The opinion of the court was delivered by: ROBERT SWEET, Senior District Judge
Defendants Luigi Benvin and Lois Benvin (the "Benvins") have moved
for summary judgment, pursuant to Fed.R.Civ.P. 56, to dismiss the
complaint of plaintiffs Moon P. Hong and Jung A. Hong ("Plaintiffs"), to
dismiss the cross-claim of defendant Brian Maher ("Maher"), and for
Rule 11 monetary sanctions against the Plaintiffs for the maintenance of a
frivolous action. The Plaintiffs have cross-moved for partial summary
judgment against Maher. For the reasons set forth below, the Benvins'
motion for summary judgment is granted, their motion for sanctions is
denied, and Plaintiffs' cross-motion is denied.
Plaintiffs commenced this action for personal injuries on September 30,
2002. On November 18, 2002, the Benvins filed a cross-claim against
Maher, and on November 22, 2002, Maher filed a cross-claim against the
Benvins. The Benvins filed their summary judgment motion on October 27,
2003. Plaintiffs filed their cross-motion on November 17, 2003. After
submission of briefs, oral argument was heard on the motion on January
21, 2004, at which time the motion was deemed fully submitted.
Facts The following facts are taken from the parties' affirmations, exhibits
and briefs and, as required, are construed in the light most favorable to
the non-movant, as applicable. They do not constitute findings of fact by
The Plaintiffs allege that while traveling upon the entrance ramp to
the East Harlem River Drive in New York City on Sunday, November 26,
2000, sometime between 4:30 and 5:00 PM, the Benvins' vehicle suddenly
stopped in front of the Plaintiffs' vehicle, whereupon Plaintiff Moon
Hong applied his brakes and likewise stopped suddenly with approximately
a foot between the two cars. Luigi Benvin testified that he was traveling
at an approximate speed of two miles per hour in the period prior to the
impact. It is disputed, however, whether Benvin's vehicle was moving at
the time of impact, or was stopped in traffic. Thereafter, Plaintiffs
allege that Maher's vehicle impacted the back of Plaintiffs' vehicle,
causing Plaintiffs' vehicle to strike the rear of the Benvins' vehicle.
Maher disputes this account, contending that Plaintiffs' vehicle struck
the Benvins prior to Maher's impact with the Plaintiffs. The road was
described as wet by the Plaintiffs and as damp by Maher.
Summary judgment is granted only if there is no genuine issue of
material fact, and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); see
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986);
Silver v. City Univ., 947 F.2d 1021, 1022 (2d Cir. 1991);
see generally 11 James Wm. Moore, et al.,
Moore's Federal Practice § 56.11 (3d ed. 1997 & Supp.
2004). The court will not try issues of fact on a motion for summary
judgment, but, rather, will determine "whether the evidence presents a
sufficient disagreement to require submission to a jury or whether it is
so one-sided that one party must prevail as a matter of law."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986).
"The party seeking summary judgment bears the burden of establishing
that no genuine issue of material fact exists and that the undisputed
facts establish her right to judgment as a matter of law."
Rodricruez v. City of New York, 72 F.3d 1051, 1060-61 (2d Cir.
1995). In determining whether a genuine issue of material fact exists, a
court must resolve all ambiguities and draw all reasonable inferences
against the moving party. Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986); Gibbs-Alfano v.
Burton, 281 F.3d 12, 18 (2d Cir. 2002). Thus, "[s]ummary judgment
may be granted if, upon reviewing the evidence in the light most
favorable to the non-movant, the court determines that there is no
genuine issue of material fact and the movant is entitled to judgment as
a matter of law." Richardson v. Selsky, 5 F.3d 616, 621 (2d
Cir. 1993). A material fact is one that would "affect the outcome of the suit under
the governing law," and a dispute about a genuine issue of material fact
occurs if the evidence is such that "a reasonable jury could return a
verdict for the nonmoving party." Anderson, 477 U.S. at 248;
R.B. Ventures, Ltd. v. Shane, 112 F.3d 54, 57 (2d Cir. 1997).
