Draughn v Lurentzatos

Supreme Court, Westchester County

Decided on April 8, 2026

Index No. 64666/2025

William J. Giacomo, J.

In an action to recover damages for personal injuries, in motion sequence 001, plaintiff Fatia Draughn moves, pursuant to CPLR 3212, for partial summary judgment on the issue of liability and also moves to strike defendant Elias Lurentzatos's third, eighth, ninth and tenth affirmative defenses. In motion sequence 002, defendant cross-moves, pursuant to CPLR 3212, for summary judgment dismissing plaintiff's complaint. Motion sequence numbers 001 and 002 are hereby consolidated for disposition.

Papers Considered NYSCEF DOC NO. 17-28

1. Notice of Motion/Statement of Material Facts/Affirmation of Elizabeth M. Pendzick, Esq./Exhibits A-B

2. Notice of Cross Motion/ Affirmation of Jeffrey Domoto, Esq. in Support/Opposition/Defendant's Affidavit

3. Affirmation of Elizabeth M. Pendzick, Esq. in Opposition/Support/Exhibit A

4. Affirmation of Jeffrey Domoto, Esq. in Reply

FACTUAL AND RELEVANT PROCEDURAL BACKGROUND

Plaintiff is seeking to recover for personal injuries sustained as a result of a multi-car [*2]motor vehicle accident that occurred in the early evening on July 13, 2023 on Hamilton Avenue near the intersection of North Lexington Avenue, in White Plains, New York. Plaintiff commenced this action by filing a summons and complaint on June 5, 2025. In the complaint, plaintiff alleged that while she was lawfully operating a motor vehicle, defendant's motor vehicle came into violent contact with the vehicle behind the vehicle operated by plaintiff, forcing said vehicle to violently strike the vehicle operated by the plaintiff.

There were five cars at the collision site, with the defendant's car at the back of the collision line (vehicle one). Vehicle two was operated by nonparty Michael Cangelosi. Plaintiff was operating vehicle three and vehicles four and five were also operated by nonparties. The certified police report states the following, in relevant part:

"Driver of VI stated he V1 was traveling W. on Hamilton Av. when D1 attempted to press the brake but the V1 did not brake. V1 then drove into the back of V2 pushing it forward into V3. . . .V2 sustained damage to the entire rear as well as the entire front. . . Driver of V3 stated V2 hit V3 from behind pushing V3 into V4. V3 sustained damages to the entire rear and front of V3."

The complaint alleges that the collision was solely due to defendant's negligence and that plaintiff sustained serious injuries as a result. Defendant joined issue with the service and filing of his answer on August 15, 2025. The third affirmative defense alleges contributory negligence on the part of the plaintiff. The eighth affirmative defense alleges that the action is barred due to the statute of limitations. The ninth affirmative defense asserts a failure to state a cause of action. The tenth affirmative defense alleges that defendant was confronted with an emergency situation.

Plaintiff now moves for summary judgment on the issue of liability. In support of the motion, plaintiff submits the certified police accident report and her own affirmation. In relevant part, plaintiff affirmed the following:

"On July 13, 2023, at about 5:30 p.m., I was the operator of a car which was stopped at a red traffic light on Hamilton Avenue in White Plains, New York. There was at least one car in front of me which was also stopped at the traffic light. I was stopped for at least three seconds when I was rear-ended by another vehicle, and pushed into the vehicle in front of mine. After the incident, I exited my car and saw that there were two vehicles behind mine, and two vehicles in front of mine, that had been involved in the accident."

In light of plaintiff's affirmation and the certified police report, plaintiff argues that she should be entitled to partial summary judgment on the issue of liability, given her affirmation and the defendant's statements made to the police officer, which constitutes an admission against interest. Here, defendant stated to the police officer that he attempted to brake the car but that it would not brake, and that caused him to hit vehicle two, which then pushed forward into plaintiff's car. Further, plaintiff affirmed that she had been at a complete stop at a light when she was struck in the rear. As a result, plaintiff argues that she has established a prima facie case of negligence by demonstrating that she was at a complete stop when she was struck in the rear. Further, defendant, as the alleged instigator of the chain collision, failed to rebut plaintiff's showing.

