October 10, 2013
Phillip Maillard, Plaintiff,
New York City Transit Authority, METROPOLITAN TRANSPORTATION AUTHORITY, EMPIRE PARATRANSIT CORP., and RHONE AUGUSTINE, Defendants. NEW YORK CITY TRANSIT AUTHORITY, METROPOLITAN TRANSPORTATION AUTHORITY, EMPIRE PARATRANSIT CORP., and RHONE AUGUSTINE, Third-Party Plaintiffs, RICARDO HUSBANDS, FRANK DONALDS and KARIEMAH SHAH, Third-Party Defendants.
For Defendants/Third-Party Plaintiffs Zaklukiewicz, Puzo & Morrissey, LLP by: Eric R. Amidon, Esq.
For Third-Party Defendants Frank Donalds and Kariemah Shah Morris Duffy Alonso & Faley By: Gail S. Karan, Esq.
For Third-Party Defendant Ricardo Husband Kay & Gray By: Margaret G. Blascetta, Esq. And Theresa P. Mariano, Esq.
MICHAEL D. STALLMAN, J.
This action arises out a chain of motor vehicle collisions that allegedly occurred on December 3, 2010, involving four vehicles on the FDR Drive in Manhattan: a 2003 Honda CRV allegedly operated by Frank Donalds; a 2005 Toyota Camry allegedly owned and operated by Ricardo Husband; a 1999 Chrysler allegedly operated by Phillip Maillard; and a 2008 Ford allegedly operated by Rhone Augustine.
Donalds and Shah now move for summary judgment dismissing the third-party complaint and all cross claims as against them, on the ground that Donalds's vehicle was stopped in the left northbound lane of the FDR when his vehicle was rear-ended. Husband also cross-moves for judgment dismissing the third-party complaint and all cross claims as against him, on the ground that Husband's vehicle was also stopped when he was rear-ended.
Maillard commenced this action against defendant Rhone Augustine and defendants New York City Transit Authority, Metropolitan Transportation Authority, Empire Paratransit Corp., the alleged owners of the 2008 Ford (collectively, the NYCTA defendants). The NYCTA defendants impleaded Husband (sued herein as Husbands), Donalds, and Kariemah Shah, the alleged owner of the 2005 Toyota Camry.
Donalds and Shah asserted three cross claims for apportionment, contribution, and common-law indemnification against all defendants and third-party co-defendant Husband, and a counterclaim for apportionment or indemnification against the NYCTA defendants. (Karan Affirm., Ex A [Answer to Third Party Complaint with Cross Claims and Counterclaim].) Husband did not plead any cross claims or counterclaims. (Blascetta Affirm., Ex A. [Answer to Third-Party Complaint].)
Donalds, Husband, Maillard, and Augustine all testified at their depositions that their vehicles were traveling on the northbound FDR Drive, in the far left lane. (Karan Affirm., Ex D [Maillard EBT], at 29; Karan Affirm., Ex F [Augustine EBT], at 14; Karan Affirm., Ex H [Husband EBT], at 12; Karan Affirm., Ex J [Donalds EBT], at 11.) It is undisputed that Donalds's vehicle is the lead vehicle in the chain, followed by Husband's vehicle, then Maillard's vehicle, and finally Augustine's vehicle.
Donalds testified at his deposition that the traffic conditions were "[r]eally slow", because "[t]here was an accident up ahead." (Donalds EBT, at 13.) According to Donalds, he came to a complete stop behind the accident scene, and he felt an impact to the rear of his vehicle "maybe five seconds" after his complete stop. (Id. at 15.) Donalds stated that his vehicle was propelled forward into the vehicle in front of him, and that he felt one impact to his vehicle. (Id. at 16-17.)
Husband testified at his deposition that traffic on the FDR Drive was light, and that "a small SUV type" was in front of his vehicle. (Husband EBT, at 14.) Husband stated that he saw the brake light of the SUV, and then Husband began to brake. (Id. at 18.) According to Husband, the small SUV came to a stop, and Husband's vehicle stopped too. (Id. at 18-19.)
