Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of motion of defendants Harris Water Main & Sewer Contractors, Inc. (hereinafter Harris Water) and Daniel L. Smith (hereinafter Smith), (hereinafter collectively as defendants) filed on January 18, 2019, under motion sequence eight, for an order pursuant to CPLR 3212 granting summary judgment in their favor on liability and dismissing the complaint of Jeffrey Jacques (hereinafter plaintiff or Jacques). The motion is opposed by the plaintiff.

Notice of Motion

Affirmation in Support

Exhibit A to N1

Affirmation in Opposition

Affidavit of Plaintiff

Expert Affidavit of Kevin T. Johnson, A.C.T.A.R.

Expert Affidavit of Carl M. Berkowitz, Ph.D

Exhibit A to E

Affirmation in Reply

On January 29, 2016, plaintiff commenced the instant action for damages for personal injuries by filing a summons and verified complaint with the Kings County Clerk's Office (hereinafter KCCO). On or about March 14, 2016, the defendants jointly interposed a verified answer. On June 27, 2018, plaintiff filed the note of issue. By order of this court dated September 21, 2018, the time to move for summary judgment was extended to January 21, 2019.

The verified complaint and verified bills of particulars allege the following salient facts. On November 27, 2015, at approximately 6:45 a.m., Jacques, who driving his vehicle eastbound on Atlantic Avenue near Sheffield Avenue in Brooklyn, New York, was involved in a motor vehicle accident (hereinafter the subject accident) with a Case backhoe ^[FN1] (hereinafter the subject backhoe) operated by Smith and owned by Harris Water. Plaintiff alleges that Smith was negligent in the operation of the backhoe. Harris Water was negligent in operating a construction site by allowing its construction vehicles to park, load and unload in a manner that created an unsafe condition. Plaintiff further alleges that Harris Water failed to warn oncoming vehicles about the movement of the backhoe. Plaintiff contends that due to the defendants negligence he suffered serious injuries.

Defendants' motion papers consist of a notice of motion, an affirmation of counsel, and eighteen annexed exhibits labeled A through N1. Exhibit A includes a copy of plaintiff's summons and verified complaint, and a copy of the defendants' verified answer. Exhibit B includes copies of the following documents: plaintiff's verified bill of particulars dated June 24, 2017, supplemental verified bill of particulars dated January 5, 2018, and verified amended bill of particulars dated June 25, 2018. Exhibit C is purported to be court orders from compliance conferences held on June 29, 2017 and January 11, 2018. The copies included are not signed by the Judicial Hearing Officer. Exhibit D is the deposition testimony of plaintiff Jeffrey Jacques. Exhibit E is the deposition testimony of defendant Daniel L. Smith. Exhibit F is the deposition testimony of Steve Kogel, President of Harris Water. Exhibit G is the deposition testimony of Elvis Paradis, a Harris Water employee. Exhibit H is a collection of sixteen color photographs [*2]that served as deposition exhibits. Exhibit I is a Final Pre-Note order dated June 22, 2018. Exhibit J is a copy of the Note of Issue filed on June 27, 2018. Exhibit K is an order of this court dated September 21, 2018, extending the time to file summary judgment motions to January 21, 2019. Exhibit L is an affidavit by defendant Daniel L. Smith. Exhibit L1 is comprised a document entitled Good Faith Video Disclosure dated October 7, 2016 and of a DVD video described as a depiction of the subject accident of November 27, 2015. Exhibit M is the expert affidavit of Daniel M. Wolfe, Ph.D, ACTAR. Exhibit M1 is the professional biographical outline of Daniel M. Wolfe, Ph.D, ACTAR. Exhibit M2 is the report of Daniel M. Wolfe, Ph.D, ACTAR. Exhibit N is the expert affidavit of Shawn F. Harrington. Exhibit N1 is the professional biographical outline of Shawn F. Harrington.

