Defendant's motion for summary judgment is granted. Defendant's employee and vehicle were involved in a rear end accident in which defendant's employee was driving the lead vehicle and claimant was a passenger in the rear vehicle. A prima facie case of negligence by the rear driver was established and claimant failed to establish that a question of fact existed as to defendant's negligence.
|Claimant short name:||CHOW|
|Footnote (claimant name) :|
|Defendant(s):||THE STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||JUDITH A. HARD|
|Claimant's attorney:||Marcel Weisman, LLC
By: Ezra Holczer, Esq.
|Defendant's attorney:||Hon. Letitia James, Attorney General
By: Indira Mahabir, AAG
|Third-party defendant's attorney:|
|Signature date:||November 26, 2019|
|See also (multicaptioned case)|
The instant claim was filed on May 30, 2018 seeking damages for injuries sustained as the result of a rear end collision involving two vehicles. The lead vehicle was owned by the New York State Office for People with Developmental Disabilities (OPWDD) and driven by Marie Onore.(1) Claimant was a passenger in the rear vehicle. Defendant now moves for summary judgment. Claimant opposes the motion.
Claimant testified that, on June 16, 2016, he was a passenger in a vehicle driven by his neighbor, Michael Rokeach. On that date, claimant and Mr. Rokeach were travelling to a shopping area together. They had driven for about 20 or 30 minutes before they exited the Belt Parkway at exit 15 near the Erskine shopping area in Brooklyn, New York. Claimant was looking out the passenger side window when he felt a heavy impact and heard a loud sound. He testified: "All I remember [is] a loud boom, shaking, then smoke coming out from the front of the vehicle, that was it" (Mahabir Aff., Exhibit D, p. 40).
Mr. Rokeach testified that at approximately 3:00 p.m. on June 16, 2016, he was driving his car to Target with claimant, who was sitting in the front passenger seat. The accident in question occurred on Gateway Drive. When he first turned onto Gateway Drive, he was in the right-hand lane, at which time he saw the vehicle driven by Ms. Onore about two car-lengths ahead of him in the right-hand lane. At the time that the accident occurred, Ms. Onore's vehicle was stopped and Mr. Rokeach's vehicle was moving. When questioned about how Ms. Onore's vehicle came to a stop, Mr. Rokeach stated: "It was two stops. I mean, there was one stop before I had the impact and then I stopped . . . [a]nd then the vehicle continued and I continued and then there was a sudden stop . . ." (Mahabir Aff., Exhibit F, p. 27). Mr. Rokeach further stated that he was about half a car length behind Ms. Onore's vehicle when it first came to a stop. He was unable to see whether there were any cars stopped ahead of Ms. Onore's vehicle due to the vehicle's large size. He started moving again about ten seconds later. Her further stated that fifteen seconds elapsed between the Ms. Onore's vehicles's first stop and its second stop, and that he was traveling at ten miles per hour when the collision occurred.
Ms. Onore testified that on June 16, 2016, she was working as a direct care assistant at Brooklyn Developmental Center, and her duties included taking mentally challenged patients to their appointments and helping them run errands. On the date of the accident, Ms. Onore followed her job's protocol by checking the vehicle she was driving to make sure there were no issues. This check included ensuring that the brake lights were working on that day. On the date of the accident, Ms. Onore exited the Belt Parkway at exit 15. She eventually made a left hand turn onto Gateway Drive and testified that she traveled only three car lengths before the accident occurred. At that time, there was an intersection ahead of her that served as the entrance to a mall with traffic lights. She stated that the traffic conditions were very light at that time and that there were two vehicles ahead of her, stopped at the red light at that intersection. Ms. Onore testified that she was completely stopped, about three quarters of a car length behind the car in front of her at that intersection when the accident occurred. Her vehicle was stopped for about five or eight seconds before the collision occurred. Ms. Onore testified that she then felt a heavy impact at the rear end of the vehicle.
Robinetta McGett, who was a passenger in Ms. Onore's vehicle, testified that their vehicle was stopped at a light, at which time she felt the impact of the accident. She stated that the vehicle was stopped at the light for at least five seconds before the impact.
LAW AND DISCUSSION
Summary judgment is a drastic remedy which should not be granted unless it is clear that there are no triable issues of fact (Andre v Pomeroy, 35 NY2d 361, 364 ). The Court's function on a motion for summary judgment is not to resolve issues of fact, but to determine whether issues of fact exist (see Barr v County of Albany, 50 NY2d 247, 254 ). The proponent of a motion for summary judgment must establish a prima facie entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (Alvarez v Prospect Hosp., 68 NY2d 320, 324 ). Once the proponent of a motion for summary judgment has set forth such a prima facie entitlement to judgment as a matter of law, the burden shifts to the opponent of the motion to produce evidentiary proof, in admissible form, sufficient to establish the existence of material issues of fact which require a trial of the action (id.; Winegrad New York Univ. Med. Ctr., 64 NY2d 851, 853 ; Zuckerman v City of New York, 49 NY2d 557, 562 ). In determining a motion for summary judgment, the Court must examine the proof in the light most favorable to the party opposing the motion, here, claimant (Robinson v Strong Mem. Hosp., 98 AD2d 976, 976 [4th Dept. 1983]). A motion for summary judgment shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admissions (CPLR 3212 [b]). Failure to make a prima facie showing requires denial of summary judgment, regardless of the sufficiency of the opposing papers (Winegrad v New York Univ. Med. Ctr., 64 NY2d at 853).