Plaintiff addresses the affirmative defenses and provides arguments for why they should be stricken. For instance, she argues that she cannot be found comparatively negligent for the accident, as she was completely stopped at a red light when the accident occurred. Further, stopping at a red light does not constitute an emergency situation. In addition, the statute of [*3]limitations did not run until July 13, 2026, which is after the action was commenced. Lastly, plaintiff claims that she sufficiently stated a cause of action, as she alleged a breach of duty of care.

In opposition to plaintiff's motion and in support of his own motion, defendant argues that the complaint should be dismissed, as his affidavit demonstrates that he bears no liability for the accident in which plaintiff claims to be injured. Defendant affirms that he completely disagrees with the accident description as transcribed by the police officer. According to defendant, he was involved in an accident on Hamilton Avenue and made contact with vehicle two. However, prior to his accident, he "saw an accident occur between the 4 vehicles ahead of me." Defendant saw vehicle five come to a complete stop and then get rear ended by vehicle four, which was then rear ended by plaintiff's car. He continues that after he "saw the 4 vehicles ahead of me involved in an accident," he came into contact with the rear of vehicle two. However, vehicle two was "never pushed forward into the plaintiff's car after [he] struck the rear." Defendant's contact with vehicle two "never caused any further contact between the cars ahead of me."

Defendant does not address whether vehicle two came into contact with plaintiff's car. His counsel surmises that, if anything, it was the nonparty in vehicle two that was operating his vehicle too closely to plaintiff's and struck plaintiff's rear. Further, although the damage to the rear of plaintiff's vehicle was caused by vehicle two, defendant bears no responsibility for this, as his impact did not cause vehicle two to move forward. Defendant also does not address the discrepancy between what he allegedly advised the police officer about not being able to brake, striking vehicle two which pushed forward into plaintiff's car, and his current version that the multi car collision took place prior to his coming into contact with vehicle two and that his contact with vehicle two did not cause vehicle two to move forward into plaintiff's vehicle.

According to defendant, plaintiff's affidavit only states that she was stopped when struck in the rear. It did not state that defendant's vehicle rear ended vehicle two, forcing vehicle two into the rear of the plaintiff's car. Further, the police report, which is allegedly hearsay and inadmissible, is the only suggestion that defendant's car pushed forward into vehicle two which then hit plaintiff's car as a result. As a result, defendant argues that the complaint should be dismissed, as there is no evidence that defendant instigated the chain collision. Defendant does not oppose any of plaintiff's arguments related to striking his affirmative defenses.

In reply, in pertinent part, plaintiff clarifies in her affirmation that she was stopped at the red light and had not struck the vehicle in front of her prior to being rear ended, which caused her vehicle to be pushed into the one in front.

DISCUSSION

Summary Judgment

"The proponent of a motion for summary judgment must demonstrate that there are no material issues of fact in dispute, and that it is entitled to judgment as a matter of law." Dallas-Stephenson v Waisman, 39 AD3d 303, 306 (1st Dept 2007). The movant's burden is "heavy," and "on a motion for summary judgment, facts must be viewed in the light most favorable to the non-moving party." William J. Jenack Estate Appraisers & Auctioneers, Inc. v Rabizadeh, 22 NY3d 470, 475 (2013) (internal quotation marks and citation omitted). Upon proffer of evidence establishing a prima facie case by the movant, "the party opposing a motion for summary judgment bears the burden of produc[ing] evidentiary proof in admissible form sufficient to require a trial of material questions of fact." People v Grasso, 50 AD3d 535, 545 (1st Dept [*4]2008) (internal quotation marks and citation omitted). "A motion for summary judgment should not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility." Ruiz v Griffin, 71 AD3d 1112, 1115 (2d Dept 2010) (internal quotation marks and citation omitted).

"A plaintiff in a negligence action moving for summary judgment on the issue of liability must establish, prima facie, that the defendant breached a duty owed to the plaintiff and that the defendant's negligence was a proximate cause of the alleged injuries." Ahmed v Fernando, 22 AD3d 832, 832 (2d Dept 2022) (internal citations omitted). Further, "[t]o be entitled to partial summary judgment a plaintiff does not bear the . . . burden of establishing . . . the absence of his or her own comparative fault." Id.

