[*1]
Leguen v City of New York
2011 NY Slip Op 50367(U) [30 Misc 3d 1235(A)]
Decided on March 14, 2011
Supreme Court, Queens County
Kerrigan, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on March 14, 2011
Supreme Court, Queens County


Jose A. Leguen, Plaintiff,

against

The City of New York (Department of Sanitation) and Frank A. Caraballo, Defendants.




2427/09

Kevin Kerrigan, J.



Motion by plaintiff for summary judgment on the issue of liability is granted.

Plaintiff allegedly sustained injuries in an automobile accident on the Van Wyck Expressway at Linden Boulevard in Queens County on April 24, 2008, when the motor vehicle he was operating was struck in the rear by a Sanitation Department truck operated by Caraballo. Plaintiff moves for summary judgment on the issue of liability upon the ground that defendants' rear-ending of his vehicle was presumptively negligent as a matter of law.

"A rear-end collision is sufficient to create a prima facie case of liability and imposes a duty of explanation with respect to the operator of the offending vehicle" (Macauley v Elrac, Inc., 6 AD3d 584, 585 [2nd Dept 2004] [internal quotation omitted]). This general principle is most often expressed in cases where the lead vehicle was stopped or was in the process of slowing down to stop, and the [*2]courts re-phrase this general principle in terms of said specific fact pattern by stating that a rear-end collision with a stopped or stopping vehicle establishes a prima facie case of liability with respect to the driver of the rearmost vehicle, absent a non-negligent explanation (see Chepel v Meyers, 306 AD2d 235 [2nd Dept 2003]; Mohan v Puthumana, 302 AD2d 437 [2nd Dept 2003]; Filippazzo v Santiago, 277 AD2d 419 [2nd Dept 2000]).

Plaintiff avers in his affidavit in support of the motion, "At the time of the accident, my vehicle was stopped and it was struck in the rear without any warning." Plaintiff does not annex to his moving papers copies of either his 50-h hearing transcript or Caraballo's deposition transcript. He only annexes the aforementioned affidavit, as well as several non-consecutive pages of Caraballo's deposition transcript and a copy of the police accident report. The incomplete excerpts from a deposition transcript are not in admissible form and the police accident report constitutes inadmissible hearsay and may not be considered. Nevertheless, his affidavit does constitute evidence to support the granting of summary judgment.

In opposition, however, defendants submit plaintiff's 50-h transcript as evidence in support of their argument that there is no presumption of negligence under the facts of this case and also submit Caraballo's deposition transcript as evidence that even if there were a presumption of negligence, Caraballo's deposition testimony presents a non-negligent explanation for the rear-ending of plaintiff's vehicle. Defendants' arguments are without merit. Plaintiff's 50-h testimony does not establish that the presumption of negligence does not apply to the facts of this case and Caraballo's deposition testimony does not set forth a non-negligent explanation so as to raise an issue of fact to defeat the granting of summary judgment.

Defendants argue that there should be no presumption of negligence in this case because the presumption applies only where the lead vehicle was stopped or stopping, and they submit plaintiff's 50-h transcript as proof that he did not stop prior to or at the moment of collision. Defendants' also argue that plaintiff's affidavit in which he states that he was stopped must be disregarded because it contradicts his prior testimony at his 50-h hearing in which he stated that he was moving at the time of being struck in the rear.

Plaintiff testified at his 50-h hearing that he did not stop prior to the moment of impact, that he was moving at approximately 15-20mph at the point of impact, that he observed defendants' Sanitation truck one car length behind him prior to the impact and that he tried to move out of its way but could not because there [*3]was only one lane and he tried to avoid a piece of metal that had fallen off a vehicle in front of him.

Notwithstanding that plaintiff's averment that he was stopped when he was struck seemingly contradicts his prior 50-h testimony that he was moving when he was struck, defendants themselves acknowledge that said averment is accurate. Caraballo stated in his deposition that plaintiff had stopped seconds prior to the impact. Caraballo testified that he was five to six feet behind plaintiff when he saw plaintiff's brake lights go on. He stated that plaintiff slammed on his brakes and stopped, whereupon Caraballo applied his brakes but struck the rear end of plaintiff's vehicle. Therefore, defendants fail to raise an issue of fact as to whether plaintiff was stationary or in motion at the time of the accident. In any event, whether or not plaintiff's vehicle was in motion or stationary or stopping is irrelevant and, contrary to the contention of defendants' counsel, does not raise an issue of fact.

