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April 5, 2004.


The opinion of the court was delivered by: CONSTANCE MOTLEY, Senior District Judge


Plaintiffs move for partial summary judgment on the issue of liability. For the reasons stated below, the motion is DENIED.


  On June 25, 1999, plaintiff Angel Mangual was a passenger in his mini-van operated by his son, Frankie Mangual, when there was a collision between his vehicle and an eighteen wheel tractor trailer operated by defendant Alex Morris Pleas, Jr., and owned by Pleas's business, defendant Miss Lindsay Trucking. The collision took place at approximately 10:00 p.m. after the parties had crossed the George Washington Bridge at the intersection of the Cross Bronx Expressway and the Major Deegan Expressway. Dep. of A. Mangual, at 18-22. According to plaintiff Mangual, his vehicle was traveling in the right lane of traffic immediately in front of defendant Pleas's tractor trailer. Dep. of A. Mangual, at 24-26. As defendant Pleas passed Mangual's vehicle and entered into the left lane, defendant's right front bumper made contact with the left rear portion of Mangual's vehicle, pushing it to the right. Id. The Mangual vehicle was moving at the time of contact and it continued to travel without stopping even after the collision. Id. By contrast, defendant Pleas avers that he was driving in the middle lane of traffic when Mangual's vehicle, in an attempt to pass defendant, shot in front of him and sideswiped the right front of Pleas's vehicle with the left rear of Mangual's vehicle. Dep. of A. Pleas Jr., at 29-36. The police accident report reflects the dispute between the parties, stating that Mangual alleged that defendant Pleas's vehicle hit the rear of his vehicle when all of the Expressway's lanes merged into one lane, while Pleas maintained that the Mangual vehicle cut Pleas off and hit Pleas. Pl.'s Ex. G. The report identifies the point of impact and most of the damage as occurring along the rear lefthand side panel of plaintiff's vehicle. Id. The report also includes a diagram depicting the two vehicles at approximately an 130 degree angle, with the Mangual vehicle angled in front of the Pleas vehicle and the Pleas vehicle traveling straight-on. The Mangual vehicle appears to be merging from the right, with its egress into Pleas's lane guided by traffic cones along the right side of the roadway. Id. Pursuant to the diagram, the point of contact between the two vehicles is the right front of the Pleas vehicle with the rear left side of Mangual's vehicle. Id.

  After the accident, plaintiff received chiropractic therapy for nine months due to alleged accident-related injuries in his neck and back. Dep. of A. Mangual, at 44-48; Pl.'s Ex. H. He settled his claim against Frankie Mangual for $20,000 in March of 2001. Def.'s Ex. 1. In June of 2002, plaintiff's Angel Mangual and his wife Jenny Mangual filed this action against defendants. In essence, they charge defendants with negligence, seeking damages in the amount of two million dollars for Angel Mangual's injuries and five hundred thousand dollars for Jenny Mangual for loss of companionship, services, and expenditures stemming from the collision. Pl.'s Ex. A.


  Plaintiffs move for partial summary judgment on the issue of liability on the grounds that 1) plaintiff Angel Mangual was an innocent passenger at the time of the accident, and 2) defendant Pleas rear-ended plaintiff Angel Mangual's vehicle and is therefore presumed liable. plaintiff's further aver that because Jennie Mangual has a derivative claim, she is also entitled to summary judgment on the issue of liability.


  Under Fed.R.Civ.P. 56(c), summary judgment "shall be rendered forthwith" if it is shown that "there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 323 n. 4, 106 S.Ct. 2548, 2552 n. 4 (1986). "[G]enuineness runs to whether disputed factual issues can reasonably be resolved in favor of either party, [while] materiality runs to whether the dispute matters, i.e., whether it concerns facts that can affect the outcome under the applicable substantive law." Mitchell v. Washingtonville Cent. Sch. Dist., 190 F.3d 1, 5 (2d Cir. 1999) (internal quotations and citations omitted). In order to prove that a genuine issue of material fact exists, a plaintiff "may not rest upon the mere allegations or denials of the pleading[s]," but must by affidavit or otherwise "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). "Conclusory statements, conjecture or speculation by the party resisting the motion will not defeat summary judgment." Kulak v. City of New York, 88 F.3d 63, 71 (2d Cir. 1996).

  Courts must resolve all ambiguities and draw all reasonable factual inferences in favor of the non-moving party. See Nora Beverages, Inc. v. Perrier Group of Am., Inc., 164 F.3d 736, 742 (2d Cir. 1998). The moving party bears the initial burden of demonstrating an absence of genuine issues of material fact. See Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997). If the initial burden is met, the non-moving party "must produce specific facts indicating that a genuine issue of fact exists. If the evidence [presented by the non-moving party] is merely colorable, or is not significantly probative, summary judgment maybe granted." Scotto Almenas, 143 F.3d 105, 114 (2d Cir. 1998) (internal quotations and citations omitted) (alteration in original).


