TESORIERO v. CHEN (2018)

The following papers numbered 1 to 20 read on this motion by defendant CRISTIAN BATISTA s/h/a CHRISTIAN BATISTA for an Order granting defendant CRISTIAN BATISTA s/h/a CHRISTIAN BATISTA summary judgment pursuant to CPLR 3212, dismissing any and all claims against him; and on this cross-motion by plaintiff GRACE C. TESORIERO for an Order pursuant to CPLR 3212, granting summary judgment in favor of plaintiff on the issue of liability against defendant Kendall Chen:

Papers

Numbered

Notice of Motion—Affirmation—Memo. of Law—Exhibits 1–5 Chen's Affirmation in Opposition—Exhibits 6–8

Reply Affirmation—Exhibit 9–11

Notice of Cross–Motion—Affirmation—Exhibits 12–15

Chen's Affirmation in Opposition 16–17

Batista's Affirmation in Response 18–19

Stipulation dated February 2, 2018 20

In this negligence action, plaintiff seeks to recover damages for personal injuries allegedly sustained as a result of a three-car accident that occurred on September 26, 2015 on the Brooklyn–Queens Expressway at or near the Grand Central Parkway in Queens County, New York.

Plaintiff commenced this action by filing a summons and verified complaint on November 27, 2015. Defendant Chen joined issue by service of a verified answer dated February 29, 2016. Defendant Batista joined issue by service of a verified answer dated January 25, 2016. Batista now moves for summary judgment, dismissing all claims against him on the grounds that he was not negligent, is not liable, and did not breach any duty owed. Plaintiff cross-moves for summary judgment on the issue of liability against Chen on the grounds that Chen is solely and proximately liable for the subject accident.

Initially, this Court notes that plaintiff's cross-motion for summary judgment is untimely as it was not made within 120 days of the filing of the note of issue (see CPLR 3212; Brill v. City of New York, 2 NY3d 648 [2004] ). However, as the cross-motion is made on nearly identical grounds as the timely motion made by Batista, the cross-motion will be considered (see Ellman v. Village of Rhinebeck, 41 AD3d 635 [2d Dept. 2007]; Grande v. Peteroy, 39 AD3d 590 [2d Dept. 2007] ).

Plaintiff appeared for an examination before trial on January 20, 2017. She testified that three vehicles were involved in the subject accident. The accident occurred in the left lane of the Brooklyn Queens Expressway (BQE). Prior to the impact to the rear of her vehicle, she heard a loud bang behind her. The next impact she heard was to the rear of her own vehicle. There was one impact to the rear of her vehicle.

Defendant Batista appeared for an examination before trial on January 20, 2017. He testified that the subject accident occurred in the left lane of the BQE. The first impact was to the rear of his vehicle. As a result of the impact to his rear, his vehicle was propelled forward into the vehicle directly ahead of him. Right before he was rear ended, approximately 15 to 20 feet separated his vehicle from the vehicle of him.

Defendant Chen appeared for an examination before trial on January 20, 2017. He testified that the accident occurred in the left lane. There were three vehicles involved in the accident. The front portion of his car impacted the rear of the vehicle in front of him. He did not hear anything after his vehicle impacted the vehicle in front of him.

Based on the testimony, Batista and plaintiff contend that the accident was caused solely by Chen's negligence in that Chen was traveling too closely to the vehicle in front in him and was unable to safely bring his vehicle to a stop prior to rear-ending the vehicle in front violation of VTL § 1129. Therefore, Batista and plaintiff argue that they are entitled to summary judgment because Chen was solely responsible for causing the accident while they were free from culpable conduct.

In opposition, in addition to the parties' testimony, defendant Chen submits a copy of the Police Accident Report (MV–104AN). The responding officer noted, in relevant part:

Veh No.1 (plaintiff) & 2 (Batista) were traveling E/B on BQE in the left lane. Veh # 3 (Chen) traveling in the same direction in the right lane, change lanes unsafely colliding w/ rear of veh # 2. Consequently Veh # 2 struck Veh # 1.

First, Chen's counsel argues that Batista's transcript is unsigned and thus, should not be considered. However, the transcript is certified and therefore, is admissible for the purpose of this motion (see Rodriguez v. Ryder Truck Inc., 91 AD3d 935 [2d Dept. 2012] ). Counsel for Chen also argues that issues of fact preclude summary judgment including, inter alia, the sequence of the impacts, whether the vehicles were merging at the time of the accident, and whether Batista and/or plaintiff were comparatively at fault for the happening of the accident.

