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April 13, 2004.

MOON P. HONG and JUNG A. HONG, Plaintiffs, -against- BRIAN MAHER, LUIGI BENVIN and Versuslaw BENVIN, Defendants

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.

 Prior Proceedings

  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 Court.

  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. 1989)).

 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 1999).

  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. Weiderman, ...

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