This is a personal injury action arising out of a motor vehicle accident. Plaintiff moved for partial summary judgment on the issue of liability against defendants. In essence, Plaintiff claims defendants' vehicle rear-ended plaintiff's vehicle, establishing liability as a matter of law. Not quite!

The motor vehicle accident occurred on December 2, 2022. Plaintiff claims she was operating a 2010 Mercedes Benz along Fuller Road, and described the accident as follows:

6. At approximately 01:32 p.m. on December 2nd, 2022, I was struck in the rear by a car owned by Defendant The Hungry Traveler LLC and operated by Defendant Sarah C. Acker who was operating a 1997 Chevrolet motor vehicle.

7. I did not see Defendants' car approaching before it struck the rear of my car. The front [*2]of defendants' vehicle struck the rear of my car.

8. At the time of the accident, the herein intersection was took place was a straight and level road, and there was nothing obstructing any portion of the view at that intersection.

9. I did nothing to contribute to this accident as I was in no way responsible for the operation of the Defendants, The Hungry Traveler LLC and Sarah C. Acker motor vehicle and I did not participate in any actions which led to the accident.^[FN1](Emphasis added)

Really! The Court notes that Plaintiff did not indicate her vehicle was in a stopped position at the time of impact, nor did she identify the speed that she was traveling at or respond to the findings in the police accident report.

The Police accident Report (MV-104A) provided the following accident description:

"V1 (Defendant) could not stop in time when V2 (Plaintiff) abruptly changed lanes in front of her and then V2 came almost to a stop for an uninvolved vehicle turning left into the gas station."^[FN2](Emphasis added)

Seems like there is a question of fact as to whether plaintiff's actions caused the accident, as well as whether defendant was negligent in the first place.

In Zuckerman v. New York, 49 NY2d 557, 562 [1980], where the Court held,

"To obtain summary judgment it is necessary that the movant establish his cause of action or defense 'sufficiently to warrant the court as a matter of law in directing judgment' in his favor ( CPLR 3212, subd [b]), and he must do so by tender of evidentiary proof in admissible form. On the other hand, to defeat a motion for summary judgment the opposing party must 'show facts sufficient to require a trial of any issue of fact' (CPLR 3212, subd [b]). Normally if the opponent is to succeed in defeating a summary judgment motion, he, too, must make his showing by producing evidentiary proof in admissible form. The rule with respect to defeating a motion for summary judgment, however, is more flexible, for the opposing party, as contrasted with the movant, may be permitted to demonstrate acceptable excuse for his failure to meet the strict requirement of tender in admissible form." (internal quotations and citations omitted)."

Recognizing that summary judgment is a "drastic remedy" the "facts must be viewed in the light most favorable to the non-moving party (see Vega v Restani Constr. Corp., 18 NY3d 499, 503 [2012]) (emphasis added). The Court's function is "not to determine credibility, but whether there exists a factual issue, or if arguably there is a genuine issue of fact" (see S. J. Capelin Associates, Inc. v. Globe Mfg. Corp., 34 NY2d 338, 341 [1974]); see also Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957] where the Court held, "issue-finding, rather than issue-determination, is the key to the procedure" (emphasis added).

This Court is mindful that a rear-end collision with a stopped or stopping vehicle can constitute a prima facie case of negligence (See Altman v Shaw, 184 AD3d 995, 999 [3d Dept. [*3]2020]; Cheow v Cheng Lin Jin, 121 AD3d 1058 [2d Dept. 2014]). Since the record evidence consists of an alleged abrupt lane change prior to impact, and whether plaintiff's car had come to a complete stop prior to impact is yet undetermined, further inquiry must be made.

At issue is whether Plaintiff's Lane change was made in violation of V & T section 1128 (a), which provides:

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. (Emphasis added)

On a motion for partial summary judgment on liability, Plaintiff has no burden of proof to establish the lack of comparative negligence (see Rodriguez v City of New York, 31 NY3d 312 [2018]; Lowes v. Anas, 2021 NY App. Div. LEXIS 4068 [4th Dept. 2021]; Simmons v. Bergh, 2021 NY App. Div. LEXIS 1663 [1st Dept. 2021]). That does not, however, end the inquiry. Frankly, the timing of the lane change and stopping is relevant to whether defendant was afforded a reasoned opportunity to avoid the impact, all as more fully set forth below.

In Harvey v White, 169 AD3d 884 [2d Dept. 2019], the Court granted summary judgment on liability and dismissed the affirmative defense of comparative negligence, finding the following facts, to wit:

" . . . the plaintiff's vehicle had turned into the left eastbound lane of West Merrick Road from an intersecting street and had traveled straight in the left eastbound lane of West Merrick Road for more than five seconds, and traveled approximately 40 to 50 feet, when the accident occurred. The defendants' vehicle was exiting the driveway of a diner that abutted the eastbound lanes of traffic. The front of the defendants' vehicle struck the right rear door and wheel of the plaintiff's vehicle." (emphasis added)

"The plaintiff established his prima facie entitlement to judgment as a matter of law by demonstrating that the defendant driver negligently entered the roadway from a driveway without yielding the right-of-way, and that such negligence was the sole proximate cause of the accident. In opposition, the defendants failed to raise a triable issue of fact." (id at 885) (emphasis added)

In consideration of the abrupt lane change, this Court is not able to find Defendant's failure to avoid striking the rear of plaintiff's vehicle was the sole proximate cause of the accident as a matter of law.

The record is yet to be developed to establish a time frame for the sequence of events leading to impact. The circumstances and timing of the alleged abrupt lane change as well as the stopping action of plaintiff's vehicle following the lane change need to be established. This begs the question of whether there was a reasonable period for defendant to take evasive action to avoid striking the rear of plaintiff's vehicle in the first instance.

The timing of events is thus relevant to making the negligence determination. Frankly, if there is insufficient time to take evasive action, a jury could find that the defendant was not negligent, period. For example, in Adobea v Junel, 114 AD3d 818, 820 [2d Dept. 2014] the Court held,

"[A] driver with the right-of-way who has only seconds to react to a vehicle that has [*4]failed to yield is not comparatively negligent for failing to avoid the collision." (Emphasis added)

"Although a driver with a right-of-way also has a duty to use reasonable care to avoid a collision, it has been recognized that a driver with the right-of-way who has only seconds to react to a vehicle which has failed to yield is not comparatively negligent for failing to avoid the collision." (Emphasis added)

"defendants' expert concluded that after an allowance of 1 to 1.5 seconds for reaction time, Harmon had less than one second to avoid the accident. Supreme Court correctly calculated that plaintiff's expert would increase this time to only 1.1 to 1.6 seconds. Such short periods of time are insufficient for a defendant to take any significant evasive action.") (Emphasis added)

" . . . there are issues of fact whether defendant was negligent—i.e., whether he saw what was there to be seen and had enough time to take evasive action to avoid the collision." (Emphasis added)

For the reasons more fully stated above, Plaintiff's motion for partial summary judgment on the issue of liability is Denied.

This memorandum constitutes the decision and order of the Court.^[FN3]