Husband then testified that he felt an impact to the rear of his vehicle "about five seconds after that or so" (Id. at 21), and then he felt another rear impact. (Id. at 22.) Husband stated the first impact caused his vehicle to move forward, but his vehicle did not make contact with the car in front of him; the second impact "is the one that actually seems to make my car — the front of my car touched the rear — you know, the spare tire of the vehicle in front of me." (Id. at 23.) When asked about the damage to the rear of his vehicle, Husband answered, "The vehicle in back of me was — got a slight end and lift my bumper up, so it was on the — the front of that vehicle was under my bumper." (Id. at 27.)
Maillard testified at his deposition that the vehicle in front of him was a light brown Honda, and that "[t]raffic was flowing nicely." (Maillard EBT, at 31-32.) According to Maillard, he was about a car length and a half behind the Honda, and he applied the brakes "when I saw the brake lights on the car in front of me go on." (Maillard EBT, at 33.) Maillard testified that he was traveling between 40 and 45 miles an hour. (Id.)
Maillard was asked to describe the manner in which the Honda came to a stop, i.e., "Was it a sudden stop, was it a slow stop, something else?" (Maillard EBT, at 34.) Maillard answered, "At first it looked like a slow stop, he was applying his brakes to slow down." (Id. at 34-35.) According to Maillard, the front of his vehicle made light contact with the rear of the Honda, and "less than second" later he felt an impact to the rear of his vehicle. (Id. at 36-37.) Maillard testified that the impact pushed his vehicle into the Honda, and "the Honda ended up on my hood." (Id. at 39-40.)
Augustine testified at his deposition that he was employed by Empire Paratransit as an Access-A-Ride driver (Augustine EBT, at 7), and that he was driving a van, a Ford Econoline. (Id at 15, 44.) Augustine stated that the front bumper of his vehicle made contact with the rear bumper of a Chrysler sedan. (Id. at 15.) According to Augustine, he saw the brake lights of a Chrysler turn on, and "[m]aybe two seconds" passed from the time when Augustine saw the brake lights turn on before contact. (Id. at 16.)
According to Augustine, the approximate speed of his vehicle was 40 miles per hour immediately prior to seeing the brake lights. (Id. at 16.) When asked about the distance between the front of his bumper from the rear of the Chrysler, Augustine testified as follows:
"Q. Approximately 30 seconds before the impact, how far was the front of your bumper from the rear of the Chrysler?
A. Between seven and ten car lengths.
Q. Approximately ten seconds before the impact, how far was the front of your bumper from the rear of the Chrysler?
A. I would say the same, between seven and ten.
Q. Approximately five seconds before the impact, how far was the front of your bumper from the rear of the Chrysler?
A. The same. I kept about the same distance.
Q. What was the distance four seconds away?
A. Four seconds? (Pause.)
A. Maybe... I'm not sure. About seven.
Q. How about three seconds?
A. I'm not sure.
Q. How about two seconds?
A. Between seven and five.
Q. Five to seven?
A. I don't know. Between there, somewhere around there."
(Id. at 17-18.) When asked to describe the manner in which the Chrysler stopped, Augustine answered, "Abruptly" and "All of a sudden." (Id. at 19.)
The standards for summary judgment are well-settled.
"On a motion for summary judgment, facts must be viewed in the light most favorable to the non-moving party. Summary judgment is a drastic remedy, to be granted only where the moving party has tender[ed] sufficient evidence to demonstrate the absence of any material issues of fact, and then only if, upon the moving party's meeting of this burden, the non-moving party fails to establish the existence of material issues of fact which require a trial of the action. The moving party's [f]ailure to make [a] prima facie showing [of entitlement to summary judgment] requires a denial of the motion, regardless of the sufficiency of the opposing papers."
(Vega v. Restani Constr. Corp., 18 N.Y.3d 499, 503  [internal citations and quotation marks omitted].)
Donalds and Shah argue that Donalds cannot be held liable for the motor vehicle collisions because he testified that he came to a stop due to an accident in front of his vehicle, and that he was stopped when he was rear-ended by Husband's vehicle. Husband argues that he did not cause or contribute to the multi-vehicle collision because his vehicle was stopped when he was rear-ended by Maillard's vehicle.