This Court is unaware of any controlling authority holding that a rear-end collision does not create a presumption of negligence where the lead vehicle was in motion and not stopped or in the process of stopping. Defendants merely rely upon cases, such as those cited above, that reiterate the oft-quoted principle that a rear-end collision with a stopped or stopping vehicle creates a presumption of negligence placing the burden upon the rear vehicle to rebut the presumption by offering a non-negligent explanation. However, those cases do not state, and it may not be inferred therefrom, that no presumption of negligence arises where the lead vehicle was not stopped or stopping. The reason these cases speak of the presumption in the context of stopped or stopping vehicles is because such were the facts in those cases. But the state of rest of the lead vehicles was not the critical fact in those cases that gave rise to the presumption of negligence against the driver who rear-ended them.

The presumption in rear-end cases does not arise from the act of the lead vehicle in stopping or braking, but from the duty of the driver of the vehicle behind to keep a safe distance and not collide with traffic ahead. This duty is codified by VTL 1129(a) which states, "The 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." The failure of a driver to do so constitutes negligence as a matter of law, entitling the plaintiff lead driver whose vehicle was rear-ended to summary judgment on the issue of liability in the absence of an adequate non-negligent explanation (see Inzano v Brucculeri, 257 AD2d 605 [2nd Dept 1999]; Aromando v City of New York, 202 AD2d 617 [2nd Dept 1994]).

Although a rear-end collision usually results when the lead vehicle decelerates, there is no requirement that it do so in order to impose upon a driver the duty to keep a safe distance and not collide with the vehicle in front. A rear-end collision, in and of itself, creates a presumption of negligence (see generally Macauley v Elrac, Inc., supra). Indeed, the New York Pattern Jury Instruction relating to rear-end collisions (PJI 2:82) states, in relevant part, "The plaintiff AB claims that (his, her) vehicle was struck in the rear by a vehicle driven by the defendant CD. Since AB's [*4]vehicle was struck in the rear, you must find that CD was negligent, unless CD has provided an adequate explanation that does not involve any negligence on (his, her) part." The presumption articulated therein is not conditioned upon a finding that the lead driver stopped or slowed down. Indeed, the Appellate Division, Second Department, has held that the presumption of negligence applies in a fact pattern analogous to our case.

In Inzano v Brucculeri (257 AD2d 605, supra), the defendant rear driver testified that the plaintiff lead driver stopped, while the plaintiff testified that he did not stop but was moving at the time of impact. Notwithstanding plaintiff's testimony, the Appellate Division affirmed the order of the trial court which granted plaintiff's motion for summary judgment on the issue of liability, and held merely, "The defendant Mary Brucculeri was under a duty to maintain a safe distance between her vehicle and the vehicle which she struck in the rear, operated by the plaintiff Frank Inzano (see, Vehicle and Traffic Law 1129[a]). Her failure to do so, in the absence of an adequate explanation, constituted negligence as a matter of law (see, Rebecchi v Whitmore, 172 AD2d 600)." The facts of that case are set forth in defendant's appellate brief (see 1998 WL 35177646). Thus, it is clear that the presumption of negligence in rear-end collisions applies regardless of whether the lead vehicle stopped or was in steady motion.

The case of Connors v Flaherty (32 AD3d 891 [2nd Dept 2006]), cited by plaintiff, is inapposite to the facts of our case and those in Inzano, and does not stand for the proposition that a rear-end collision does not create a presumption of negligence merely because the lead vehicle was in motion.

The plaintiff in that case was the driver of the rear vehicle and the defendant was the operator of the lead vehicle who was struck in the rear by the plaintiff. The collision occurred in the left lane of a three-lane roadway, which also had opposing lanes of traffic going in the opposite direction. The defendant moved for summary judgment dismissing the complaint against her based upon her affidavit that she was stopped at the moment of impact. Said affidavit was sufficient evidence to establish her prima facie entitlement to summary judgment on the issue of liability.

In opposition, however, the plaintiff proffered a sufficient non-negligent explanation for his rear-ending of the defendant so as to raise an issue of fact through his deposition testimony that the defendant was not stopped but cut in front of him from the center lane less than one car length in front of him and attempted to make an illegal U-turn. Under those facts, the Appellate Division, Second Department, found that the plaintiff had raised sufficient issues of fact to defeat the granting of summary judgment.

