FILED: APPELLATE DIVISION - 1ST DEPT 10/04/2022 12:59 PM
`NYSCEF DOC. NO. 8
`RECEIVED NYSCEF: 10/04/2022
`
`2022-01726
`
`To Be Argued By:
`Brian J. Isaac
`Time Requested: 15 Minutes
`
`Bronx County Clerk’s Index No. 25861/2018E
`
`New York Supreme Court
`
`APPELLATE DIVISION — FIRST DEPARTMENT
`
`>> >>
`
`OLAYA Z. GOODMAN,
`
`against
`
`Case No.
`
`2022-01726
`
`Plaintiff-Respondent,
`
`IEH AUTO PARTS, LLC and NATHANIEL JAMES MIRANDA,
`Defendants-Appellants.
`
`BRIEF FOR PLAINTIFF-RESPONDENT
`
`POLLACK, POLLACK, ISAAC
`& DECICCO, LLP
`225 Broadway, 3rd Floor
`New York, New York 10007
`212-233-8100
`bji@ppid.com
`Appellate Counsel to:
`
`LAW OFFICES OF
`SPENCER H. HERMAN, P.C.
`Attorneys for Plaintiff-Respondent
`8002 Kew Gardens Road, Suite 5001
`Kew Gardens, New York 11415
`718-897-2282
`shhermanlaw@gmail.com
`
`Printed on Recycled Paper
`
`Of Counsel:
`
`Brian J. Isaac
`Paul H. Seidenstock
`
`
`NYSCEF DOC. NO. 8
`RECEIVED NYSCEF: 10/04/2022
`
`2022-01726
`
`To Be Argued By:
`Brian J. Isaac
`Time Requested: 15 Minutes
`
`Bronx County Clerk’s Index No. 25861/2018E
`
`New York Supreme Court
`
`APPELLATE DIVISION — FIRST DEPARTMENT
`
`>> >>
`
`OLAYA Z. GOODMAN,
`
`against
`
`Case No.
`
`2022-01726
`
`Plaintiff-Respondent,
`
`IEH AUTO PARTS, LLC and NATHANIEL JAMES MIRANDA,
`Defendants-Appellants.
`
`BRIEF FOR PLAINTIFF-RESPONDENT
`
`POLLACK, POLLACK, ISAAC
`& DECICCO, LLP
`225 Broadway, 3rd Floor
`New York, New York 10007
`212-233-8100
`bji@ppid.com
`Appellate Counsel to:
`
`LAW OFFICES OF
`SPENCER H. HERMAN, P.C.
`Attorneys for Plaintiff-Respondent
`8002 Kew Gardens Road, Suite 5001
`Kew Gardens, New York 11415
`718-897-2282
`shhermanlaw@gmail.com
`
`Printed on Recycled Paper
`
`Of Counsel:
`
`Brian J. Isaac
`Paul H. Seidenstock
`
`
`
`TABLE OF CONTENTS
`
`Page
`
`TABLE OF AUTHORITIES...........................................ii
`
`PRELIMINARY STATEMENT...........................................1
`
`FACTS...........................................................2
`
`Deposition of Plaintiff .....................................2
`
`Deposition of Nathaniel James Miranda .......................4
`
`Plaintiff’s Motion for Summary Judgment .....................6
`
`Defendants’ Opposition ......................................8
`
`Plaintiff’s Reply ..........................................10
`
`Supreme Court’s Decision ...................................10
`
`ARGUMENT.......................................................12
`SUMMARY JUDGMENT STANDARD ..................................12
`
`POINT I
`
`THE PLAINTIFF ESTABLISHED A PRIMA FACIE CASE FOR
`SUMMARY JUDGMENT BY SUBMITTING EVIDENCE THAT THE
`VEHICLE SHE WAS DRIVING WAS STRUCK IN THE REAR BY
`DEFENDANTS’ VEHICLE AND, IN RESPONSE TO SUCH
`SHOWING, DEFENDANTS FAILED TO OFFER A NON-NEGLIGENT
`EXPLANATION FOR THE ACCIDENT ...............................13
`
`POINT II
`
`THE DEFENDANTS FAILED TO ESTABLISH A NON-NEGLIGENT
`EXPLANATION FOR THE ACCIDENT BASED ON THE AFFIDAVIT
`OF THEIR EXPERT OR THE ALLEGED STATEMENT OF THE
`PLAINTIFF TO EMS ...........................................16
`
`CONCLUSION.....................................................24
`
`PRINTING SPECIFICATIONS STATEMENT..............................25
`
`
`
`i
`
`
`
`TABLE OF AUTHORITIES
`
`Page(s)
`
`Cases
`
`Agramonte v. City of New York,
