The plaintiff argues that Sergeant Prantle, the United States government employee, has admitted liability for the accident by stating in his deposition that he "must have looked to the left or something" before impacting the plaintiff's vehicle, and that he was "a little bit tired." In addition, the plaintiff claims that by not swerving to avoid the collision the defendant must be found liable as a matter of law. Plaintiff then sets forth a number of cases that stand for the proposition that a rear-end collision into a vehicle that is "lawfully stopped" makes out a prima facie case in favor of the plaintiff on the issue of liability, such that the defendant must come forward with some rebuttal evidence or be declared liable. See Parise v. Meltzer, 204 A.D.2d 295, 611 N.Y.S.2d 291 (2d Dept. 1994). The issue, however, is not whether the plaintiff was rear-ended, but rather, whether she was "lawfully stopped."
The plaintiff was following a car that tried to make a right hand turn into a service station. That first car was forced to stop mid-turn because the lane was occupied by a number of children playing. The defendant's employee, Sergeant Prantle, was following the plaintiff. In her Memorandum of Law, the plaintiff asserts that the her claim that she was lawfully stopped is a fact not in dispute. Yet, in her statement of facts not in dispute, submitted pursuant to Local Rule 7.1(f), the plaintiff claims, inter alia, that it is undisputed that she was driving west on Finney Boulevard, that she was forced to stop abruptly, and that the defendant's vehicle operated by Sergeant Prantle struck her vehicle. On the facts not in dispute in this case, and drawing all inferences in favor of the non-moving party, it is not clear that whether the plaintiff was lawfully stopped is an undisputed fact, much less, that she was lawfully stopped as a matter of law. It is not clear that the plaintiff was not contributorily negligent with respect to the accident. The mere fact that Sergeant Prantle looked to the left is not an admission of liability. See Andre v. Pomeroy, 35 N.Y.2d 361, 368, 362 N.Y.S.2d 131, 136, 320 N.E.2d 853 (1974) ("Moreover, it is not true that always, as a matter of law, an automobile operator's momentary glance away from the road is not the act of a reasonable prudent driver."). In addition, as set forth above, it cannot fairly be said that the issue of whether the plaintiff was lawfully stopped is not in dispute. If the plaintiff was not lawfully stopped, that fact may support a jury determination as to the plaintiff's possible contributory negligence. Finally, the Court notes "that it is very rare indeed that the issue [of liability for negligence] is not one of fact for the jury." Id. The Court finds that this case does not present one of those rare instances.
2. Serious Injury
The plaintiff also claims that she is entitled to a grant of summary judgment on the issue of whether she sustained a serious injury. The plaintiff argues that the testimony of her expert, Dr. Rubinovich, "conclusively" establishes that she has sustained a serious injury within the meaning of § 5102(d) of New York's no-fault insurance law. The plaintiff cites Bates v. Peeples, 171 A.D.2d 635, 566 N.Y.S.2d 659 (2d Dept. 1991), in support of her argument in favor of summary judgment, as a very similar case factually. However, Bates, in fact supports the exact contrary position to that of the plaintiff.
In Bates, the appellate court affirmed a lower court's denial of summary judgment on the issue of whether the plaintiff had suffered a serious injury. On facts similar to this case, the appellate court stated that "the [trial court] properly concluded that there were issues of fact as to whether the plaintiff had suffered a "serious injury" within the meaning of the Insurance Law (Insurance Law § 5102[d]; see, Lopez v. Senatore, 65 N.Y.2d 1017, 494 N.Y.S.2d 101, 484 N.E.2d 130; Petrone v. Thornton, 166 A.D.2d 513, 561 N.Y.S.2d 49; Morsellino v. Frankel, 161 A.D.2d 748, 556 N.Y.S.2d 103; Lazarre v. Kopczynski, 160 A.D.2d 772, 553 N.Y.S.2d 488; Conde v. Eric Serv. Corp., 158 A.D.2d 651, 552 N.Y.S.2d 121; Healea v. Andriani, 158 A.D.2d 587, 551 N.Y.S.2d 554; Partlow v. Meehan, 155 A.D.2d 647, 548 N.Y.S.2d 239; Robbie v. Ledeoux, 146 A.D.2d 764, 537 N.Y.S.2d 72; Hughes v. Poulin, 144 A.D.2d 846, 534 N.Y.S.2d 734; Swenning v. Wankel, 140 A.D.2d 428, 528 N.Y.S.2d 130)." Bates, 566 N.Y.S.2d at 660. Given Bates, the weight of authority on which it rests, and the factual similarity with the instant case, the Court finds that there is a question of fact as to the existence of a serious injury. Accordingly, the Court denies plaintiff's cross-motion.
In sum, the Court finds that there is a question of fact for the jury as to the issue of liability and the issue of whether the plaintiff has sustained a serious injury within the meaning of New York's no-fault law, and therefore, DENIES defendant's motion to dismiss pursuant to or for summary judgment, and DENIES plaintiff's cross-motion for summary judgment.
IT IS SO ORDERED.
Dated at Binghamton, New York
October , 1995
Thomas J. McAvoy
Chief U.S. District Judge