Phillip v. D & D Carting Co.

DILLON, J.P.

McCabe, Collins, McGeough & Fowler, LLP, Carle Place, N.Y. (Patrick M. Murphy of counsel), for appellants.

Koenigsberg & Associates, P.C. Law Offices, Brooklyn, N.Y. (Richard S. Weiss of counsel), for respondent.

MARK C. DILLON, J.P., ROBERT J. MILLER, JOSEPH J. MALTESE, and COLLEEN D. DUFFY, JJ.

DILLON, J.P.I. Facts

This appeal arises out of a two-vehicle, rear-end collision that occurred on November 7, 2011, at the intersection of Flatbush Avenue and Beverley Road in Brooklyn. The lead vehicle, a passenger van, was owned by the defendants Sunjet Express, Inc. (hereinafter Sunjet), and Petamar Prasad, and operated by the defendant Derrick Valentine Johnson (hereinafter collectively the Sunjet defendants). The rear vehicle was a garbage truck owned by the defendant D & D Carting Co., Inc. (hereinafter D & D), and operated by the defendant Eric Gutierrez. The van was stopped on Flatbush Avenue discharging passengers at its intersection with Beverley Road when it was struck in the rear by the truck. The plaintiff, who was seated in the last row of the van with her seat belt on, allegedly was injured as a result of the impact between the truck and the van. The truck's operator, Gutierrez, explained in an affidavit that as he approached a red light at the intersection, he applied his brakes in a normal fashion, but his truck skidded on oil on the surface of the roadway. Gutierrez asserted that, as a result, he was unable to stop the truck, and it struck the back of the van. According to Gutierrez, at the moment of impact, the van was parked in a manner that partially blocked a moving lane of traffic. Thereafter, the plaintiff commenced this action against D & D, Gutierrez, and the Sunjet defendants, seeking to recover damages for personal injuries.

After the exchange of certain documentary discovery, but before any party depositions were conducted, the Sunjet defendants moved for summary judgment dismissing the complaint insofar as asserted against them. The plaintiff separately moved for summary judgment on the issue of liability insofar as asserted against D & D and Gutierrez, but made no motion against the Sunjet defendants. The Sunjet defendants separately moved for summary judgment in a related action arising out of the accident that involved another plaintiff.

As relevant here, the plaintiff argued, in support of her motion, that she was entitled to summary judgment on the issue of liability against D & D and Gutierrez on the ground that she was a non-operator, innocent passenger in the stopped van and that, as such, her conduct could not have been a proximate cause of the rear-end collision between the truck and the van. And, although she alleged in her complaint that the Sunjet defendants were at fault in the happening of the accident, the plaintiff specifically argued in her motion papers that the sole proximate cause of the accident was Gutierrez's failure to maintain control over the truck.

D & D and Gutierrez opposed the plaintiff's motion for summary judgment, contending both that Gutierrez was not at fault for the accident because the truck skidded on oil, and that the negligence of the van's operator contributed to the accident. In support of their position, they submitted Gutierrez's affidavit, in which he attributed the accident, in part, to the skidding of the truck on roadway oil. D & D and Gutierrez thus argued that the incident was an "unavoidable accident," occasioned by the presence of oil on the roadway, without negligence on the part of Gutierrez. Although Gutierrez averred that he took a photograph of the oil at the scene with his cell phone, as reproduced in the record, the quality of the photograph which allegedly depicts oil spots on the roadway is poor. Gutierrez's affidavit also attributed the accident, in part, to the van operator's negligence in parking the van in such a manner that it was partially situated in a moving lane of traffic at the time of the collision. Despite the fact that D & D and Gutierrez had asserted the affirmative defense of contributory negligence in their answer, they did not dispute the plaintiff's averments that she was seated in the rear of the van with her seat belt on when the accident occurred, or suggest that she was in any manner at fault.

In the order appealed from, dated December 20, 2013, the Supreme Court denied the Sunjet defendants' motion for summary judgment dismissing the complaint insofar as asserted against them, without prejudice to renewal upon the completion of depositions, and granted the plaintiff's motion for summary judgment on the issue of liability insofar as asserted against D & D and Gutierrez. D & D and Gutierrez appeal, as limited by their brief, from so much of the order as granted the plaintiff's motion.