The evidence that overcame the presumption of negligence was not merely the testimony that the defendant was moving, but that she caused the accident by driving recklessly and violating the traffic regulations. In our case, in contrast, there is no allegation or evidence of reckless driving or other violations by plaintiff, merely that he was moving ahead of defendant in the same single lane of traffic. Although there was testimony that plaintiff was faced with a sudden obstruction in the road and tried to avoid it, no testimony or other evidence is shown that he performed any illegal or [*5]reckless maneuver in the process and defendants do not allege that he did. Defendants do not contend that plaintiff's alleged state of motion constituted negligence or had anything to do with the accident. Indeed, Caraballo contends that the accident occurred when plaintiff stopped short. Merely that plaintiff was ahead of defendant in the same lane of traffic and moving along does not raise an issue of fact as to any comparative negligence on plaintiff's part in causing the accident. If anything, the presumption of negligence against Caraballo is even stronger under such scenario.

As heretofore stated, almost all the reported decisions on summary judgment motions dealing with the presumption of negligence in rear-end collision cases speak of stopped or stopping vehicles because such is the usual fact pattern. It is a rare occurrence that a plaintiff's vehicle is rammed from behind while in motion and not slowing down. Even rarer is the case where the defendant rear driver admits to doing so. In such a rare case, the presumption of negligence against the rear driver founded upon his duty to maintain a safe distance and not crash into the traffic ahead is all the more clear and applicable. Defendants' contention in their opposition that the presumption of negligence does not apply because plaintiff did not stop and was not in the process of stopping (i.e., slowing down) requires the concomitant acknowledgment by them that Caraballo accelerated directly into the rear end of plaintiff's vehicle. Defendants' position that such an act is not presumptively negligent has no basis in the law or in reason.

As it is, however, the argument of defendants' counsel in this regard is both academic and disingenuous, since even if the presumption of negligence applied only with regard to stopped or stopping vehicles, Caraballo testified in his deposition that plaintiff applied his brakes and stopped before the collision.

Thus, whether or not plaintiff stopped, the presumption of negligence applies. Therefore, in order to rebut the presumption and defeat the granting of summary judgment, the burden shifted to defendants to come forward with a non-negligent explanation for the rear-ending of plaintiff's vehicle. Defendants have failed to do so.

The only excuse offered by Caraballo for colliding into the rear of plaintiff's vehicle was that plaintiff stopped short and Caraballo could not avoid colliding with him because there was only one lane of traffic. Such does not constitute an adequate non-negligent explanation.

Both plaintiff and Caraballo are in agreement in their respective testimony that Caraballo was traveling one car length or approximately five to seven feet behind plaintiff, that he struck plaintiff in the rear, that a drum brake was in plaintiff's path on the roadway and that there was only one lane of traffic because there was construction. The only testimony that differed concerned what the speed of their respective vehicles was and whether plaintiff was stopped or was moving at the time of the accident, both of which discrepancies are immaterial.

Contrary to plaintiff's estimation that he was moving at approximately 15-20 mph prior to the time of impact, Caraballo [*6]estimated that they were moving at approximately 30mph.

Caraballo also stated that plaintiff had stopped seconds prior to the moment of impact. Caraballo testified that he was five to six feet behind plaintiff when he saw plaintiff's brake lights go on. He stated that plaintiff slammed on his brakes and stopped, whereupon Caraballo applied his brakes but struck the rear end of plaintiff's vehicle.

A bare claim that the driver of the lead vehicle suddenly stopped, standing alone, is insufficient to rebut the presumption of negligence (see Ramirez v Konstanzer, 61 AD3d 837 [2nd Dept 2009]; Jumandeo v Franks, 56 AD3d 614 [2nd Dept 2008]). In their opposition, defendants cite, inter alia, Foti v Fleetwood Ride, Inc. (57 AD3d 724 [2nd Dept 2008]) for the opposite proposition, wherein the Appellate Division, Second Department, stated, "One of several nonnegligent explanations for a rear-end collision is a sudden stop of the lead vehicle" (57 AD3d, at 725 [citation and internal quotation marks deleted]).