`288 AD2d 75 [1st Dept. 2001] ................................14
`
`Alvarez v. Prospect Hosp.,
`68 NY2d 320 [1986] ..........................................12
`
`Amatulli v. Delhi Constr. Corp.,
`77 NY2d 525 [1991] ..........................................17
`
`Andre v. Pomeroy,
`35 NY2d 361 [1974] ..........................................13
`
`Arkin v. Resnick,
`68 AD3d 692 [2d Dept. 2009] .................................18
`
`Bajrami v. Twinkle Cab Corp.,
`147 AD3d 649 [1st Dept. 2017] ...............................15
`
`Batashvili v. Veliz-Palacios,
`170 AD3d 791 [2d Dept. 2019] ................................14
`
`Beaubrun v. Boltachev,
`111 AD3d 494 [1st Dept. 2013] ...............................21
`
`Bender v. Gross,
`33 AD3d 417 [1st Dept. 2006] ................................18
`
`Bonilla v. N.Y. City Transit Auth.,
`295 AD2d 297 [2d Dept. 2002] ................................18
`
`Cabrera v. Rodriguez,
`72 AD3d 553 [1st Dept. 2010] ................................15
`
`Calderon v. City of New York,
`13 AD3d 569 [2d Dept. 2004] .................................17
`
`Cruz v. Valentine Packaging Corp.,
`167 AD3d 707 [2d Dept. 2018] ................................21
`
`Dovberg v. Laubach,
`154 AD3d 810 [2d Dept. 2017] ................................17
`
`
`
`ii
`
`
`
`Ferguson v. Hubbell,
`97 NY 507 [1884] ............................................18
`
`Francisco v. Schoepfer,
`30 AD3d 275 [1st Dept. 2006] ................................14
`
`Gleason v. Villegas,
`81 AD3d 889 [2d Dept. 2011] .................................14
`
`Gomes v. Pearson Capital Partners LLC,
`159 AD3d 480 [1st Dept. 2018] ...............................22
`
`Guerra v. Ditta,
`185 AD3d 667 [2d Dept. 2020] ................................18
`
`Imran v. R. Barany Monuments, Inc.,
`167 AD3d 992 [2d Dept. 2018] ................................17
`
`Jimenez v. Greyhound Lines,
`193 AD3d 548 [1st Dept. 2021] ...............................20
`
`Johnson v. Phillips,
`261 AD2d 269 [1st Dept. 1999] ...............................13
`
`Kalair v. Fajerman,
`202 AD3d 625 [1st Dept. 2022] ...............................14
`
`Lambert v. Bonilla,
`201 AD3d 502 [1st Dept. 2022] ...............................23
`
`Levine v. Taylor,
`268 AD2d 566 [2d Dept. 2000] ................................15
`
`Lynch v. City of New York,
`280 AD2d 441 [1st Dept. 2001] ...............................19
`
`Macauley v. ELRAC, Inc.,
`6 AD3d 584 [2d Dept. 2004] ..................................15
`
`Macias v. Ferzli,
`131 AD3d 673 [2d Dept. 2015] ................................18
`
`Marmaduke v. Spraker,
`34 AD3d 1007 [3d Dept. 2006] ................................17
`
`Martinez v. Ghorta,
`190 AD3d 615 [1st Dept. 2021] ...............................19
`
`
`
`iii
`
`
`
`Martinez v. WE Transp. Inc.,
`161 AD3d 458 [1st Dept. 2018] ...............................13
`
`Medouze v. Plaza Constr. LLC,
`199 AD3d 465 [1st Dept. 2021] ...............................19
`
`Mero v. Vuksanovic,
`140 AD3d 574 [1st Dept. 2016] ...............................17
`
`Mitchell v. Gonzalez,
`269 AD2d 250 [1st Dept. 2000] ...............................14
`
`Morris v. Green,
`156 AD3d 540 [1st Dept. 2017] ...............................20
`
`Munoz v. Rock Group NY Corp.,
`
`200 AD3d 486 [1st Dept. 2021] ...............................17
`
`Nsiah-Ababio v. Hunter,
