[*1]
McCloskey v Nieves
2015 NY Slip Op 51020(U)
Decided on July 7, 2015
Supreme Court, Bronx County
Hunter, 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This opinion is uncorrected and will not be published in the printed Official Reports.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 July 7, 2015
Supreme Court, Bronx County


John McCloskey, Plaintiff,

against

Dana Marie Nieves, Defendant.




23428/2013E



Appearances:



Plaintiff:



Jeffrey A. Nemerov, Esq.



Segan, Nemerov & Singer, P.C.



112 Madison Avenue



New York, NY 10016



(212) 696-9100



Defendant:



David Neil, Esq.



Law Offices of John Trop



73 Market Street, Suite 375



Yonkers, New York 10710



(914) 620-0037


Alexander W. Hunter Jr., J.

The plaintiff's motion for an order pursuant to CPLR 3212 granting him partial summary judgment on the issue of liability is granted.



The cause of action is for personal injuries allegedly sustained by the plaintiff in a motor vehicle accident that occurred on May 3, 2013 on the eastbound lanes of the Cross Bronx Expressway in Bronx County, New York. At the time of the accident, the plaintiff was stopped in traffic, when the defendant's vehicle collided with the rear end of plaintiff's vehicle. The accident occurred when two uninvolved vehicles entered into traffic in front of the plaintiff's vehicle and stopped in front of him.



The plaintiff argues that he is entitled to summary judgment as a matter of law because there are no triable issues of fact. The plaintiff asserts that the defendant's vehicle impacted the rear of his vehicle when he was forced to stop suddenly, and that a collision with the rear end of a stopped vehicle is prima facie evidence of negligence on the part of the operator of the moving vehicle.



The plaintiff further states that at various points during the defendant's deposition, defendant testified that she was one car length, or three feet, or one foot from the rear of the plaintiff's vehicle when she saw his brake lights illuminate before the accident. The plaintiff contends that he is entitled to summary judgment unless the defendant can provide a non-negligent explanation for the collision.



The defendant opposes the plaintiff's motion in its entirety, stating that the plaintiff suddenly stopped short in traffic, causing the defendant to be involved in a collision with the rear end of the plaintiff's vehicle. The defendant concedes that the accident occurred when two uninvolved vehicles entered into traffic in front of the plaintiff's vehicle and that the plaintiff was forced to stop in traffic. However, the defendant argues that the plaintiff stopped suddenly, and by doing so caused the accident.



In reply, the plaintiff argues that a "short stop" is insufficient by itself to rebut the presumption of negligence given to the driver of the vehicle that collided with the rear end of another vehicle. According to the plaintiff, the defendant's arguments are insufficient to defeat this motion as she has not put forth any evidence suggesting a non-negligent explanation for the accident in her opposition papers.



It is well settled that summary judgment is a drastic remedy that should only be granted when there are no triable issues of fact. Rotuba Extruders v. Ceppos, 46 NY2d 223 (1978); Andre v. Pomerov, 35 NY2d 261 (1974); C.P.L.R. 3212(b). The onus is upon the movant to make a prima facie showing of entitlement to summary judgment as a matter of law. Alvarez v. Prospect Hosp., 68 NY2d 320 (1986). Once such a showing is made, the party opposing the motion must submit proof in admissible form to show the existence of a triable issue of fact. Zuckerman v. City of New York, 49 NY2d 557 (1980). "The mere hope or speculation that evidence sufficient to defeat a motion for summary judgment may be uncovered during the discovery process is insufficient to deny the motion." Kimyagarov v. Nixon Taxi Corp., 45 AD3d 736, 737 (2nd Dept. 2007); see also Flores v. City of New York, 66 AD3d 599 (1st Dept. 2009).



"It is well settled that a rear-end collision with a stopped vehicle creates a presumption that the operator of the moving vehicle was negligent." Corrigan v. Porter Cab Corp., 101 AD3d 471 (1st Dept. 2012) quoting Agramonte v. City of New York, 288 AD2d 75 (1st Dept. 2001). A defendant must provide a non-negligent explanation for the collision in order to rebut the presumption of negligence. Id. Testimony that the front driver "stopped short" is "insufficient to rebut the presumption of negligence." Santana v. Tic-Tak Limo Corp., 106 AD3d 572 (1st Dept. 2013); see also Franco v. Rolling Frito-Lay Sales, Ltd., 103 AD3d 543 (1st Dept. 2013).



In the instant matter, the defendant failed to establish that triable issues of fact exist as to whether the defendant was negligent with respect to the rear end collision with the plaintiff's vehicle. The defendant bears a rebuttable presumption of negligence as a result of her vehicle colliding with the rear end of the plaintiff's vehicle when it was stopped. The sole justification that the defendant offered to demonstrate a non-negligent explanation for the collision was the [*2]plaintiff's deposition testimony wherein he stated that he applied the brakes suddenly when the traffic ahead of him stopped abruptly. Stopping short is "insufficient to rebut the presumption of negligence." Santana, 106 AD3d 572. Thus, the defendant failed to meet her burden in opposing the instant motion.



Accordingly, the plaintiff's motion for partial summary judgment is granted on the issue of liability.



Movant is directed to serve a copy of this order with notice of entry upon all parties within twenty (20) days of entry and file proof thereof with the clerk's office.



This constitutes the decision and order of this court.



Dated: July 7, 2015ENTER:

___________________________

J.S.C.