Maillard does not oppose either Donalds and Shah's motion or Husband's cross motion. The NYCTA defendants assert that Donalds's vehicle suddenly stopped for no apparent reason, and that Husband was following too closely to Donalds's vehicle, citing Sanford v. Stillitano (241 A.D.2d 489 [2d Dept 2010].)
"It is well settled that a rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the driver of the rear vehicle, and imposes a duty on the part of the operator of the moving vehicle to come forward with an adequate nonnegligent explanation for the accident."
(Cabrera v. Rodriguez, 72 A.D.3d 553 [1st Dept 2010]; Avant v. Cepin Livery Corp., 74 A.D.3d 533 [1st Dept 2010]; see also Dattilo v. Best Transp. Inc. 79 A.D.3d 432, 433 [1st Dept 2010][ A rear-end collision with a vehicle that is slowing down establishes a prima facie case of negligence on the part of the driver of the rear vehicle].) As a corollary, a presumption arises that no negligence on the part of the driver of the lead vehicle contributed to the collision. (Soto-Maroquin v. Mellet, 63 A.D.3d 449, 450 [1st Dept 2009].)
Donalds's testimony that his vehicle was at a complete stop when his vehicle, the lead vehicle, was rear-ended establishes Donalds and Shahs' prima facie entitlement to summary judgment dismissing the third-party complaint and cross claims as against them as a matter of law. (See Ianello v. O'Connor, 58 A.D.3d 684, 686[2d Dept 2009] [actions of driver of lead vehicle were not proximate cause of collisions]; Hyeon Hee Park v. Hi Taek Kim, 37 A.D.3d 416, 417 [2d Dept 2007].)
Husband's testimony that his vehicle was also at a complete stop when Husband's vehicle was rear-ended and propelled into Donalds's vehicle also demonstrates Husband's prima facie entitlement to summary judgment as a matter of law. (See Arrastia v. Sbordone, 225 A.D.2d 375 [1st Dept 1996][defendant who brought her vehicle to a complete stop prior to the accident was thereafter unexpectedly forced into plaintiff's car by another, unrelated vehicle was neither negligent nor a proximate cause of plaintiff's purported injuries]; Malak v. Wynder, 56 A.D.3d 622, 623 [2d Dept 2008]["Evidence that a vehicle was rear-ended and propelled into the stopped vehicle in front of it may provide a sufficient non-negligent explanation" to rebut presumption of negligence].)
The NYCTA defendants fail to raise a triable issue of fact warranting denial of summary judgment for Donalds and Shah. Although Donalds's testimony as to the flow of traffic on the FDR drive appears to differ from the testimony of the other drivers, the NYCTA defendants essentially argue that Donalds suddenly stopped on the FDR Drive for no reason. To the extent that the NYCTA defendants assert that Donalds did not, in fact, bring his vehicle to a stop due to another motor vehicle accident up ahead, Augustine testified at his deposition as follows:
"Q. Did you happen to notice if there were any other accidents on the FDR northbound in the left lane other than yours?
Q. Where was that accident located?
A. It was maybe from the first car, ten or 15 car lengths in front or maybe more.
Q. So if the accident you were involved in about four cars, with the first car being the very first car in that four-car chain?
A. Yes, right.
Q. The other accident was—
A. It was farther, farther out.
Q. Was it also in the left lane?
Q. Do you know how many vehicles were involve in that accident?
Q. Were both those vehicles still in the left lane, partially in the left lane or someplace else?
A. Still in the left lane.
Q. Did you notice if there were any hazard lights on on [ sic ] any of those two vehicles involved in that accident that was ahead of where you guys were?
A. No. I'm guessing there was an accident; I didn't see an accident, I just saw two vehicles stopped.
Q. When did you first notice those two other vehicles?
A. When I got out of my vehicle to speak with the other drivers."
(Augustine EBT, at 56-57.)