`78 AD3d 672 [2d Dept. 2010] .................................14
`
`Padilla v. Zulu Servs., Inc.,
`132 AD3d 522 [1st Dept. 2015] ...............................23
`
`Perdomo v. Llanos,
`158 AD3d 580 [1st Dept. 2018] ...............................23
`
`Profita v. Diaz,
`100 AD3d 481 [1st Dept. 2012] ...............................14
`
`Quiros v. Hawkins,
`180 AD3d 500 [1st Dept. 2020] ...............................14
`
`Reyes v. City of New York,
`29 AD3d 667 [2d Dept. 2006] .................................18
`
`Rodriguez v. Beal,
`191 AD3d 617 [1st Dept. 2021] ...............................13
`
`Rodriguez v. City of New York,
`31 NY3d 312 [2018] ..........................................23
`
`Rojas v. P&B Bronx Props. LLC,
`203 AD3d 525 [1st Dept. 2022] ...............................17
`
`Roman v. Vargas,
`182 AD2d 543 [1st Dept. 1992] ...............................19
`
`
`
`iv
`
`
`
`Romano v. Stanley,
`90 NY2d 444 [1997] ..........................................16
`
`Santos v. Booth,
`126 AD3d 506 [1st Dept. 2015] ...............................15
`
`Santos v. Nicolos,
`24 Misc.3d 999 [Sup. Ct. 2009] ..............................18
`
`Shillingford v. New York City Tr. Auth.,
`147 AD3d 465 [1st Dept. 2017] ...............................17
`
`Sillman v. Twentieth Century-Fox Film Corp.,
`3 NY2d 395 [1957] ...........................................12
`
`Somers v. Condlin,
`39 AD3d 289 [1st Dept. 2007] ................................14
`
`Sowa v. Zabar,
`193 AD3d 664 [1st Dept. 2021] ...............................22
`
`T-Mobile Northeast LLC v. 133 Second Ave., LLC,
`171 AD3d 541 [1st Dept. 2019] ...............................17
`
`Thorne v. Grubman,
`40 AD3d 375 [1st Dept. 2007] ................................17
`
`Urena v. GVC Ltd.,
`160 AD3d 467 [1st Dept. 2018] ...........................14, 15
`
`Vega v. Restani Constr. Corp.,
`18 NY3d 499 [2012] ..........................................12
`
`Velocci v. Stop & Shop,
`188 AD3d 436 [1st Dept. 2020] ...............................22
`
`Weber v. New York,
`24 AD2d 618 [2d Dept. 1965],
`affd., 17 NY2d 790 [1966] ...................................19
`
`White v. 31-01 Steinway, LLC,
`165 AD3d 449 [1st Dept. 2018] ...............................22
`
`William J. Jenack Estate Appraisers & Auctioneers,
`Inc. v. Rabizadeh,
`22 NY3d 470 [2013] ..........................................12
`
`Winegrad v. N.Y. Univ. Med. Ctr.,
`64 NY2d 851 [1985] ..........................................12
`
`
`
`v
`
`
`
`Zabawa v. Sky Mgt. Corp.,
`183 AD3d 430 [1st Dept. 2020] ...............................22
`
`Zuckerman v. New York,
`49 NY2d 557 [1980] ..........................................12
`
`Statutes
`
`Civil Practice Law and Rules § 3212(b) .........................12
`
`Vehicle and Traffic Law § 1122.................................21
`
`Vehicle and Traffic Law § 1128(a)..............................11
`
`Vehicle and Traffic Law § 1129(a)..........................11, 13
`
`
`
`
`
`vi
`
`
`
`SUPREME COURT OF THE STATE OF NEW YORK
`APPELLATE DIVISION: FIRST DEPARTMENT
`---------------------------------------X Case No. 2022-01726
` Index No. 25861/2018E
`OLAYA Z. GOODMAN,
`
`
`
`
`
`
`
`
`
`
`
`Plaintiff-Respondent, RESPONDENT’S BRIEF
`
`
`
`
`
`
`
`
`
`
`
`
`
`-against-
`
`IEH AUTO PARTS, LLC and NATHANIEL
`JAMES MIRANDA,
`
`Defendants-Appellants.