For the reasons set forth below, we reverse the order insofar as appealed from, and conclude that the plaintiff is not entitled to summary judgment on the issue of liability against D & D and Gutierrez. However, since the plaintiff's freedom from comparative fault is incontrovertible on this record, we further conclude that she is entitled to the entry of an order pursuant to CPLR 3212(g) specifying that she was free from comparative fault in the happening of the accident.

The procedure for determining motions for summary judgment has often been described. The party seeking summary judgment bears the initial burden of establishing his or her prima facie entitlement to judgment as a matter of law, tendering evidence sufficient to eliminate any triable, material issues of fact from the case (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 ; Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 ; Sillman v. Twentieth Century–Fox Film Corp., 3 N.Y.2d 395, 404, 165 N.Y.S.2d 498, 144 N.E.2d 387 ). The evidence submitted in support of a motion for summary judgment must be in a form that would render it admissible at trial (see Friends of Animals v. Associated Fur Mfrs., 46 N.Y.2d 1065, 1067–1068, 416 N.Y.S.2d 790, 390 N.E.2d 298 ). If the moving party fails to meet his or her prima facie burden, the papers submitted in opposition need not be considered (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 ). Conversely, if the moving party makes a prima facie showing, the burden shifts to the opposing party to demonstrate the existence of an issue of fact requiring a trial (see Alvarez v. Prospect Hosp., 68 N.Y.2d at 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 ; Zuckerman v. City of New York, 49 N.Y.2d at 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 ; Friends of Animals v. Associated Fur Mfrs., 46 N.Y.2d at 1068, 416 N.Y.S.2d 790, 390 N.E.2d 298 ).

"A rear-end collision with a stopped or stopping vehicle creates a prima facie case of negligence with respect to the operator of the moving vehicle and imposes a duty on the operator [of the offending vehicle] to rebut the inference of negligence by providing a non-negligent explanation for the collision" (Delgado v. Bang, 120 A.D.3d 608, 609, 991 N.Y.S.2d 649 ; see D'Agostino v. YRC, Inc., 120 A.D.3d 1291, 992 N.Y.S.2d 358 ; Billis v. Tunjian, 120 A.D.3d 1168, 992 N.Y.S.2d 319 ; O'Rourke v. Carucci, 117 A.D.3d 1015, 986 N.Y.S.2d 521 ; Robayo v. Aghaabdul, 109 A.D.3d 892, 893, 971 N.Y.S.2d 317 ; Mallen v. Su, 67 A.D.3d 974, 890 N.Y.S.2d 79 ). To prevail on a motion for summary judgment on the issue of liability, a plaintiff must establish, prima facie, not only that the opposing party was negligent, but also that the plaintiff was free from comparative fault (see Thoma v. Ronai, 82 N.Y.2d 736, 737, 602 N.Y.S.2d 323, 621 N.E.2d 690 ; Espinoza v. Coca–Cola Bottling Co. of N.Y., Inc., 121 A.D.3d 640, 993 N.Y.S.2d 721 ; Gorenkoff v. Nagar, 120 A.D.3d 470, 990 N.Y.S.2d 604 ; Lu Yuan Yang v. Howsal Cab Corp., 106 A.D.3d 1055, 1055–1056, 966 N.Y.S.2d 167 ). Ramos v. Bartis, 112 A.D.3d 804, 977 N.Y.S.2d 315 ; Allen v. Echols, 88 A.D.3d 926, 927, 931 N.Y.S.2d 402 ; Pollack v. Margolin, 84 A.D.3d 1341, 1342, 924 N.Y.S.2d 282 ; Lopez v. Reyes–Flores, 52 A.D.3d 785, 786, 861 N.Y.S.2d 389 ).

