Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Richard Perez v. Jorge Guerrero

May 11, 2011


The opinion of the court was delivered by: Gabriel W. Gorenstein, United States Magistrate Judge


Plaintiff Richard Perez sues to recover damages for injuries sustained in an automobile accident. Perez originally filed his complaint in the Supreme Court of Bronx County. The defendant, Jorge Guerrero, removed the case to this Court pursuant to 28 U.S.C. § 1441 based on diversity of citizenship. The parties have consented to the disposition of this action by a United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). Guerrero has now moved for summary judgment. For the reasons stated below, the motion is denied.

I. BACKGROUND A. Undisputed Facts

This case arises out of an automobile accident that occurred on Morningside Avenue in Manhattan on December 12, 2006. See Rule 56.1 Statement, dated Feb. 9, 2011 (annexed to Notice of Motion for Summary Judgment, filed Feb. 10, 2011 (Docket # 12) ("Notice of Motion")) ("Def. 56.1 Statement") ¶ ¶ 1, 8-9; Rule 56 Counterstatement of Facts, filed Mar. 15, 2011 (Docket # 15) ("Pl. 56.1 Statement") ¶ ¶ 1, 3. At a little before 4:00 p.m., Guerrero was at the intersection of 116th Street and Morningside Avenue. See Jorge Guerrero Deposition ("Guerrero Dep."), dated Oct. 29, 2010 (annexed as Ex. F to Notice of Motion) at 27, 29, 36-37; Def. 56.1 Statement ¶ 1; Pl. 56.1 Statement ¶ ¶ 1, 10. Morningside Avenue is a two-way street with two lanes of traffic in each direction. See Guerrero Dep. at 28. Guerrero turned into the right, northbound lane of Morningside Avenue. See id. at 29; Pl. 56.1 Statement ¶ 12. About "half a block" later, he switched into the left lane. Guerrero Dep. at 29-30; see Pl. 56.1 Statement ¶ 12.

Perez was in a car behind Guerrero, and Perez also turned right from 116th Street into the right lane of Morningside Avenue. See Perez Deposition, dated Oct. 29, 2010 (annexed as Ex. E to Notice of Motion) ("Perez Dep.") at 32, 46, 48-49; Pl. 56.1 Statement ¶ ¶ 21, 24. Perez remained in the right lane until the accident, when the front of Perez's vehicle came into contact with the rear of Guerrero's vehicle. See Def. 56.1 Statement ¶ ¶ 2, 5, 6, 9, 11; Pl. 56.1 ¶ ¶ 26-29; Perez Dep. at 62-63, 67, 157-58.

B. The Instant Proceedings

Perez commenced this action in New York Supreme Court, Bronx County. See Verified Complaint, dated Oct. 1, 2009 (annexed as Ex. A to Notice of Removal, filed May 27, 2010 (Docket # 1) ("Notice of Removal")). On May 27, 2010, Guerrero removed the case to this Court. See Notice of Removal. Following discovery, Guerrero moved for summary judgment on liability pursuant to Fed. R. Civ. P. 56.*fn1


Rule 56(a) of the Federal Rules of Civil Procedure states that summary judgment is appropriate when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(a). A genuine issue of material fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

In determining whether a genuine issue of material fact exists, "[t]he evidence of the non-movant is to be believed" and the court must draw "all justifiable inferences" in favor of the nonmoving party. Id. at 255 (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59 (1970)). Nevertheless, once the moving party has shown that there is no genuine issue as to any material fact and that it is entitled to a judgment as a matter of law, "the nonmoving party must come forward with 'specific facts showing that there is a genuine issue for trial,'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting Fed. R. Civ. P. 56(e)) (emphasis in original), and "may not rely on conclusory allegations or unsubstantiated speculation," Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998) (citing cases). In other words, the non-movant must offer "concrete evidence from which a reasonable juror could return a verdict in his favor." Anderson, 477 U.S. at 256. Where "the nonmoving party bears the burden of proof at trial, summary judgment is warranted if the non-movant fails to make a showing sufficient to establish the existence of an element essential to [its] case." Nebraska v. Wyoming, 507 U.S. 584, 590 (1993) (internal quotation marks and citation omitted) (alteration in original). Thus, "[a] defendant moving for summary judgment must prevail if the plaintiff fails to come forward with enough evidence to create a genuine factual issue to be tried with respect to an element essential to its case." Allen v. Cuomo, 100 F.3d 253, 258 (2d Cir. 1996) (citing Anderson, 477 U.S. at 247-48).

Because the parties have relied on New York State law in presenting their arguments to this Court, we assume that New York law applies to this diversity action. See, e.g., Merrill Lynch Interfunding, Inc. v. Argenti, 155 F.3d 113, 121 n.5 (2d Cir. 1998) (citation omitted).


Guerrero argues that he cannot be liable to Perez because he was hit from behind. Under New York law, "a driver is expected to drive at a sufficiently safe speed and to maintain enough distance between himself and cars ahead of him so as to avoid collisions with stopped vehicles, taking into account the weather and road conditions." Malone v. Morillo, 6 A.D.3d 324, 325 (1st Dep't 2004) (internal quotation marks and citations omitted). This duty is codified in New York Vehicle and Traffic Law § 1129(a), which provides that "[t]he driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon and the condition of the highway." Id. New York courts have held that "any rear-end collision establishes a prima facie case of negligence on the part of the rear-ending driver." De La Cruz v. Ock Wee Leong, 16 A.D.3d 199, 200 (1st Dep't 2005) (citing Johnson v. Phillips, 261 A.D.2d 269, 271 (1st Dep't 1999)). "When such a rear-end collision occurs, the injured occupants of the front vehicle are entitled to summary judgment on liability, unless the driver of the following vehicle can provide a non-negligent explanation, in evidentiary form, for the collision." Johnson, 261 A.D.2d at 271 (citing cases). The duty of providing an explanation is imposed upon the operator of the moving vehicle "because he or she is in the best position to explain whether the collision was due to a mechanical failure, a sudden stop of the vehicle ahead, an unavoidable skidding on a wet pavement, or some other reasonable cause." Leal v. Wolff, 224 A.D.2d 392, 393 (2d Dep't 1996) (citation omitted). This same presumption and burden-shifting is followed in federal courts applying New York law. See, e.g., Hyacinthe v. U.S., 2009 WL 4016518, at *7 (E.D.N.Y. Nov. 19, 2009); Krynski v. Chase, 707 F. Supp. 2d 318, 323 (E.D.N.Y. 2009); Moskovitz v. Dean, 2001 WL 1442674, at *1 (S.D.N.Y. Nov. 15, 2001).

The parties do not dispute that the vehicle operated by Perez came into contact with the rear end of the vehicle operated by Guerrero. See Def. 56.1 Statement ΒΆ 6; Perez Dep. at 67. Thus, Guerrero has made out a prima facie claim of negligence. See, e.g., De La Cruz, 16 A.D.3d at 200. The remaining question is whether Perez has provided a ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.