In any event, assuming, for the sake of argument, that Donalds suddenly stopped his vehicle, the NYCTA defendants would still fail to raise a triable issue of fact as to whether Donalds negligently operated his vehicle, or whether such alleged negligence was a substantial factor in causing the collisions.
It is true that the Appellate Division, First Department has not been consistent as to whether evidence that the lead vehicle suddenly stopped rebuts the presumption of negligence of the rear vehicle in a rear-end collision. In Cabrera, the Appellate Division, First Department unanimously stated, "[a] claim that the driver of the lead vehicle made a sudden stop, standing alone, is insufficient to rebut the presumption of negligence." (Cabrera, 72 A.D.3d at 553.) However, a year later, the Appellate Division, First Department unanimously stated in Berger v. New York City Housing Authority (82 A.D.3d 531 [1st Dept 2011]):
"It is well established that evidence of a rear-end collision with a stopped vehicle constitutes a prima facie case of negligence on the part of the operator of the moving vehicle, which may be rebutted by evidence that the vehicle in front stopped suddenly."
(Id. at 531 [emphasis supplied, internal citations omitted].)
Cabrera follows a rule cited in many First Department cases for over the past decade. (See e.g. Dicturel v. Dukureh, 71 A.D.3d 558, 559 [1st Dept 2010]; Soto—Maroquin v. Mellet, 63 A.D.3d 449, [1st Dept 2009]; Francisco v. Schoepfer, 30 A.D.3d 275 [1st Dept 2006]; Woodley v. Ramirez, 25 A.D.3d 451, 452 [1st Dept 2006]; Mullen v. Rigor, 8 A.D.3d 104 [1st Dept 2004]; see Verdejo v. Aguirre, 8 A.D.3d 63 [1st Dept 2004]; Malone v. Morillo, 6 A.D.3d 324 [1st Dept 2004]; Moustapha v. Riteway Intl. Removal, Inc., 283 A.D.2d 175 [1st Dept 2001]; Agramonte v. City of New York, 288 A.D.2d 75 [1st Dept 2001] [applying presumption where front vehicle stops suddenly in slow-moving traffic]; Mitchell v. Gonzalez, 269 A.D.2d 250, 251 [1st Dept 2000].)
Berger follows a principle implied in a handful of First Department cases over the same time period. (Cf. Somers v. Condlin, 39 A.D.3d 289 [1st Dept 2007] ["there was no evidence in the record that plaintiff had acted in such a way as to cause the accident, such as by stopping suddenly or by veering in front of defendant"]; Farrington v. New York City Tr. Auth., 33 A.D.3d 332 [1st Dept 2006] [no evidence to support driver's assertion that the vehicle in front of him had stopped suddenly, so as to rebut the presumption of the driver's negligence]; Sawhney v. Bailey, 13 A.D.3d 203 [1st Dept 2004] [denying summary judgment because "issues may arise as to whether the driver of the forward vehicle stopped or slowed suddenly"]; see Barry v. City of New York, 283 A.D.2d 300 [1st Dept 2001] [upholding jury verdict finding defendant 100% at fault, based on evidence that defendant's vehicle either stopped suddenly or failed to give a proper signal that it was already stopped in front a tow truck, which set off a chain collision].)
Last year, the Appellate Division, First Department stated in Androvic v. Metropolitan Transportation Authority (95 A.D.3d 610 [1st Dept 2012]), "In opposition, plaintiff failed to provide a nonnegligent explanation for the rear-end collision sufficient to establish an issue of fact regarding the MTA defendants' negligence. That the bus came to a sudden stop was insufficient to raise a triable issue of fact." (Id. at 610 [citing Francisco, 30 A.D.3d 275].) This year, the Appellate Division ruled in Franco v. Rolling Frito-Lay Sales, Ltd. (103 A.D.3d 543 [1st Dept 2013]), "Plaintiff's assertion that defendants' vehicle had stopped suddenly' is insufficient to rebut the presumption of his negligence." (Id., [citing Francisco, 30 A.D.3d 275].)