Plaintiff's opposition papers include the following documents: an affirmation of counsel; affidavit of plaintiff Jeffrey Jacques; an affidavit of Kevin T. Johnson, ACTAR, an expert in accident reconstruction; an affidavit of Carl M. Berkowitz, Ph.D, a transportation engineering expert; and five annexed exhibits labeled A to E. Exhibit A is a group of color photographs taken from a video of the subject accident. Exhibit B is the deposition testimony of Steven Kogel, President of Harris Water. Exhibit C is the deposition testimony of defendant Daniel L. Smith. Exhibit D is the Harris Water Main & Sewer Contractors, Inc. Employee Incident Report dated November 27, 2015. Exhibit E is the deposition transcript of Elvis Paradis, a Harris Water employee.

There is no dispute that on November 27, 2015, at approximately 6:45 a.m., defendant Smith was operating the subject backhoe owned by defendant Harris Water. At the time, Smith was in the parking lane in front of Harris Water's building. Smith then drove the subject backhoe across moving lanes of traffic into the far left lane. While in the far left lane traveling eastbound on Atlantic Avenue a vehicle operated by Jeffrey Jacques collided with the rear of Smith's vehicle.

In support of their motion, the defendants submitted, among other thing, a video (hereinafter the video) that captured the subject accident, and the deposition transcript of four individuals. Included were the transcripts of Jacques and Smith, the drivers of the colliding vehicles. Also included were the transcripts of Steven Kogel, Harris Water's president and Elvis Paradis, a Harris Water employee. Paradis was present at the Harris Water job site at the time of the accident but did not witness the collision. The defendants' also submitted the reports of Daniel M. Wolfe, Ph.D, ACTAR and Shawn F. Harrington two experts on accident reconstruction.

The video was admitted with the consent of the parties as a true and accurate representation of the subject accident and depicted the following. On the date of the accident, Harris Water had a manned dump truck with its headlight flashing in the parking lane in front of its office building facing eastbound on Atlantic Avenue. The back part of the manned dump truck was lifted and then lowered and a worker jumped out of the back of the dump truck into the travel lane on the left side of the dump truck. To the right of the manned dump truck was a worker on the sidewalk surrounded by red and white diagonally striped material commonly used by worker to set up barricades. To the left of the dump truck was three lanes for eastbound moving traffic on Atlantic Avenue. Directly in front of the manned dump truck was a parked car. [*3]On the travel lane adjacent to the parking lane was another Harris Water dump truck that was double parked. The double parked dump truck was to the left of the parked car and ahead of the manned dump truck that was in the parking lane.

The subject backhoe was in the parking lane behind the manned dump truck. Smith rotated the subject backhoe to at an angle perpendicular to the three moving lanes of Atlantic Avenue. Smith did not wait for traffic to stop, instead he went across Atlantic Avenue nearly perpendicular to the travel lanes until he reached the far left travel lane.

While he traveled across the moving lanes cars continued to zoom past Atlantic Avenue in front of Smith. When Smith made it to the far left lane he straightened the backhoe to proceed eastbound on Atlantic Avenue. He then simultaneously slowed his vehicle while lowering his bucket. In the few seconds that he was in the left lane, slowing the backhoe and lowering the bucket, plaintiff's vehicle collided with the rear of the subject backhoe. Inasmuch as the subject accident was captured on video, there was no need to consider the opinion of the accident reconstruction experts as to how the accident occurred.

The defendants seek dismissal of the complaint on the basis that the plaintiff did not operate his vehicle a reasonably safe distance and speed behind the subject backhoe in violation of Vehicle and Traffic Law § 1129 [a].

A driver of a vehicle approaching another vehicle from the rear is required to maintain a reasonably safe distance and rate of speed under the prevailing conditions to avoid colliding with the other vehicle (Bloechle v Heritage Catering, Ltd., 172 AD3d 1294, 1295 [2nd Dept 2019], citing, Nsiad—Ababio v Hunter, 78 AD3d 672, 672 [2nd Dept 2010]; see Vehicle and Traffic Law § 1129 [a]). A rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the operator of the rear vehicle, requiring that operator to rebut the inference of negligence by providing a non-negligent explanation for the collision (Bloechle, 172 AD3d at 1295, citing Tutrani v. County of Suffolk, 10 NY3d 906, 908 [2008]).