Here, the plaintiff met her prima facie burden of demonstrating her entitlement to judgment as a matter of law with respect to both aspects of the twofold test. The plaintiff could rely upon the legal inference that D & D and Gutierrez were negligent, as it was clear from the submissions that their garbage truck struck the van in the rear while the van was in a stopped position at the scene of the accident (see Billis v. Tunjian, 120 A.D.3d 1168, 992 N.Y.S.2d 319 ; Amador v. City of New York, 120 A.D.3d 526, 991 N.Y.S.2d 637 ; Cajas–Romero v. Ward, 106 A.D.3d 850, 851, 965 N.Y.S.2d 559 ; Kertesz v. Jason Transp. Corp., 102 A.D.3d 658, 658–659, 957 N.Y.S.2d 730 ; Menelas v. Yearwood–Bobb, 100 A.D.3d 603, 604–605, 953 N.Y.S.2d 286 ; Ramos v. TC Paratransit, 96 A.D.3d 924, 925, 946 N.Y.S.2d 644 ). Moreover, the plaintiff established that she did not engage in any culpable conduct that contributed to the happening of the accident, as she was a mere passenger within the van, without any control over its positioning and operation upon the roadway (see Rodriguez v. Farrell, 115 A.D.3d 929, 983 N.Y.S.2d 68 ; Medina v. Rodriguez, 92 A.D.3d 850, 851, 939 N.Y.S.2d 514 ; Garcia v. Tri–County Ambulette Serv., 282 A.D.2d 206, 207, 723 N.Y.S.2d 163 ).

In granting the plaintiff's motion for summary judgment on the issue of liability insofar as asserted against D & D and Gutierrez, the Supreme Court necessarily determined that D & D and Gutierrez failed to raise a triable issue of fact in opposition, namely, a nonnegligent explanation for the rear-end collision. While we agree that their opposition papers failed to identify a triable issue of fact as to whether the plaintiff was somehow at fault in the happening of the accident, the papers nonetheless raised colorable, triable issues of fact regarding whether D & D and Gutierrez were free from all fault. Specifically, Gutierrez maintained in his opposing affidavit that, as he applied the brakes of the truck in a normal fashion while approaching a red light at the intersection, the truck did not stop, but instead skidded on roadway oil.

Although the Gutierrez affidavit lacked details regarding his speed, the distance he traveled, and the amount of roadway oil that may have been present, we note that Gutierrez was never Torrillo v. Command Bus Co., 206 A.D.2d 520, 521, 614 N.Y.S.2d 756 ). Moreover, Gutierrez's contention that his truck skidded on oil was corroborated by the presentation of photographs taken at the scene (see Shamah v. Richmond County Ambulance Serv., 279 A.D.2d 564, 565, 719 N.Y.S.2d 287 ). Thus, the opposition of D & D and Gutierrez raised triable issues of fact as to whether they were free from fault in the happening of the accident.

We take this opportunity to caution that trial courts must be careful to avoid concluding, in rear-end accident cases, that just because a plaintiff is a passenger in the lead vehicle, the liability of the rear vehicle is automatically established. It is not. A plaintiff moving for summary judgment on the issue of liability must meet the twofold burden of establishing that he or she was free from comparative fault and was, instead, an innocent passenger, and, separately, that the operator of the rear vehicle was at fault. If the plaintiff fails to demonstrate, prima facie, that the operator of the offending vehicle was at fault, or if triable issues of fact are raised by the defendants in opposition, as here, summary judgment on the issue of liability must be denied, even if the moving plaintiff was an innocent passenger (see Anjum v. Bailey, 123 A.D.3d 852, 999 N.Y.S.2d 454 ; Pinilla v. New York City Tr. Auth., 122 A.D.3d 703, 996 N.Y.S.2d 198 ).