Androvic and Franco follow the majority of cases in the First Department that a sudden stop is not, in itself, sufficient to rebut the presumption of negligence of the following vehicle. Thus, to the extent that the NYCTA defendants could raise a triable issue of fact as to whether Donalds's vehicle suddenly stopped, such evidence is not sufficient to rebut a presumption that Donalds did not operate his vehicle negligently, or that no negligence on Donalds's part contributed to the collision. (Soto-Maroquin, 63 A.D.3d at 449.)
Therefore, Donalds and Shah's motion for summary judgment is granted, and the third-party complaint is dismissed as against them. Dismissal of the third—party complaint as against Donalds and Shah necessarily results in dismissal of Donalds and Shahs' own cross claims and third-party counterclaim for apportionment, contribution, and common-law indemnification.
As to Husband, the NYCTA defendants' reliance upon Sanford v. Stillitano (241 A.D.2d 489) is misplaced. In Sanford, the appellants' vehicle was the middle vehicle in a three-car collision on the Verrazano Narrows Bridge, and the appellants argued that they were entitled to summary judgment because their vehicle was hit from behind while lawfully stopped in traffic waiting to exit the bridge. The Appellate Division, Second Department, affirmed denial of summary judgment because "there was evidence suggesting that the appellants had been following the car driven by the defendant John Stillitano too closely and at too great a speed, and that the appellants and Stillitano stopped abruptly." (Id.) Thus, there were triable material issues of fact as to whether the appellants' vehicle had been lawfully stopped or had stopped suddenly, and material issues of fact as to the sequence of the collisions.
Sanford is inapposite because, unlike the majority of cases in the Appellate Division, First Department, the Appellate Division, Second Department has ruled that a sudden stop of the lead vehicle is a non-negligent explanation that may rebut the presumption of negligence of the following vehicle. (See e.g. Ramos v. TC Paratransit, 96 A.D.3d 924 , [2d Dept 2012]["A nonnegligent explanation may include evidence of a mechanical failure, a sudden stop of the vehicle ahead, an unavoidable skidding on wet pavement or any other reasonable cause"]; but see Robayo v. Aghaabdul, 971 N.Y.S.2d 317, ___ A.D.3d ___ [2d Dept 2013]["A claim that the driver of the lead vehicle made a sudden stop, standing alone, is insufficient to rebut the presumption of negligence"].)
Finally, the NYCTA defendants point out that Husband submitted unsigned EBT transcripts in support of his cross motion, and that Husband did not indicate whether the transcripts were ever forwarded to the deponents for their review. However, in reply, Husband submitted the signature page of Husband's EBT transcript (Blascetta Affirm. in Further Support, Ex A), and submitted the certifications of the stenographer present at the depositions. (Mariano Reply Affirm., Exs A-D.) The EBT transcripts of the Husband, Donalds, Maillard and Augustine were also submitted with Donalds and Shah's motion, and the NYCTA defendants did not object to those transcripts to being considered as part of the record. (Cf. Washington Realty Owners, LLC v. 260 Washington St, LLC, 105 A.D.3d 675, 675 [1st Dept 2013]["The record is sufficiently complete when, although the movant has not attached all of the pleadings to the motion, a complete set of the papers is available from the materials submitted"].) Indeed, the NYCTA defendants cited to the EBT transcripts annexed to Donalds and Shah's motion.
Therefore, Husband's cross motion for summary judgment is granted.
Accordingly, it is hereby
ORDERED that motion for summary judgment by third-party defendants Frank Donalds and Kariemah Shah (Motion Seq No. 001) is granted; and it is further
ORDERED that the cross motion for summary judgment by third-party defendant Ricardo Husband, sued herein as Ricardo Husbands, is granted; and it is further
ORDERED that the third-party complaint is severed and dismissed, with costs and disbursements to said third-party defendants as taxed by the Clerk of the Court, and the Clerk is directed to enter judgment accordingly in favor of said third-party defendants; and it is further
ORDERED that the cross claims and counterclaims by third-party defendants Frank Donalds and Kariemah Shah are dismissed; and it is further
ORDERED that the remainder of the action shall continue.