[*1]
Dellicarpini v Burger
2015 NY Slip Op 50710(U) [47 Misc 3d 1219(A)]
Decided on May 11, 2015
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This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on May 11, 2015
Supreme Court, Queens County


Gregory Dellicarpini, JR., Plaintiff,

against

Barbara L. Burger and DARLENE A, INGENITO, Defendants.




701469/2014
Robert J. McDonald, J.

The following papers numbered 1 to 14 were read on this motion by defendant, Darlene A, Ingenito, for an order pursuant to CPLR 3212(b) granting summary judgment in favor of said defendant on the issue of liability and dismissing the plaintiff's complaint and all cross-claims asserted against her:

PapersNumbered

Notice of Motion-Affidavits-Exhibits-Memorandum of Law.1 - 6



Affirmation in Opposition......l.......................7 - 11



Reply Affirmation.....................................12 - 14



_________________________________________________________________



In this negligence action, the plaintiff Gregory Dellicarpini, Jr., seeks to recover damages for personal injuries he sustained as a result of a multi-vehicle chain reaction accident that occurred on September 16, 2013, in the drive-up teller lane of the TD Bank located on Route 110 and Smith Street in East Farmingdale, Suffolk County. As described in the police report, three vehicles were waiting in line at the bank when the [*2]third vehicle, operated by defendant Burger, struck the second vehicle, operated by defendant Darlene Ingenito, propelling the Ingenito vehicle into the first vehicle operated by non-party Rene Busto. The plaintiff, Mr. Dellicarpini was a front seat passenger in the Ingenito vehicle. As a result of the accident, plaintiff alleges that he sustained physical injuries including herniated and bulging discs of the cervical and lumbar spines.



The plaintiff commenced this action by filing a summons and complaint on March 4, 2014, naming the driver of his vehicle, Ms. Ingenito and the driver of the third vehicle, Ms. Burger, as defendants. Issue was joined by service of Ms. Ingenito's verified answer with cross-claims dated May 6, 2014. Defendant Burger joined issue by service of a verified answer with cross-claims dated April 8, 2014. Defendant Ingenito now moves for an order pursuant to CPLR 3212(b), granting summary judgment on the issue of liability and dismissing the plaintiff's claimant and all cross-claims against her on the ground that she bears no liability for causing the accident.



In support of the motion, defendant Ingenito submits an affirmation from counsel, Shawn P. O'Shaughnessy, Esq., a copy of the pleadings; a copy of the plaintiff's verified bill of particulars; a copy of the transcript of the deposition of non-party witness, Police Officer Peter Schultz; copy of the police accident report (MV-104); and an affidavit of facts from the defendant Ms. Ingenito.



In her affidavit, Ms. Ingenito states that on September 16, 2013, she was the operator of a 2002 Toyota and was waiting in line at the TD Bank drive-thru teller window in East Farmingdale. Plaintiff, Gregory Dellicarpini, Jr., was a passenger in her vehicle. She states that while stopped, with her foot on the brake, her vehicle was struck from behind by a Toyota motor vehicle operated by defendant, Barbara L. Burger. She states that as a result of the contact her vehicle was propelled forward into the rear of a Dodge motor vehicle operated by Renee Busto. She states that she did not make contact with the Dodge prior to being struck in the rear by the Burger vehicle.



The accident description portion of the police accident report prepared by Officer Schultz states as follows,



"Veh No.1(Busto), Veh #2 (Ingenito), and Veh #3 (Burger), in line at bank drive up teller. Veh #3(Burger) struck veh #2 (Ingenito), pushing Veh #2 into Veh #1. Op 3 (Burger) claims her leg cramped up and she hit the gas."



Defendant also submits the deposition testimony of Police Officer Schultz of the Suffolk County Police Department who responded to the scene of the accident. He stated that one car was at the window and a second vehicle was waiting behind it. He stated that the driver of Vehicle #3, Ms. Burger, told him that she pulled up behind vehicle No. 2, and her leg cramped up and instead of keeping it on the brake, she hit the gas. He stated that he did not witness the accident.