"[W]hen 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, 585 (2d Dept 2004) (internal quotation marks and citation omitted). VTL § 1129 (a) also states that the "driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon and the condition of the highway."

It is well established that a "[a] rear-end collision is sufficient to create a prima facie case of liability and imposes a duty of explanation with respect to the operator of the offending vehicle." Macauley v ELRAC, Inc., 6 AD3d at 585 (internal quotation marks omitted); see also Lopez v Suggs, 186 AD3d 589, 589-590 (2d Dept 2020) ("A rear-end collision with a stopped or stopping vehicle creates a prima facie case of negligence with respect to the operator of the rearmost vehicle, requiring that operator to rebut the inference of negligence by providing a non-negligent explanation for the collision"). "A nonnegligent explanation may include evidence of a mechanical failure, a sudden stop of the vehicle ahead, an unavoidable skidding on wet pavement, or any other reasonable cause." Grant v Carrasco, 165 AD3d 631, 632 (2d Dept 2018) (internal quotation marks omitted).

Through plaintiff's affirmation and the certified police report, plaintiff has satisfied her prima facie burden for summary judgment on the issue of defendant's liability, by demonstrating that plaintiff's vehicle was stopped at a red light when it was struck in the rear by the vehicle behind her, which had been propelled into her by defendant's vehicle. Contrary to defendant's contention, the hearsay statement made by defendant that his brakes did not work and that he struck vehicle two, which then pushed forward into plaintiff's vehicle, as reported in the certified police report, "qualified as an exception to the hearsay rule since it was an admission against interest," and also supports plaintiff's prima facie claim. Vaden v Rose, 4 AD3d 468, 469 (2d Dept 2004); see also Yassin v Blackman, 188 AD3d 62 (2d Dept 2020).

However, the Court finds that defendant raised a triable issue of fact in opposition as to whether he was negligent in the happening of plaintiff's accident. Here, defendant affirms that he was not the one who instigated the multi car collision, and that it had occurred prior to when he came into contact with the vehicle behind plaintiff's. Although he contacted the rear of vehicle two, this did not cause vehicle two to be pushed forward into plaintiff's car. While plaintiff affirms that she saw two cars behind hers after the accident occurred, she did not actually see if defendant's impact caused vehicle two to push into her. There are no affidavits submitted by any other parties involved in the accident, nor is there any deposition or expert witness testimony provided. While the portions of the accident report that pertain to the parties [*5]are admissible, any statements from nonparties, are not.

It is well settled that, "[o]n a motion for summary judgment, the function of the court is not to determine issues of fact or credibility, but merely to determine the existence of such issues." Dykeman v Heht, 52 AD3d 767, 769 (2d Dept 2008). Accepting defendant's version of the accident as true, as the Court must on a motion for summary judgment, defendant has raised questions of fact as to whether his actions caused or contributed to the accident. Further, "given the conflicting versions of events, it is for the trier of fact to evaluate the credibility of the witnesses and determine what happened." Elusma v Jackson, 186 AD3d 1326, 1328 (2d Dept 2020).

Accordingly, the branch of plaintiff's motion seeking partial summary judgment on liability, is denied.

Defendant's Motion for Summary Judgment Dismissing the Complaint

"There can be more than one proximate cause of an accident, 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." Timmons v Logan Bus Co., Inc., 229 AD3d 734, 734 (2d Dept 2024) (internal quotation marks omitted).

Here, defendant has not established his prima facie entitlement to summary judgment, because his moving papers raise issues of fact as to whether he was at fault in the happening of the accident. Specifically, defendant admitted that he struck vehicle two, however this was allegedly after the multi car collision already occurred and his impact on vehicle two did not cause vehicle two to come into contact with plaintiff's vehicle. However defendant does not address the discrepancies with this version of the accident and the one he provided to the police officer, which, as discussed, is admissible hearsay. Nor does defendant explain how he witnessed a four car accident but only saw vehicle five stop and then get rear ended by vehicle four and then saw vehicle three (plaintiff) rear end vehicle four. His attorney surmises, only by affirmation, that vehicle two impacted plaintiff's rear, as vehicle two was negligent in following too closely and striking the rear of plaintiff's stopped vehicle. However, this affirmation lacks any probative weight as to the happening of the accident. See e.g. Becker v Elm Air Conditioning Corp., 143 AD2d 965, 966 (2d Dept 1988) ("The affirmation by the plaintiffs' attorney, who had no personal knowledge of the facts, and which was not accompanied by any other affidavits or evidentiary proof, was insufficient").