`
`
`
`---------------------------------------X
`
`
`PRELIMINARY STATEMENT
`
`
`
`
` Plaintiff-Respondent Olaya Z. Goodman (hereinafter “the
`
`plaintiff”), submits this brief in opposition to the brief filed
`
`by the defendants IEH Auto Parts, LLC and Nathaniel James Miranda
`
`(hereinafter “the defendants”), in connection with their appeal
`
`(3-4) from a decision and order of the Supreme Court, Bronx County
`
`(Barbato, J.), dated April 7, 2022, that granted plaintiffs’ motion
`
`for summary judgment on the issue of liability and dismissed their
`
`affirmative defense of culpable conduct(5-15)1. The order should
`
`be affirmed since the undisputed material facts show that
`
`plaintiff’s vehicle was struck in the rear by the defendants’
`
`vehicle and that defendants have failed to offer a non-negligent
`
`explanation for the accident making them liable as a matter of law
`
`for the subject accident.
`
`
`
`
`1 Numbers in parentheses refer to pages in the record on appeal.
`
`
`
`1
`
`
`
`Deposition of Plaintiff
`
`FACTS
`
`
`
`On February 8, 2018, the day of the accident, plaintiff began
`
`work at about 5 a.m.(485-486). She was driving an Access-A-Ride
`
`bus which looks like a box truck (486-487). Her route that day was
`
`classified as a “five-borough tour” starting in the Bronx (488).
`
`She had one to two pick-ups and drop-offs in the Bronx (488). She
`
`was then supposed to do a pick-up in Manhattan, but the trip was
`
`cancelled (489). Thereafter, plaintiff was scheduled to travel to
`
`Brooklyn, but that trip was also cancelled so she returned to the
`
`Bronx where she parked her bus for about 45 minutes as she was on
`
`her break (494). At about 10:30 her dispatcher told her to proceed
`
`to Staten Island for a pick-up (497). She was instructed to drive
`
`to Exit 10 on the Staten Island Expressway (hereinafter “SIE”) and
`
`would then be given further details as she was enroute (498-499).
`
`Plaintiff testified about the route she took from the Bronx
`
`to Staten Island; she eventually ended up on the Verrazano Bridge
`
`(499). The weather was cold but clear and dry with beautiful blue
`
`skies (499). When plaintiff first got off the Verrazano Bridge,
`
`she was in the right lane of the SIE for about 10 minutes (501-
`
`502). Between Exit 13 and 12, while still in the right lane,
`
`plaintiff noticed big white work van behind her. She was travelling
`
`at 45 to 50 miles per hour (502-503). She observed the van in her
`
`rear-view mirror (503-504).
`
`
`
`2
`
`
`
`When the white van was about two car lengths behind her bus
`
`plaintiff noticed that the van appeared to be speeding up and
`
`getting closer to her vehicle (504).
`
`Plaintiff thought the van wanted to exit so she moved over to
`
`the middle lane (504-505). Plaintiff believed that at that point
`
`on the SIE there were up to four travel lanes (507). After she
`
`moved left into the middle lane, plaintiff noticed that the van
`
`also moved into the same lane and was again behind her (507-508).
`
`Plaintiff did not know what the van was doing or how fast it was
`
`traveling, she only knew her rate of speed (508). She was traveling
`
`at 45-50 miles per hour and noticed the van speeding up (508).
`
`About 20 or 30 seconds after the van came into the lane in which
`
`plaintiff was traveling, the van struck her vehicle in the rear
`
`(510).
`
`When she noticed the van change lanes, it was two to three
`
`car lengths behind her. After that, plaintiff did not keep her eye
`
`on the van as she was driving straight (515-516). Plaintiff then
`
`felt her vehicle being struck from behind and heard the contact
`
`between the two cars (519-520). At that point, both she and the
`
`van pulled over to the shoulder (521).
`
` Plaintiff could not recall telling any medical personnel at
`
`the hospital that she had switched lanes at the same time as a
`
`fast-approaching vehicle was also switching lanes and that the
`
`rear driver’s actions were a cause of the accident (539).
