, that this matter remains on the trial calendar of the Court on
December 15, 2014 for trial on the issue of serious injury and damages.
Dated: November 21, 2014
Long Island City, N.Y
_________________ROBERT J. MCDONALDJ.S.C.