Accordingly, as "there are material issues of fact regarding the accident, it cannot be determined as a matter of law whether the defendant driver was not at fault for the accident." Elusma v Jackson, 186 AD3d at 1328. In light of the foregoing, the opposition need not be considered. Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 (1985).

Accordingly, defendant's motion for summary judgment dismissing the complaint is denied.

Both parties moved for summary judgment prior to any depositions and prior to the completion of discovery. Given that the deposition testimony of the other nonparty drivers, especially from vehicle two, may change the outcome of this action, the parties are granted leave to renew their motions after the completion of discovery.

Dismissal of Affirmative Defenses

As set forth in CPLR 3211 (b), "[a] party may move for judgment dismissing one or more defenses, on the ground that a defense is not stated or has no merit." "Although a plaintiff need not demonstrate the absence of his or her own comparative negligence to be entitled to [*6]partial summary judgment as to a defendant's liability, the issue of a plaintiff's comparative negligence may be decided in the context of a summary judgment motion where, as here, the plaintiff moved for summary judgment dismissing a defendant's affirmative defense of comparative negligence." Poon v Nisanov, 162 AD3d 804, 808 (2d Dept 2018) (internal citation omitted). "When moving to dismiss an affirmative defense, the plaintiff bears the burden of demonstrating that the affirmative defense is 'without merit as a matter of law.'" Bank of NY v Penalver, 125 AD3d 796, 797 (2d Dept 2015).

Defendant's answer broadly allege affirmative defenses including failure to state claim, plaintiff's culpable conduct/contributory negligence, barred by statute of limitations and confronted with an emergency situation. Here, in support of the motion for summary judgment on liability and for dismissal of the affirmative defenses grounded in failure to state a claim and culpable conduct/contributory negligence, plaintiff submitted her affirmation, as well as the certified police report, that plaintiff's vehicle was struck in the rear while it was stopped and that she was hit from behind and pushed into the vehicle in front of her. "Accordingly, the plaintiff demonstrated, prima facie, that she was not at fault in the happening of the accident." Poon v Nisanov, 162 AD3d at 808. In opposition, defendant failed to raise a question of fact with respect to plaintiff's comparative negligence and failure to state a cause of action, as he failed to submit any evidence to support these affirmative defenses. Plaintiff has also established that the action was timely commenced.

Finally, the tenth affirmative defense alleges that defendant was confronted by an emergency situation. "The common-law emergency doctrine recognizes that when an actor is faced with a sudden and unexpected circumstance which leaves little or no time for thought, deliberation or consideration, or causes the actor to be reasonably so disturbed that the actor must make a speedy decision without weighing alternative courses of conduct, the actor may not be negligent if the actions taken are reasonable and prudent in the emergency context, provided the actor has not created the emergency." Kenney v County of Nassau, 93 AD3d 694, 696 (2d Dept 2012) (internal quotation marks omitted). Here, defendant failed to respond to plaintiff's arguments and thus failed to demonstrate how the Emergency Doctrine is applicable.

Accordingly, the branch of plaintiff's motion seeking to strike defendant's third, eighth, ninth and tenth affirmative defenses, is granted.

CONCLUSION

Accordingly, it is hereby

ORDERED that plaintiff's motion for partial summary judgment on the issue of liability against defendant pursuant to CPLR 3212 and to strike the third, eighth, ninth and tenth affirmative defenses, is granted only to the extent that the instant affirmative defenses are stricken, and the motion is otherwise denied with leave to renew upon the completion of discovery (motion sequence 001); and it is further

ORDERED that defendant's motion for summary judgment dismissing the complaint is denied with leave to renew upon the completion of discovery (motion sequence 002).

The Clerk is directed to enter judgment accordingly.

The parties are reminded of their upcoming Trial Readiness Conference with the Court, in-person, on May 18, 2026 at 10:00 a.m., to Certify.

Dated: April 8, 2026

White Plains, New York

HON. WILLIAM J. GIACOMO, J.S.C.