The Court is "to grant summary judgment where the nonmovant's evidence is
merely colorable, conclusory, speculative or not significantly
probative." Schwimmer v. Kaladiian, 988 F. Supp. 631, 638
(S.D.N.Y. 1997) (citing Anderson, 477 U.S. at 249-50). Further,
"summary judgment is `highly unusual' in a negligence case, because such
a case requires a determination of the reasonableness of a party's
conduct, and `the assessment of reasonableness is generally a factual
question to be addressed by the jury.'" Maizous v. Garaffa,
2002 WL 1471556, at *3 (E.D.N.Y. Apr. 30, 2002) (quoting King v.
Crossland Sav. Bank, 111 F.3d 251, 259 (2d Cir. 1997)). Nonetheless,
"the mere fact that a case involves a claim of negligence does not
preclude a granting of summary judgment." Id. (quoting
Cumminsky v. Chandris, S.A., 719 F. Supp. 1183, 1186 (S.D.N.Y.
Summary Judgment is Granted in Favor of the Benvins
The Benvins argue that because Plaintiffs contacted them in the rear, a
presumption of negligence on the part of the Plaintiffs is established
which imposes a duty of explanation on the Plaintiffs. The Benvins contend that a short stop by the
Benvins is insufficient to rebut the inference of negligence.
Under New York law,*fn1 a rear-end collision establishes a prima facie
case of liability against the rear vehicle and imposes a duty of
explanation on the operator of that vehicle. Sekuler v. Limnos Taxi,
Inc., 264 A.D.2d 389, 389, 694 N.Y.S.2d 100, 101 (2d Dep't 1999);
Itingen v. Weinstein, 260 A.D.2d 440, 441, 688 N.Y.S.2d 582,
583 (2d Dep't 1999); Inzano v. Brucculeri, 257 A.D.2d 605, 605,
684 N.Y.S.2d 260, 260 (2d Dep't 1999); Barba v. Best Security
Corp., 235 A.D.2d 381, 381, 652 N.Y.S.2d 71, 71 (2d Dep't 1997).
This duty arises because "when the driver of an automobile approaches
another automobile from the rear, he or she is bound to maintain a
reasonably safe rate of speed and control over his or her vehicle, and to
exercise reasonable care to avoid colliding with the other vehicle."
Chepel v. Meyers, 306 A.D.2d 235, 236, 762 N.Y.S.2d 95, 97 (2d
Dep't 2003) (citing Power v. Hupart, 260 A.D.2d 458,
688 N.Y.S.2d 194 (2d Dep't 1999); Vehicle and Traffic Law § 1129(a)).
Accordingly, "[t]he operator of the moving vehicle is required to rebut
the inference of negligence created by an unexplained rear-end
collision." Lopez v. Minot, 258 A.D.2d 564, 564, 685 N.Y.S.2d 469, 470 (2d Dep't 1999) (internal citations
omitted). "If the operator cannot come forward with any evidence to rebut
the inference of negligence, the plaintiff may properly be awarded
judgment as a matter of law." Barile v. Lazzarini, 222 A.D.2d 635,
636, 635 N.Y.S.2d 694, 696 (2d Dep't 1995) (internal citations
omitted). If, however, the offending driver provides a non-negligent
explanation for the collision, the inference of negligence is overcome
and a motion for summary judgment is precluded. Riley v. County of
Broome, 256 A.D.2d 899, 899, 681 N.Y.S.2d 851, 851-852 (3d Dep't
The parties disagree whether, under New York law, an allegation that
the front vehicle stopped suddenly or abruptly constitutes a
non-negligent explanation sufficient to rebut the presumption of
negligence arising from a rear-end collision. The Benvins cite cases that
hold that such allegations are insufficient to rebut the presumption.