There can be more than one proximate cause of an accident (Martinez v Allen, 163 AD3d 951 [2nd Dept 2018] citing Cox v Nunez, 23 AD3d 427 [2nd Dept 2005], and a defendant moving for summary judgment in a negligence action has the burden of establishing, prima facie, that he or she was not at fault in the happening of the subject accident (Martinez, 163 AD3d 951 citing Suris v Citiwide Auto Leasing, Inc., 145 AD3d 817 [2nd Dept 2016]). Not every rear-end collision is the exclusive fault of the rearmost driver. The frontmost driver also has the duty not to stop suddenly or slow down without proper signaling so as to avoid a collision (Martinez, 163 AD3d 951 citing Tutrani, 64 AD3d at 59—60).

The video showed that two Harris Water dump trucks were at the scene of the subject accident, one in the parking lane and one double parked and ahead of the dump truck. The double parked dump truck was situated such that it completely blocked the travel lane adjacent to the parking lane. Smith moved the subject backhoe from the parking lane nearly diagonally across the three travel lanes without waiting for moving traffic to stop. He then made it to the far left lane. Within seconds of entering the eastern most lane of travel, he was struck in the rear by Jacques's vehicle. During the few seconds Smith simultaneously raised the bucket of the subject backhoe and slowed his vehicle.

The conduct of Harris Water must be looked at through the concerted acts of its employees. Harris Water, through its employees, effectively narrowed the travel lanes of [*4]Atlantic Avenue in front of its office by blocking a travel lane with a double parked dump truck. Vehicle and Traffic Law § 1202 (1) (a) provides that no person shall, except when necessary to avoid conflict with other traffic, or when in compliance with law or the directions of a police officer or official traffic-control device, stop, stand or park a vehicle on the roadway side of any vehicle stopped, standing or parked at the edge or curb of a street. By double parking the dump truck Harris Water violated Vehicle and Traffic Law § 1202 [1] [a] (see Ferguson v Gassman, 229 AD2d 464 [2nd Dept 1996]). Furthermore, the issue of whether the defendants' through the acts of its employees was negligent in double-parking a dump truck, and, if so, whether the negligence was a proximate cause of the accident should be submitted to the jury (In re Yavkina, 60 AD3d 669, 669—70 [2nd Dept 2009]).

Vehicle and Traffic Law § 1128 (a) provides as follows:

Whenever any roadway has been divided into two or more clearly marked lanes for traffic the following rules in addition to all others consistent herewith shall apply:

(a) A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.

The aforementioned video shows Smith maneuvering the subject backhoe from the parking lane to the far left lane for moving traffic by going nearly diagonally across three lanes of moving traffic. Smith did not wait for the moving traffic to stop before traversing across the moving lanes. He also traversed from the parking lane to the far left lane in one continuous motion without any visible lights telegraphing to other vehicles his intent to switch lanes. Smith's operation of the subject backhoe raises material issues of fact as to whether he violated Vehicle and Traffic Law § 1128 (a) by making unsafe lane changes. For all the foregoing reasons, the defendants have failed to establish, prima facie, that they were free from fault in the happening of the accident, or that the alleged negligence of the plaintiff was the sole proximate cause of the accident. Since the defendants failed to sustain their prima facie burden, we need not consider the sufficiency of the plaintiff's opposition papers (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).

The motion of defendants Harris Water Main & Sewer Contractors, Inc. and Daniel L. Smith for an order pursuant to CPLR 3212 granting summary judgment in their favor on liability and dismissing the complaint is denied.

The foregoing constitutes the decision and order of this Court.