Counsel for defendant, Ingenito, contends that the evidence submitted in support of the motion for summary judgment including the deposition of Officer Schultz, demonstrates, prima facie, that the Ingenito vehicle was lawfully stopped in the bank line when the Burger vehicle, the third of the three vehicles, struck her vehicle. As a result, Ingenito in vehicle #2, was propelled into the Busto vehicle, the first vehicle in the line of cars. Counsel contends that summary judgment should be awarded to Ingenito, dismissing the plaintiff's complaint and defendant's cross-claim because the evidence shows that her vehicle was completely stopped in line at the time of the accident and the sole proximate cause of the accident was the negligence of Burger in rear-ending her vehicle causing it to be propelled into the first vehicle. Counsel contends, based upon the affidavit of Ms. Ingenito, the testimony of the police officer stating that Ms. Burger hit the accelerator instead of the brake, that Ms. Burger was negligent and that her negligence was the sole proximate cause of the accident. Counsel clams that Ms. Burger failed to maintain a proper speed and failed to maintain a safe distance from the vehicle in front of hers. Counsel contends that the evidence shows that the two lead vehicles in front of the Burger vehicle, were both stopped in line at the time of the impact, were not comparatively negligent, and their actions were not a proximate cause of the injuries allegedly sustained by Mr. Dellicarpini, the passenger in the Ingenito vehicle.



The plaintiff has not opposed the motion.



However, counsel for defendant Burger, Joseph C. Sette, Esq., opposes the motion stating that the Ingenito affidavit is insufficient to demonstrate, prima facie, that the Ms. Burger was negligent and that her negligence was the sole proximate cause of the accident. Counsel claims that the affidavit fails to state the manner in which Ms. Ingenito stopped her car, how long her foot was on the brake prior to impact, and how long her car was stopped. Thus, it is alleged that issues of fact exist warranting the denial of the co-defendant's motion for summary judgment. Counsel also asserts that the motion should be denied as premature as depositions of the parties have not yet been held.



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]; Velazquez v Denton Limo, Inc., 7 AD3d787 [2d Dept. 2004].



Here, Ms. Ingenito stated that her vehicle was at a complete stop when Ms. Burger's vehicle struck her 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]). Here, Ingenito who was stopped at the time of the impact, demonstrated that her conduct was not a proximate cause of the rear-end collision. Thus, Ms. Ingenito satisfied her prima facie burden of establishing entitlement to judgment as a matter of law by demonstrating that her vehicle was stopped at the time it was struck in the rear in a chain reaction which was initiated by defendant Burger (see Robayo v Aghaabdul, 109 AD3d 892 [2d Dept. 2013]; Xian Hong Pan v Buglione, 101 AD3d 706[2d Dept. 2012]).



Having made the requisite prima facie showing of entitlement to summary judgment, the burden then shifted to defendant Burger to raise a non-negligent explanation for the rear-end collision or a triable issue of fact as to whether Ingenito 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]).



This court finds that Defendant, Burger, who did not submit an affidavit in opposition to the motion, failed to provide evidence of a non-negligent explanation for the accident [*3]sufficient to raise a triable question of fact (see Bernier v Torres, 79 AD3d 776 [2d Dept. 2010]; Lampkin v Chan, 68 AD3d 727 [2d Dept. 2009]; Cavitch v Mateo, 58 AD3d 592 [2d Dept. 2009]; Garner v Chevalier Transp. Corp, 58 AD3d 802 [2d Dept. 2009]; Kimyagarov v Nixon Taxi Corp, 45 AD3d 736 [2d Dept. 2007]; 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]). 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]). In addition, Ms. Burgers version of how the accident occurred as told to the police officer, constitutes an admission of negligence in that she told the officer that she struck Ingenito's stopped vehicle when her leg cramped and she hit the accelerator rather than the brake.



The defendants' contention that the plaintiffs' motion for summary judgment is 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]).



Therefore, as defendant Burger failed to proffer sufficient evidence to rebut the inference of her 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 Ingenito 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 Ingenito for summary judgment is granted, and the plaintiff's complaint and all cross-claims are dismissed against her and the Clerk of Court is authorized to enter judgment accordingly.



Dated: May 11, 2015

Long Island City, NY

_______________________



ROBERT J. MCDONALDJ.S.C.