See, e.g., Belitsis v. Airborne Express Freight
Corp., 306 A.D.2d 507, 761 N.Y.S.2d 329, 330 (2d Dep't 2003);
Agramonte v. City of New York, 288 A.D.2d 75, 732 N.Y.S.2d 414
(1st Dep't 2001); Bando-Twomey v. Richheimer, 229 A.D.2d 554,
646 N.Y.S.2d 155, 156 (2d Dep't 1996). Plaintiffs counter with a host of
cases, drawn from an opinion by the Honorable I. Leo Glasser of the
Eastern District of New York, to support the proposition that "it is fair
to infer that the lead driver in a rear-end collision may be held
comparatively negligent if the driver stopped short or came to a sudden
stop," without needing to inquire into any explanation for the sudden stop.
Maizous, 2002 WL 1471556, at *4-5 (citing Rosa v. Colonial
Transit, Inc., 276 A.D.2d 781, 781 715 N.Y.S.2d 426, 427 (2d Dep't
2000); Martin v. Pullafico, 272 A.D.2d 305, 707 N.Y.S.2d 891
(2d Dep't 2000); Mohamed v. Town of Niskavuna, 267 A.D.2d 909,
910, 700 N.Y.S.2d 551, 552 (3d Dep't 1999); Tripp v. GELCO
Corp., 260 A.D.2d 925, 926, 688 N.Y.S.2d 829, 830 (3d Dep't 1999);
Niemiec v. Jones, 237 A.D.2d 267, 268, 654 N.Y.S.2d 163, 165
(2d Dep't 1997); DeCosmo v. Hulse, 204 A.D.2d 953, 954,
612 N.Y.S.2d 279, 281 (3d Dep't 1994); Kienzle v. McLoucrhlin,
202 A.D.2d 299, 610 N.Y.S.2d 771 (1st Dep't 1994); Marx v. Pross,
197 A.D.2d 800, 801, 603 N.Y.S.2d 84, 85 (3d Dep't 1993)). In their reply
brief, the Benvins consider each of these opinions, and others, and
conclude that they stand not for the proposition that a mere sudden or
abrupt stop is sufficient to rebut the presumption of negligence on the
part of the rear driver, but that only a needless stop will
suffice to rebut the presumption.
Without deciding whether New York law generally requires a needless
sudden stop or only the bare fact of a sudden stop in order to find
liability as a matter of law for the lead vehicle, summary judgment will
be granted in favor of the Benvins. The Benvins' vehicle was moving at
approximately "two miles an hour" in the period before the impact,*fn2
and Luigi Benvin was attempting to change lanes as a result of two vehicles that were stopped ahead of
him. Benvin Dep. at 21. Under these circumstances, neither Maher nor the
Plaintiffs may rely on the sudden stop by the Benvins' vehicle as a
non-negligent explanation in order to defeat summary judgment.
See, e.g., Ruzycki v. Baker, 301 A.D.2d 48,
50, 750 N.Y.S.2d 680, 682 (4th Dep't 2002) ("[rear] driver's failure to
anticipate and react to the slow and cautious movement of [front
driver's] vehicle is not an adequate, non-negligent explanation for the
accident.") (quoting Diller v. City of New York Police Dep't,
269 A.D.2d 143, 144, 701 N.Y.S.2d 432 (1st Dep't 2000));
Agramonte, 288 A.D.2d at 76, 732 N.Y.S.2d at 415; Johnson
v. Phillips, 261 A.D.2d 269, 271, 690 N.Y.S.2d 545, 547 (1st Dep't
1999) (the "rule [of presumption of negligence of rear vehicles] has been
applied when the front vehicle stops suddenly in slow-moving
traffic . . . and when the front car stopped after changing lanes.");
Mascitti v. Greene, 250 A.D.2d 821, 822, 673 N.Y.S.2d 206 (2d
Dep't 1998); see also Schwall v.