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Sergio DOMINGUEZ, Jr., an infant by his mother and natural guardian, Francisca Dominguez, and Francisca Dominguez, individually, Plaintiffs v. Lyn FONTANELLA and Pedro Fabian, Defendants.

No. 304502/2008.

Decided: July 31, 2009

Gail Mota Esq., Gorayeb & Associates, New York, for Plaintiffs. Erica Cohn Esq., Law Office of Mary A. Bjork, Harrison, for Defendant Fontanella. Erin O'Leary Esq., Morgan Melhuish Abrutyn, New York, for Defendant Fabian.

Plaintiffs sue to recover for personal injuries and loss of services sustained January 6, 2007, when a motor vehicle owned and operated by defendant Fabian, in which plaintiff Sergio Dominguez Jr. was a passenger, struck the rear of a motor vehicle owned and operated by defendant Fontanella while travelling on the Hutchinson River Parkway in Westchester County. Fontanella moves for summary judgment dismissing the claims against her, C.P.L.R. § 3212(b), on the ground she is not liable for the collision. Upon oral argument and after attempts to settle the action, the court denies her motion for the reasons explained below.


A driver travelling behind another vehicle has a duty to maintain a safe distance behind the front vehicle, whether it is moving or stopped, to avoid a rear end collision in the event the front vehicle slows down or stops, even suddenly. NY Veh. & Traf. Law (VTL) § 1129(a); Woodley v. Ramirez, 25 AD3d 451, 452 (1st Dep't 2006); Mullen v. Rigor, 8 AD3d 104 (1st Dep't 2004); Malone v. Morillo, 6 AD3d 324, 325 (1st Dep't 2004); Figueroa v. Luna, 281 A.D.2d 204, 206 (1st Dep't 2001). Fontanella's affidavit that, while she was slowing her vehicle to allow traffic to enter the roadway ahead, Fabian's vehicle hit her vehicle from the rear after Fabian looked down at a navigational device, establishes her lack of negligence and contribution in causing the collision and thus a prima facie defense to liability for the collision. Francisco v. Schoepfer, 30 AD3d 275 (1st Dep't 2006); Garcia v. Bakemark Ingredients (E.) Inc., 19 AD3d 224 (1st Dep't 2005). See Somers v. Condlin, 39 AD3d 289 (1st Dep't 2007); Woodley v. Ramirez, 25 AD3d at 452. Fontanella's evidence shifts the burden to plaintiff, the passenger, and co-defendant, the owner and driver of the vehicle behind hers, to present a reason attributable to Fontanella for co-defendant's failure to maintain a safe distance behind her vehicle. Francisco v. Schoepfer, 30 AD3d at 276; Woodley v. Ramirez, 25 AD3d at 452; Mullen v. Rigor, 8 AD3d 104; Jean v. Zong Hai Xu, 288 A.D.2d 62 (1st Dep't 2001).

At least until recently, the above authority would have foreclosed Fontanella's sudden stop of her front vehicle, unaccompanied by her other negligent conduct, as a basis for attributing fault to Fontanella for the rear vehicle's collision with her front vehicle. Only evidence that the front vehicle veered in front of the rear vehicle, VTL § 1128(a); Summers v. Teddy Cab Corp., 50 AD3d 671, 672 (2d Dep't 2008); White v. Gooding, 21 AD3d 485 (2d Dep't 2006); Jacino v. Sugerman, 10 AD3d 593, 595 (2d Dep't 2004); Neryaev v. Solon, 6 AD3d 510 (2d Dep't 2004), failed to signal a change of direction, was operating with malfunctioning brake lights, VTL § 1163(c) and (d); Ramos v. Rojas, 37 AD3d 291, 292 (1st Dep't 2007); Yass v. Liverman, 233 A.D.2d 110 (1st Dep't 1996); Morrison v. Montzoutsos, 40 AD3d 717, 718 (2d Dep't 2007), or otherwise violated the Vehicle and Traffic Law or regulations under it would raise issues as to the front driver's contributing fault. See Wilson v. Certain Cab Corp ., 303 A.D.2d 252, 253 (1st Dep't 2003); Figueroa v. Cadbury Util. Constr. Corp., 239 A.D.2d 285 (1st Dep't 1997); Schlanger v. Doe, 53 AD3d 827, 828-29 (3d Dep't 2008); Gibson v. Gentry, 16 AD3d 744, 745 (3d Dep't 2005).

