Ashley Thrash, Plaintiff, v. ESQ RUY BARBOSA SENZALA SERVICES LLC (2026)

Plaintiff Ashley Thrash moves (mot. seq. 4) for summary judgment against Defendants Anthony J. Vignier, Esq., as Administrator ad Litem to the Estate of Ruy S. Barbosa (hereinafter, "Decedent-Driver") and Senzala Services LLC on the issue of liability pursuant to CPLR § 3212(b), to dismiss Defendants' affirmative defenses alleging comparative negligence, contributory negligence, and culpable conduct of Plaintiff, and to set the matter down for a trial as to damages. Defendants oppose the motion (NYSCEF Doc. 92). Reply has been submitted.

Based on the papers before the Court, and upon due deliberation, Plaintiff's motion is hereby granted.

This action arises out of a motor vehicle accident that took place on October 1, 2019, when a motor vehicle operated by Decedent-Driver Ruy S. Barbosa and owned by Defendant Senzala Services LLC, came into contact with a motor vehicle operated by Plaintiff Ashley Thrash near the intersection of Broadway and Prince Street.

Decedent-Driver Ruy S. Barbosa passed away on March 9, 2021 (Exhibit C, NYSCEF Doc. 78). Plaintiff commenced this action by the filing of a Summons and Verified Complaint on September 15, 2022. Issue was joined by Defendants on February 10, 2023 (Exhibit A, NYSCEF Doc. 76). On June 29, 2023, Plaintiff served her Verified Bill of Particulars upon Defendants (Exhibit B, NYSCEF Doc. 77).

On November 25, 2024, this Court issued an order staying the action pending the appointment of a representative for the Estate of Decedent-Driver Ruy S. Barbosa (Exhibit D, NYSCEF Doc. 79). On March 3, 2025, the Superior Court of New Jersey, Chancery Division, Probate Part, Hudson County issued an order appointing Anthony J. Vignier, Esq. as Administrator ad Litem to the Estate of Ruy S. Barbosa (Exhibit E, NYSCEF Doc. 80). Thereafter, on July 17, 2025, this Court issued an order amending the caption in this action to reflect the appointment of an Administrator ad Litem (Exhibit F, NYSCEF Doc. 81).

Plaintiff alleges that at the time of the collision, she was travelling southbound on Broadway in her vehicle when she began to make a right turn onto Prince Street. While turning, Plaintiff was required to stop her vehicle at the intersection to allow pedestrian traffic to clear before completing the turn. Plaintiff further alleges that while she was stopped and waiting to complete the turn, a vehicle owned by Defendant Senzala Services LLC and operated by Decedent-Driver Ruy S. Barbosa, travelling southbound on Broadway, struck Plaintiff's stopped vehicle in the rear.

As the Decedent-Driver passed away prior to the commencement of this action, the Answer lacks facts alleged with specificity as to their lack of culpability. Likewise, Decedent-Driver's opposition to the instant motion fails to provide factual allegations to rebut Plaintiff's claims.

Pursuant to CPLR § 3212, a motion for summary judgment shall be granted if the cause of action or defense is established sufficiently to warrant the court, as a matter of law, in directing judgment in favor of any party (see CPLR § 3212[b]; see also Rodriguez v. City of New York, 31 NY3d 312 [2018]). The motion for summary judgment must also show that there is no defense to the cause of action (id.). The party moving for summary judgment must make a prima facie showing entitlement to summary judgment as a matter of law by offering admissible evidence demonstrating the absence of any material issues of fact (CPLR § 3212 [bl; Jacobsen v. New York City Health and Hosps. Corp., 22 NY3d 824 [2014]; Brill v. City of New York, 2 NY3d 648 [2004]). In deciding such a motion, the court does not make credibility determinations or findings of fact. Its function is to identify issues of fact, not to decide them (see Vega v. Restani Constr. Corp., 18 NY3d 499, 505 [2012]). Once a prima facie showing has been made, the burden shifts to the non-moving party to demonstrate the existence of material issues of fact requiring a trial (see Zuckerman v. City of New York, 49 NY2d 557 [1980]).

A rear end collision with a stopped vehicle creates a prima facie case of negligence against the operator of the moving vehicle, thereby requiring that operator to rebut the inference of negligence by providing a non-negligent explanation for the collision (see Martorell v. Marcus, 106 AD3d 883 [2d Dept 2013]; see also Hauser v. Adamov, 74 AD3d 1024 [2d Dept 2010]). If the operator of the moving vehicle fails to come forward with any evidence to rebut the inference of negligence created by the rear-end collision with the stopped vehicle, the plaintiff may properly be awarded judgment as a matter of law on the issue of liability (see Lopez v. Minot, 258 AD2d 564 [2d Dept 1999]). Additionally, when the driver of an automobile approaches another automobile from the rear, that driver is obligated to maintain a reasonably safe distance and rate of speed under the prevailing conditions to avoid colliding with the other vehicle (see Newfeld v Midwood Ambulance & Oxygen Serv., Inc., 204 AD3d 813 [2d Dept 2022]; see also Sayyed v. Murray, 109 AD3d 464 [2d Dept 2013]). Notably, a plaintiff is not required to demonstrate freedom from comparative negligence to establish prima facie entitlement to summary judgment (see Rodriguez v. City of New York, 31 NY3d 312 [2018]; see also Merino v. Tessel, 2018 NY Slip Op. 07717 [2d Dept 2018]). "Nevertheless, a plaintiff moving for summary judgment dismissing a defendant's affirmative defense of comparative negligence may seek to establish freedom from comparative fault as a matter of law" (Newfeld v Midwood Ambulance & Oxygen Serv., Inc., 204 AD3d 813, 813-14 [2d Dept 2022]).