  A plaintiff passenger in a vehicle accident is not entitled to summary judgment as a matter of right against a defendant driver on the issue of liability. Sec Martinez v. Mendon Leasing Corp., 295 A.D.2d 408, 409, 744 N.Y.S.2d 44, 45-46 (2002) (denying summary judgment to injured plaintiff passenger on liability because triable issues of fact regarding the circumstances of the accident and driver's liability); Singh v. Sanders, 286 A.D.2d 256, 257, 729 N.Y.S.2d 119, 119-120 (N.Y. App. Div. 2001) (denying summary judgment to injured plaintiff passenger on the issue of liability because there were triable issues of fact as to whether the vehicle in which he was a passenger was in good mechanical condition); Sacco. v. Phillippsen, 272 A.D.2d 889, 889, 707 N.Y.S.2d 571, 572 (N.Y. App. Div. 2000) (denying plaintiff passenger summary judgment on the issue of liability against defendant driver who struck a utility pole because whether the defendant's conduct was reasonable or whether the circumstances constituted an emergency were issues for the trier of fact); Johnson v. Phillips, 261 A.D.2d 269, 272, 690 N.Y.S.2d 545, 548 (N.Y. A.D. 1999) (injured occupants of the front vehicle in a rear-end collision case entitled to summary judgment on the issue of liability, unless the driver in the following vehicle provides an innocent explanation for the event); Mundo v. City of Yonkers, 249 A.D.2d 522, 672 N.Y.S.2d 128 (N.Y. App. Div. 1998) (because there were issues of fact regarding the circumstances of an accident, injured passengers not entitled to summary judgment against defendant drivers on the issue of liability).

  A plaintiff makes out a prima facie case of negligence with proof that defendant's vehicle rear-ended plaintiff's vehicle, or where there is no dispute to that effect. See Sega v. Ryder, 287 A.D.2d 848, 850, 731 N.Y.S.2d 282, 284 (N.Y. App. Div. 2001) (plaintiff established a prima facie case of negligence where there was "no dispute that defendant rear-ended plaintiff's stopped vehicle); Moustapha v. Riteway Intern. Removal, Inc., 283 A.D.2d 175, 724 N.Y.S.2d 52 (N.Y. A.D. 2001) (plaintiff made out a prima facie case against defendant driver by proof that defendant's vehicle struck plaintiff's from behind). Here, however, the parties' conflicting accounts of the accident coupled with the police report showing the point of contact as the left side panel of the Mangual vehicle creates a credible dispute as to whether Pleas rear-ended the Mangual vehicle or the Mangual vehicle hit Pleas. Whereas New York courts have recognized that "while it is true that negligence cases do not generally lend themselves to resolution by a motion for summary judgment, such a judgment may be granted where the facts clearly point to the negligence of one party without any culpable conduct by the other," the record before the court suggests that the accident could have occurred in many ways, one version of which suggests that Pleas was nonnegligent. See Burns v. Gonzalez, 307 A.D.2d 863, 865, 763 N.Y.S.2d 63 (N.Y. App. Div. 2003) (granting summary judgment where none of the possible versions of the collision suggested negligence on the part of the movant). Sharp conflicts of evidence such as the ones here regarding the circumstances of a vehicle collision present questions of fact and credibility that properly belong to the jury. See Campbell v. Driscoll, 190 A.D.2d 771, 771-72, 593 N.Y.S.2d 549, 550 (N.Y. App. Div. 1993) (defendant claimed that collision occurred when plaintiff's vehicle suddenly changed lanes without warning and the plaintiff stated that she never changed lanes and defendant's vehicle hit her vehicle in the rear). See also Chepel v. Meyers, 306 A.D.2d 235, 762 N.Y.S.2d 95 (N.Y. App. Div. 2003) (defendant driver's claim that plaintiff passenger's vehicle suddenly came to a dead stop before the defendant rear-ended the vehicle raised a question of fact for the jury to determine by weighing the credibility of the parties). Specifically, defendant's deposition testimony that plaintiff's vehicle hit him when it suddenly cut into his lane coupled with the police accident report depicting the collision as occurring along the side of plaintiff's vehicle raises a triable question of fact regarding liability. See Hussain v. Manhattan Cable T.V., 308 A.D.2d 433, 434, 764 N.Y.S.2d 127, 127-128 (N.Y. App. Div. 2003) (driver of lead vehicle not entitled to judgment of a matter of law on the issue of liability where driver of following vehicle raised question of fact as to whether the lead vehicle cut him off); Burchette v. Aklah, 2002 WL 31663225, at 1 (N.Y. App. Term., Nov. 14, 2002) (summary judgment denied on the issue of liability where the parties presented conflicting accounts as to whether the lead vehicle improperly changed lanes and cut in front of the rear-ending vehicle).

  Even if the court were to assume, however, that defendant rear-ended the Mangual vehicle, this would not end the court's inquiry. Under New York law, a rear-end collision establishes a prima facie case of liability against the following vehicle, thereby requiring the defendant to rebut the inference of negligence with a nonnegligent explanation for the collision. Brown v. Brenes, 2001 WL 262683, at 2 (S.D.N.Y. Mar. 15, 2001) citing Sekuler v. Limnos Taxi, Inc., 694 N.Y.S.2d 100, 101 (N.Y. App. Div.1999).*fn1 If, however, the defendant offers such an explanation, such as mechanic failure, unavoidable skidding on wet pavement, a sudden stop of vehicle, or any other reasonable explanation, the defendant driver overcomes the inference of negligence and summary judgment is precluded. Id. citing Riley v. County of Broome, 681 N.Y.S.2d 851, 851-852 (N.Y. App. Div.1999); Power v. Hupart, 688 N.Y.S.2d 194, 195 (N.Y. App. Div.1999). Here, defendant Pleas offered the nonnegligent explanation that plaintiff's vehicle suddenly cut into his lane. This explanation rebuts the inference of negligence and creates a triable issue of fact on liability. Rozengauz v. Lok Wing Ha, 280 A.D.2d 534, 720 N.Y.S.2d 181 (N.Y. App. Div. 2001) (defendant's explanation that he rear-ended plaintiff's vehicle when it cut in front of him raised a triable issue of fact ...

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