A. Tutrani v. County of Suffolk Provides a Basis for Finding Fontanella Negligent.

Tutrani v. County of Suffolk, 10 NY3d 906 (2008), may have altered this state of the law and opened the door to finding a sudden stop a contributing cause of a rear end collision. In that case, the front vehicle in a rear end collision “abruptly” decelerated, “while changing lanes,” id. at 907, creating a “lane obstruction.” Id. at 908. While under prior authority only the “changing lanes” would have raised an issue of the front driver's fault, Tutrani does not indicate that this fact is critical to finding the front driver a contributing cause of the collision or that the “lane obstruction” must result from changing lanes rather than the abrupt deceleration.

Here, contrary to Fontanella's account, Fabian attests that no vehicles were in front of Fontanella before the collision, and she admitted to him after the collision that she purposely braked because he was following too closely. Fabian's version of events fits the precise situation carved out by Tutrani v. County of Suffolk, 10 NY3d at 908: the front driver's “actions created a foreseeable danger that vehicles would have to brake aggressively in an effort to avoid the lane obstruction created by [the front] vehicle, thereby increasing the risk of a rear-end collision.”

While Fontanella's sudden deceleration does not negate Fabian's own negligent inability to stop in time to avoid the rear end collision with the vehicle ahead, Tutrani now holds that that inability to stop is “a normal or foreseeable consequence of the situation created” by her actions. Id.; Maheshwari v. City of New York, 2 NY3d 288, 295 (2004); Derdiarian v. Felix Constr., 51 N.Y.2d 308, 315 (1980); Anaya v. Town Sports Intl., Inc., 44 A.D.2d 485, 487 (1st Dep't 2007). See Mason v. U.E.S.S. Leasing Corp., 96 N.Y.2d 875, 878 (2001); Ferrer v. Harris, 55 N.Y.2d 285, 293-94 (1982); White v. Diaz, 49 AD3d 134, 139-40 (1st Dep't 2008); Gross v. New York City Tr. Auth., 256 A.D.2d 128, 130-31 (1st Dep't 1998). Contrary to Fontanella's expressed purpose, braking hard does not “ward off” the driver behind; instead, such action increased the risk of a collision by vehicles behind Fontanella. Am. Reply Aff. of Erica A. Cohn ¶ 11.

B. Vehicle and Traffic Law § 1202(a)(1)(j) Does Not Provide a Basis for Finding Fontanella Negligent.

Fontanella was not negligent, however, based on the statutory violation that Fabian claims. Vehicle and Traffic Law § 1202(a)(1)(j) prohibits stopping, standing, or parking “a vehicle on a state expressway highway or state interstate route highway except in an emergency.” See N.Y. High. Law §§ 340-a, 340-c; VTL §§ 145-a, 145-b; Dowling v. Consolidated Carrier Corp., 103 A.D.2d 675, 676 (1984), aff'd, 65 N.Y.2d 799, 801 (1985). Fontanella's stop on an expressway or interstate route, unless “necessary to avoid conflict with other traffic,” VTL § 1202(a); Mitchum v. Friend, 270 A.D.2d 841 (4th Dep't 2000), would violate § 1202(a)(1)(j). Dowling v. Consolidated Carriers Corp., 103 A.D.2d at 676, aff'd, 65 N.Y.2d at 801; Marsicano v. Fabrizio, 61 AD3d 941 (2d Dep't 2009); Gregson v. Terry, 35 AD3d 358, 361 (2d Dep't 2006). Although Fontanella attests that she did not stop, but only decelerated, and did so due to traffic in front of her at the time of the collision, Fabian's conflicting account and the certified police report that she stopped raise factual issues regarding the applicability of the exception to § 1202(a)(1)'s prohibition against stopping. Nevarez v. S.R.M. Mgt. Corp., 58 AD3d 295, 298 (1st Dep't 2008); Langhorn v. K. Solo Serv. Corp., 302 A.D.2d 307, 308 (1st Dep't 2003); Boockvor v. Fischer, 56 AD3d 405, 406 (2d Dep't 2008); Guerra v. Cantos, 38 AD3d 714, 715 (2d Dep't 2007). Nevertheless, since the Hutchinson River Parkway is not a state expressway, N.Y. High. Law § 340-c; VTL § 145-a, and is a state interstate route connection only between the Bronx-Whitestone Bridge approach and the Bruckner Expressway, N.Y. High. Law § 340-a; VTL § 145-b, any stop for any reason in Westchester County would not violate Vehicle and Traffic Law § 1202(a)(1)(j).


Consequently, the court denies defendant Fontanella's motion for summary judgment. C.P.L.R. § 3212(b). This decision constitutes the court's order. The court will provide copies to the parties' attorneys.


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