We further note that Gutierrez raised the issue of the Sunjet defendants' comparative fault by asserting that the van was partially stopped in the moving lane of traffic. A plaintiff's right as an innocent passenger to summary judgment on the issue of liability is not barred or restricted by any potential issue of comparative fault as between the owners and operators of the two vehicles involved in the accident (see Rodriguez v. Farrell, 115 A.D.3d 929, 983 N.Y.S.2d 68 ; Medina v. Rodriguez, 92 A.D.3d at 850, 939 N.Y.S.2d 514 ; Garcia v. Tri–County Ambulette Serv., 282 A.D.2d at 207, 723 N.Y.S.2d 163 ; Johnson v. Phillips, 261 A.D.2d 269, 272, 690 N.Y.S.2d 545 ; Silberman v. Surrey Cadillac Limousine Serv., 109 A.D.2d 833, 833–834, 486 N.Y.S.2d 357 ). Thus, had the only triable issue of fact raised by D & D and Gutierrez been the Sunjet defendants' comparative fault, the plaintiff would have been entitled to summary judgment on the issue of liability against D & D and Gutierrez. However, since D & D and Gutierrez raised a triable issue of fact as to whether they were completely free from fault, "[t]his matter involves more than simply a trier of fact's apportionment of fault between both defendants" (Anjum v. Bailey, 123 A.D.3d at 853, 999 N.Y.S.2d 454 ). Accordingly, the plaintiff is not entitled to summary judgment on the issue of liability against D & D and Gutierrez.

Although the existence of an issue of fact as to whether D & D and Gutierrez were completely free from fault prevents the plaintiff from obtaining summary judgment on the issue of liability against them (see Anjum v. Bailey, 123 A.D.3d at 853, 999 N.Y.S.2d 454 ; Pinilla v. New York City Tr. Auth., 122 A.D.3d at 705, 996 N.Y.S.2d 198 ), we recognize that the uncontested facts in this case are that the plaintiff was a passenger seated in the last row of the Sunjet defendants' van, with her seat belt fastened, when the accident occurred, and that these uncontested facts compel a conclusion that she was free from comparative fault. Indeed, while both of the drivers involved in the accident submitted affidavits in which each maintained that they were completely free from fault, neither driver suggested that the plaintiff bore any fault. In circumstances such as these, the court may appropriately exercise the discretion granted by CPLR 3212(g), which authorizes it to make an order specifying "what facts are not in dispute or are incontrovertible," so that they may "be deemed established for all purposes in the action." In this way, the court may limit the factual issues that must be established at trial, thereby "salvag[ing] something of value" from a motion for full or partial summary judgment that must otherwise be denied (E.B. Metal & Rubber Industries, Inc. v. County of Washington, 102 A.D.2d 599, 603, 479 N.Y.S.2d 794 ).

We conclude that the plaintiff is not entitled to summary judgment on the issue of liability against D & D and Gutierrez, as they raised triable issues of fact with respect to whether Gutierrez was involved in an unavoidable accident. We further note that there are triable issues of fact with respect to the comparative fault of D & D and Gutierrez, on the one hand, and the Sunjet defendants, on the other. However, the plaintiff is entitled to the issuance of an order pursuant to CPLR 3212(g) specifying that she was a passenger seated in the last row of the Sunjet defendants' van, with her seat belt fastened, when the accident occurred, and as such was free from comparative fault in the happening of the accident.

In light of the foregoing, the order is reversed insofar as appealed from, the plaintiff's motion for summary judgment on the issue of liability insofar as asserted against the defendants D & D Carting Co., Inc., and Eric Gutierrez is denied, and the matter is remitted to the Supreme Court, Kings County, for further proceedings including the issuance of an order pursuant to CPLR 3212(g) specifying that the plaintiff was a passenger seated in the last row of the van owned by the defendants Sunjet Express, Inc., and Petamar Prasad, and operated by the defendant Derrick Valentine Johnson, with her seat belt fastened, when the accident occurred, and as such was free from comparative fault in the happening of the accident.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, the plaintiff's motion for summary judgment on the issue of liability insofar as asserted against the defendants D & D Carting Co., Inc., and Eric Gutierrez is denied, and the matter is remitted to the Supreme Court, Kings County, for further proceedings including the issuance of an order pursuant to CPLR 3212(g) specifying that the plaintiff was a passenger seated in the last row of the van owned by the defendants Sunjet Express, Inc., and Petamar Prasad, and operated by the defendant Derrick Valentine Johnson, with her seat belt fastened, when the accident occurred, and as such was free from comparative fault in the happening of the accident.

MILLER, MALTESE and DUFFY, JJ., concur.