The Appellate Division, Second Department has held that the death of a party in an action divests the court of jurisdiction and stays the proceedings until a proper substitution has been made, and any decision prior to substitution will generally be deemed a nullity (see CPLR § 1015(a); see also Vicari v Kleinwaks, 157 AD3d 975 [2d Dept 2018]). While it is truly unfortunate that Decedent-Driver passed away (due to unrelated causes after the accident and prior to the action being commenced), there is no legal bar to prevent the Court from considering the present motion for summary judgement. As an administrator has been duly appointed and substituted as a party, this motion is appropriately before the Court.

Plaintiff has demonstrated a prima facie entitlement to summary judgment through the submission of the pleadings, bill of particulars, sworn deposition testimony and relevant exhibits, establishing that Decedent-Driver was negligent in striking the rear of Plaintiff's vehicle while it was at a complete stop.

An issue of apparent first impression before this Court is whether the death of a defendant bears upon a plaintiff's entitlement to summary judgment and the evidentiary burden imposed upon the party opposing such relief. Defendants argue that the only individual with knowledge of the accident from Decedent-Driver Barbosa's perspective is deceased and that, as a result, Plaintiff's motion should not be determined at this stage. In the absence of authority directly addressing this precise question, cases involving wrongful death and related negligence actions in which the death of a party has affected the available proof have provided guidance. In such cases, courts have permitted a limited relaxation of the evidentiary burden in wrongful death and related negligence actions. This does not, however, dispense with the requirement that liability be established through competent proof. For example, in Roth v Zelig, the Appellate Division, Second Department, held that evidence submitted by the plaintiff-decedent's personal representative, asserting that the defendant driver lost control of the vehicle before colliding with parked cars, was insufficient to warrant summary judgment, notwithstanding the reduced burden recognized in wrongful death actions (see Roth v Zelig (64 AD3d 558, 559 [2d Dept 2009]). The court's holding in Roth illustrates that even where a party's death limits the available testimony, a litigant must still present evidence from which negligence may reasonably be inferred (id.).

While these authorities arise in the context of wrongful death actions rather than the death of a defendant, they reflect a consistent principle: the unavailability of testimony due to a party's death does not, standing alone, create a presumption in favor of the deceased party nor alter the fundamental burdens governing summary judgment. Indeed, procedural safeguards exist to address potential prejudice arising from such circumstances. The death of a party divests the court of jurisdiction until a proper substitution is made, and any determination rendered prior to substitution is generally deemed a nullity (see CPLR § 1015[a]; Vicari v. Kleinwaks, 157 AD3d 975 [2d Dept 2018]). Once substitution has occurred, however, the matter may proceed in the ordinary course. Additionally, CPLR § 3212(f) permits denial of a summary judgment motion where the opposing party demonstrates that essential facts may exist but cannot yet be stated, including circumstances where further discovery may yield relevant evidence (see CPLR § 3212[f]; see also Knowles v. 21-43 27th St., LLC, 224 AD3d 737 [2d Dept 2024]).

Thus, while courts have recognized a narrow relaxation of the evidentiary burden in certain wrongful death actions, existing precedent does not support the proposition that the standard for opposing summary judgment is diminished merely because the defendant is deceased. Rather, the ordinary rules governing proof, inference, and the allocation of burdens continue to apply, subject to the trial court's discretion to address demonstrable evidentiary gaps through established procedural mechanisms.

Applying these principles to the present case, the Court finds that Defendants have failed to raise a triable issue of fact sufficient to defeat Plaintiff's motion. Plaintiff has established a prima facie entitlement to summary judgment by demonstrating that Decedent-Driver Barbosa's vehicle struck Plaintiff's vehicle in the rear while it was stopped. As set forth above, such evidence gives rise to an inference of negligence which the operator of the moving vehicle must rebut with a non-negligent explanation.

In opposition, Defendants do not offer testimony, admissible evidence, or any non-negligent explanation for the happening of the collision. Instead, Defendants contend that the only individual who could provide testimony concerning the accident from Decedent-Driver Barbosa's perspective is deceased. Notwithstanding the foregoing, the mere absence of testimony from a deceased party, without more, is insufficient to defeat an otherwise properly supported motion for summary judgment. Nor have Defendants demonstrated that facts essential to justify opposition may exist but cannot presently be stated, as would warrant denial of the motion pursuant to CPLR § 3212(f). The record before the Court contains no indication that additional witnesses or further discovery would yield relevant evidence bearing upon liability, and Defendants have not identified with specificity any facts that might be revealed through such discovery.

Decedent-Driver Barbosa's death does not, therefore, alter the applicable legal standards governing this motion and does not, in and of itself, create a triable issue of fact. As Defendants have failed to rebut Plaintiff's prima facie showing of negligence, Plaintiff's motion for summary judgment on liability pursuant to CPLR § 3212 is hereby granted. Defendants' affirmative defenses alleging comparative negligence, contributory negligence, and culpable conduct of Plaintiff are stricken, and the issue of damages is reserved for trial.

This hereby constitutes the Decision and Order of the Court.

Dated: April 22, 2026

E N T E R:

Hon. Kerry J. Ward, A.J.S.C.

Kerry J. Ward, J.