A rear-end collision with a vehicle that has stopped for a traffic device establishes a prima facie case of negligence by the driver in the back, which may be rebutted only by a non-negligent explanation for the accident (see Baez-Pena v MM Truck and Body Repair, Inc., 151 AD3d 473, 476 [1st Dept. 2017]). Here, claimant argues that a question of fact remains as whether Ms. Onore's negligence contributed to the accident. In that regard, claimant argues that Ms. Onore's vehicle came to an initial stop, but then proceeded forward for half a car length before it came to a sudden stop, and that claimant "had no way to avoid the impact" (Mahabir Aff., Exhibit F, p. 27).
" 'One of several nonnegligent explanations for a rear-end collision is a sudden stop of the lead vehicle' " (Foti v Fleetwood Ride, Inc., 57 AD3d 724, 724 [2d Dept. 2008], quoting Chepel v Meyers, 306 AD2d 235, 237 [2d Dept. 2003] [additional citation omitted]). However, vehicle stops that are foreseeable under the traffic conditions occurring at the time of the accident must be anticipated by the following driver (Shamah v Richmond County Ambulance Serv., 279 AD2d 564, 565 [2d Dept. 2001]). Moreover, conclusory assertions of the lead vehicle's sudden stop are insufficient to rebut the inference of negligence on the part of the rear driver (Brothers v Bartling, 130 AD3d 554, 556 [2d Dept. 2015]; Edgerton v City of New York, 160 AD3d 809, 811 [2d Dept. 2018]).
Here, claimant sets forth only Mr. Rokeach's conclusory assertion that Ms. Onore's vehicle stopped suddenly after its initial stop at the intersection on Gateway Drive, which is insufficient to establish a non-negligent explanation for the collision. Both Ms. Onore and Ms. McGett testified that their vehicle was stopped behind two vehicles at a red light when they both felt a heavy impact at the rear of their vehicle. Neither of them stated that the vehicle had stopped twice at that intersection before the collision. Moreover, claimant did not observe Ms. Onore's vehicle before the collision because he was looking out the window at the time of the impact. Mr. Rokeach's statement that Ms. Onore made a sudden stop is insufficient to raise a triable issue of fact where the evidence shows that Ms. Onore's vehicle was stopped at a red light and there were two cars stopped ahead of her (see Le Grand v Silberstein, 123 AD3d 773, 775 [2d Dept. 2014] [no triable issue of fact where lead driver demonstrated that he was slowing down for traffic in front of him at the time of rear end collision]; Gutierrez v Trillium USA, LLC, 111 AD3d 669, 671 [2d Dept. 2013] [no triable issue of fact where rear driver was one car length behind lead driver and traveling only 30 miles per hour in traffic at the time of rear end collision]). Even if the Court were to credit Mr. Rokeach's testimony that Ms. Onore's vehicle stopped suddenly, the Court would reach the same result, as Mr. Rokeach had the duty "to exercise reasonable care under the circumstances to avoid an accident" (Maragos v Sakurai, 92 AD3d 922, 923 [2d Dept. 2012]), which includes maintaining a sufficient distance from Ms. Onore's vehicle (see Tumminello v City of New York, 148 AD3d 1084, 1085 [2d Dept. 2017]; De Castillo v Sormeley, 140 AD3d 918, 919 [2d Dept. 2016]). Under these circumstances, the Court finds that defendant has established its entitlement to summary judgment.
Based upon the foregoing, it is hereby
ORDERED that defendant's motion for summary judgment (M-94286) is GRANTED and claim number 131500 is DISMISSED.
November 26, 2019
Albany, New York
JUDITH A. HARD
Judge of the Court of Claims
1. Verified Claim, filed on May 30, 2018.
2. Verified Answer, filed on June 29, 2018.
3. Notice of Motion, dated July 17, 2019; and Affirmation in Support of Motion for Summary Judgment, affirmed by Indira Mahabir, AAG on July 17, 2019, with Exhibits A through H annexed thereto.
4. Affirmation in Opposition, affirmed by Ezra Holczer, Esq. on August 6, 2019.
1. Although the verified claim states that the car was owned by the New York State Office of Mental Retardation and Developmental Disabilities (OMRDD), OMRDD was renamed to "New York State Office for People with Developmental Disabilities" in 2010 (Mental Hygiene Law § 1307, as amended by L 2010, Ch 168).