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 ...