Index No. 609433/2018, Mot. Seq. No. 001 MG.

2018 NY Slip Op 34265(U)


Supreme Court, Suffolk County.

Final Return August 23, 2018.

October 31, 2018.

Attorney(s) appearing for the Case



It is,

ORDERED that plaintiff's motion, for partial summary judgment in her favor on the issue of negligence is granted; and it is further

ORDERED that counsel for the parties shall appear at 10:00 a.m. on November 28, 2018, at the DCM-J Part of the Supreme Court, 1 Court Street, Riverhead, New York, for a preliminary conference.

This is an action to recover damages for injuries allegedly sustained by plaintiff Rosemarie Matus as a result of a motor vehicle collision that occurred on February 22, 2016, on Sunrise Highway near Connetquot Avenue in Islip, New York. The accident allegedly occurred when a motor vehicle owned and operated by defendant Nicole Leconte-Dean struck plaintiffs vehicle in the rear.

Plaintiff now moves for partial summary judgment in her favor on the issue of liability, arguing that defendant's negligence was a legal and proximate cause of the collision. In support of her motion, plaintiff submits copies of the pleadings, a certified police accident report, and her own affidavit. Defendant has not submitted any opposition to the motion.

It is well settled that the proponent of a summary judgment motion bears the initial burden of establishing his or her entitlement to judgment, as a matter of law, in his or her favor by offering admissible evidence sufficient to eliminate any material issues of fact from the case (see Alvarez v Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923 [1986]; Winegrad v New York Univ. Med Ctr., 64 N.Y.2d 851, 487 N.Y.S.2d 316 [1985]; Zuckerman v City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595 [1980]). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of any opposition thereto (Winegrad v New York Univ. Med. Ctr., supra). Once the movant has made the requisite showing, the burden then shifts to the opposing party, requiring him or her to present admissible evidence and facts sufficient to require a trial on any issue of fact (CPLR 3212[b]; Alvarez v Prospect Hosp., supra; Zuckerman v City of New York, supra). On such a motion, the Court is charged with determining whether issues of fact exist while viewing any evidence in a light most favorable to the nonmoving party; the court is not responsible for resolving issues of fact or determining matters of credibility (see Chimbo v Bolivar, 142 A.D.3d 944, 37 N.Y.S.3d 339 [2d Dept 2016]; Pearson v Dix McBride, LLC, 63 A.D.3d 895, 883 N.Y.S.2d 53 [2d Dept 2009]; Kolivas v Kirchoff, 14 A.D.3d 493, 787 N.Y.S.2d 392 [2d Dept 2005]). A motion for summary judgment should be denied where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility (see Chimbo v Bolivar, supra; Benetatos v Comerford, 78 A.D.3d 730, 911 N.Y.S.2d 155 [2d Dept 2010]).

"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 moving vehicle to come forward with an adequate non-negligent explanation for the accident" (Ramirez v Konstanzer, 61 A.D.3d 837, 878 N.Y.S.2d 381 [2d Dept 2009], quoting Arias v Rosario, 52 A.D.3d 551, 552, 860 N.Y.S.2d 168 [2d Dept 2008]). A driver following behind another must maintain a reasonably safe rate of speed and distance to avoid colliding with the preceding vehicle (Cajas-Romero v Ward, 106 A.D.3d 850, 965 N.Y.S.2d 559 [2d Dept 2013]; see Vehicle and Traffic Law § 1129[a]).

"[V]ehicle stops which are foreseeable under the prevailing traffic conditions, even if sudden and frequent, must be anticipated by the driver who follows, since he or she is under a duty to maintain a safe distance between his car and the car ahead "(Shamah v Richmond County Ambulance Serv., 279 A.D.2d 564, 719 N.Y.S.2d 287 [2d Dept 2001]; see Vehicle and Traffic Law § 1129 [a]). However, the preceding driver also has the duty to "not stop suddenly or slow down without proper signaling so as to avoid a collision" (Drake v Drakoulis, 304 A.D.2d 522, 756 N.Y.S.2d 881 [2d Dept 2003], quoting Niemiec v Jones, 237 A.D.2d 267, 268, 654 N.Y.S.2d 163 [2d Dept 1997]; see Balducci v Velasquez, 92 A.D.3d 626, 938 N.Y.S.2d 178 [2d Dept 2012]; see Vehicle and Traffic Law § 1163). Thus, a conclusory assertion that "the driver of the [preceding] vehicle made a sudden stop, standing alone, is insufficient to rebut the presumption of negligence" (Ramirez v Konstanzer, supra, quoting Russ v Investech Securities, Inc., 6AD3d 602, 602, 775 N.Y.S.2d 867 [2d Dept 2004]; see Shamah v Richmond County Ambulance Serv., supra.) A plaintiff may obtain partial summary judgment on the issue of liability without demonstrating the absence of his or her own comparative fault (Rodriguez v City of New York, 31 N.Y.3d 312, 76 N.Y.S.3d 898 [2018]; Poon v Nisanov, 162 A.D.3d 804, 79 N.Y.S.3d 227 [2d Dept 2018]).

Plaintiff has made a prima facie case of entitlement to summary judgment in her favor on the issue of negligence, as her affidavit established that her vehicle was hit in the rear by defendant's vehicle while traveling westbound on Sunrise Highway (see Shamah v Richmond County Ambulance Serv., supra). The police accident report denotes that the rear of plaintiffs vehicle and the front of defendant's vehicle were damaged, describing the accident as a "rear end." As the police report is a certified copy, it is admissible to show contact between the vehicles (see CPLR 4518[a]; Lynch v Fleming, 115 A.D.2d 712, 496 N.Y.S.2d 447 [2d Dept 1985]). Therefore, plaintiff has demonstrated, prima facie, that she is entitled to summary judgment on the issue of liability (see Lewis v City of New York, 157 A.D.3d 879, 66 N.Y.S.3d 916 [2d Dept 2017]; Cortese v Pobejimov, 136 A.D.3d 635, 24 N.Y.S.3d 405 [2d Dept 2016]).

Having made the requisite prima facie showing of entitlement to summary judgment, the burden shifts to the defendants to rebut the presumption of negligence or raise a triable issue of fact or offer a non negligent explanation (see Cortes v Whelan, 83 A.D.3d 763, 922 N.Y.S.2d 419 [2d Dept 2011]; Balducci v Velasquez, supra). Defendant has failed to submit any opposition or evidence in admissible form to raise a triable issue of fact. Therefore, defendants has not met her burden (Alvarez v Prospect Hosp., supra; Zuckerman v City of New York, supra).

Accordingly, the motion by plaintiff for partial summary judgment in her favor on the issue of liability is granted.


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