These holdings, however, are not contradictory. Ramirez and Jumandeo state that testimony that the driver of the lead vehicle suddenly stopped, standing alone, is insufficient to rebut the presumption of negligence. In Ramirez, the defendant rear-most driver contended, in opposition to plaintiff lead-driver's motion for summary judgment, that plaintiff proceeded once the traffic light turned green but then suddenly stopped. In Jumandeo, the defendant merely contended that while she was driving two car lengths behind plaintiff on the highway at 15-20 mph, the plaintiff suddenly stopped.

In contrast, in Foti, the evidence presented was not merely that defendant stopped suddenly, but that he stopped after he was informed that he was headed in the wrong direction.

Defendants also cite Tutrani v County of Suffolk (64 AD3d 53, 59-60 [2nd Dept 2009]), and quote the following language from that decision: "[N]ot every rear-end collision is the exclusive fault of the rearmost driver. The frontmost driver also has the duty not to stop suddenly or slow down without proper signaling so as to avoid a collision" (citations and internal quotation marks omitted). In that case, however, the testimony was not merely that defendant's vehicle stopped suddenly in front of plaintiff, but that it abruptly moved into plaintiff's lane without warning, cutting off plaintiff, and then stopped suddenly.

Likewise, in the case of Klochpin v Masri (45 AD3d 737 [2nd Dept 2006]), cited by defendants, plaintiff's sudden stop was [*7]coupled with his violation of the Vehicle and Traffic Law in failing to give proper signals.

Thus, the cases that hold that a sudden stop constitutes a non-negligent explanation involve fact patterns where the sudden stop is coupled with other evidence of negligence, such as reckless driving or failing to signal.

The Second Department, in Taveras v Amir (24 AD3d 655 [2nd Dept 2005), explained the reason why a sudden stop constitutes a non-negligent explanation: "The sudden stop of a lead car is one of the non-negligent explanations of a rear-end collision ... because the operator of that car has a duty to avoid stopping suddenly without properly signaling to avoid a collision when there is opportunity to give such signal'" (id. at 657 [citations omitted]). Vehicle and Traffic Law 1163 was cited as the statutory basis for said duty to signal.

VTL 1163(a), (b) and (d) concern the use of turn lights to signal a left or right turn or a change of lanes and, thus, are inapplicable to the facts of this case.

The only sections applicable to stopped or stopping vehicles are 1163(c) and (e). VTL 1163(c) provides, "No person shall stop or suddenly decrease the speed of a vehicle without first giving an appropriate signal in the manner provided herein to the driver of any vehicle immediately to the rear when there is opportunity to give such signal." The appropriate signal to be given in such situation is the use of the vehicle's emergency flashers as described in VTL 1163(e), which provides, "The driver of a vehicle equipped with simultaneously flashing signals as provided for in subdivision eighteen-a of section three hundred seventy-five shall use such signals when the vehicle is stopped or disabled on a public highway ...The driver of a vehicle so equipped may use such signals whenever necessary to warn the operators of following vehicles of the presence of a traffic hazard ahead of the signaling vehicle, or to warn the operators of other vehicles that the signaling vehicle may itself constitute a traffic hazard, taking into account traffic and highway conditions. No person shall use such signals for any other purpose."

These sections are clearly inapplicable under the facts of this case since defendants concede that plaintiff had to stop suddenly when a drum brake fell off a vehicle into his path. Therefore, no issue of fact is presented as to whether plaintiff had an opportunity to activate his emergency flashers before stopping, since his necessity to stop was the result of a sudden, unanticipated event. [*8]

The only other signals to indicate that a driver is stopping or decelerating are the vehicle's brake lights, which Caraballo testified that he saw.

Indeed, defendants do not contend that plaintiff violated these or any other traffic regulations or did anything wrong in stopping before a sudden obstacle. On the other hand, the uncontested facts are that just prior to the accident, plaintiff and Caraballo were traveling between 15-30mph, that Caraballo was at a distance of only a few feet behind plaintiff and that, consequently, he could not stop in time to avoid colliding with plaintiff after the latter hit his brakes. Therefore, the only evidence, on this record, is that Caraballo failed to keep a safe distance and avoid colliding with the vehicle in front of him.

Therefore, defendants have failed to set forth a non-negligent explanation for the rear-ending of plaintiff's vehicle and have failed to show any evidence raising a question of fact as to any comparative negligence on the part of plaintiff so as to overcome the presumption of negligence and defeat the granting of summary judgment.

Accordingly, the motion is granted.

Dated: March 14, 2011

KEVIN J. KERRIGAN, J.S.C.