The proponent of a summary judgment motion must tender evidentiary proof in admissible form eliminating any material issues of fact from the case. If the proponent succeeds, the burden shifts to the party opposing the motion, who then must show the existence of material issues of fact by producing evidentiary proof in admissible form in support of his or her position (see Zuckerman v. City of New York, 49 NY2d 557[1980] ). “A court deciding a motion for summary judgment is required to view the evidence presented in the light most favorable to the party opposing the motion and to draw every reasonable inference from the pleadings and proof submitted by the parties in favor of the opponent to the motion” (Myers v. Fir Cab Corp., 64 NY2d 806 [1985] ).

“When 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 [2d Dept. 2003] ). It is well established law that a rear-end collision with a stopped or stopping vehicle creates a prima facie case of negligence on the part of the driver of the rearmost vehicle, requiring the operator of that vehicle to proffer an adequate, non-negligent explanation for the accident (see Klopchin v. Masri, 45 AD3d 737 [2d Dept. 2007]; Hakakian v. McCabe, 38 AD3d 493 2d Dept. 2007]; Reed v. New York City Transit Auth., 299 AD2 330 [2d Dept. 2002]; Velazquez v. Denton Limo, Inc., 7 AD3d787 [2d Dept. 2004]. “The rearmost driver in a chain-reaction collision bears a presumption of responsibility” (Ferguson v. Honda Lease Trust, 34 AD3d 356 [1st Dept. 2006], quoting De La Cruz v. Ock Wee Leong, 16 AD3d 199 [1st Dept. 2005] ). In multiple-car, chain-reaction accidents, the courts have recognized that the operator of a vehicle that is propelled into the vehicle in front of it, as a result of being struck from behind, is not negligent inasmuch as the operator's actions cannot be said to be the proximate cause of the injuries resulting from the collision (see Mohamed v. Town of Niskayuna, 267 AD2d 909 [3d Dept. 1999] ).

Here, sufficient evidence has been submitted to demonstrate that Chen's vehicle struck Batista's vehicle in the rear, propelling Batista's vehicle into the rear of plaintiff's vehicle. Thus, Batista and plaintiff satisfied their prima facie burden of establishing their entitlement to judgment as a matter of law on the issue of liability by demonstrating that their vehicles were struck in the rear (see Volpe v. Limoncelli, 74 AD3d 795 [2d Dept. 2010]; Vavoulis v. Adler, 43 AD3D 1154 [2d Dept. 2007]; Levine v. Taylor, 268 AD2d 566 [2d Dept. 2000] ).

Having made the requisite prima facie showing of entitlement to summary judgment, the burden then shifted to the non-moving party to raise a triable issue of fact as to whether movant was also negligent, and if so, whether that negligence contributed to the happening of the accident (see Goemans v. County of Suffolk, 57 AD3d 478 [2d Dept. 2007] ). Chen's testimony fails to provide evidence of a non-negligent explanation for the accident sufficient to raise a triable question of fact. Although Chen's counsel contends that the vehicles were merging at the time of the accident and that there is an issue of fact regarding the sequence of the impacts, such is merely speculative, unsupported by the evidence, and thus, insufficient to defeat the summary judgment. (see Andre v. Pomeroy, 35 NY2d 361 [1974]; Jacino v. Sugerman, 10 AD3d 593 [2d Dept. 2004] ).

Accordingly, and for the reasons stated above, it is hereby,

ORDERED, that defendant CRISTIAN BATISTA s/h/a CHRISTIAN BATISTA's motion for summary judgment is granted, the complaint and any and all claims are dismissed as asserted against asserted against defendant CRISTIAN BATISTA s/h/a CHRISTIAN BATISTA, only; and it is further

ORDERED, that plaintiff's cross-motion for partial summary judgment on the issue of liability against defendant Kendall Chen is granted; and it is further

ORDERED, that upon completion of discovery on the issue of damages, filing a Note of Issue, and compliance with all the rules of the Court, this action shall be placed on the trial calendar of the Court for a trial on serious injury and damages.

Robert J. McDonald, J.