`
`
`
`3
`
`
`
`Deposition of Nathaniel James Miranda
`
`On the date of the accident Miranda was employed by defendant
`
`IEH Auto Parts, LLC (hereinafter “IEH”) (84). His lack of recall
`
`regarding basic facts respecting this accident of which he should
`
`have had knowledge was surprising; however, Miranda was firm that
`
`the front of his vehicle struck the rear of plaintiff’s vehicle
`
`(87-88, 167-168). Further, Miranda observed front end and hood
`
`damage to his vehicle after the crash (176), acknowledging that
`
`photographs shown to him of his vehicle at the deposition were a
`
`fair and accurate depiction of the front-end damage his vehicle
`
`sustained in the crash (178-179). Miranda also agreed with the
`
`assessment in the police report that his van sustained heavy
`
`frontal damage. (192).
`
` Miranda was operating an IEH vehicle on the SIE when he
`
`collided with an Access-A-Ride bus (86). Miranda testified that he
`
`drove the company van into Brooklyn to make some deliveries (135).
`
`According to the police report, the accident occurred at 1:40 p.m.
`
`(136-137). Miranda was on his way back to the company warehouse
`
`from Brooklyn at that time (138-139).
`
`Miranda saw the Access-A-Ride bus prior to the collision but
`
`was not sure how many times he saw it (153). He was not sure how
`
`fast he was travelling but it was within the speed limit, although
`
`he did not know the speed limit (155-156). When he first saw the
`
`bus, it was in the same lane in which he was travelling and in
`
`
`
`4
`
`
`
`front of him (157). He was not sure what distance separated his
`
`van from the bus (157-158). He could not estimate how many car
`
`lengths separated the two vehicles (158).
`
`Miranda was not sure if the bus stayed in the same lane as
`
`his van and he could not recall if he stayed in the same lane of
`
`traffic from the first moment he saw the bus until the accident
`
`(159). Miranda did testify that from the first time he saw the bus
`
`in front of his van, the bus was in his view (161), and that he
`
`was always driving behind the bus. (176). He was not sure how much
`
`time elapsed from when he first saw the bus until the accident
`
`(161).
`
`Miranda’s following deposition testimony, quoted in Justice
`
`Barbato’s order (12), unquestionably shows that this was not a
`
`sudden lane/lateral impact accident as Miranda tried to overtake
`
`Goodman, but a hit-in-the-rear collision for which Miranda could
`
`not offer a non-negligent explanation:
`
`“Q. So you’re behind my client’s vehicle. You’re traveling
`
`whatever speed you are. No other vehicles in between you two, and
`
`you’re continuing to travel, right, in that whatever lane you’re
`
`in right?
`
`A. Yes
`
`Q. Then what happened?
`
`A. What do you mean what happened?
`
`
`
`5
`
`
`
`Q. What happened next? You’re behind her. She’s traveling in
`
`front of you, no cars between you, what happened next?
`
`A. Her brake lights came on. I hit the back of her vehicle.
`
`(167-168).
`
`Q. Were you attempting to pass the Access-A-Ride bus at any
`
`time from the time you first saw him [sic] until the crash?
`
`A. No
`
`Q. So you were always behind her, correct?
`
`A. Correct.“ (172)
`
`Miranda’s incredible lack of memory, unsurprisingly,
`
`precluded defendants from establishing any credible or proper
`
`defense to plaintiff’s motion for partial summary judgment on the
`
`issue of liability.
`
`Plaintiff’s Motion for Summary Judgment
`
`By notice of motion dated November 19, 2021, the plaintiff
`
`moved for summary judgment on the issue of liability and to dismiss
`
`the defendants’ affirmative defense of culpable conduct (16-17).
`
`The plaintiff argued that she was entitled to summary judgment
`
`because she had established a prima facie case that Miranda struck
`
`her vehicle, the Access-A-Ride bus (hereinafter “bus”), in the
`
`rear, and defendants could not provide a non-negligent explanation
`
`for the accident. Because only Miranda was at fault in causing the
`
`accident, the defendants’ affirmative defense that plaintiff
`
`contributed to the happening of the accident should be dismissed
`
`
`
`6
`
`
`
`(22-23). Appended to the motion for summary judgment was the
`
`plaintiff’s affidavit (18-21), which essentially restated the
`
`testimony she provided at her deposition.
`
`Most relevant to the issues on this appeal is plaintiff’s
`
`statement that while she was traveling in the right lane of the
`
`SIE she saw a white van advancing behind her until it was only
`
`two-car lengths away. Plaintiff decided to change lanes and moved
`
`into the middle lane at which point she saw the white van also
`
`change lanes into the middle lane (20). Plaintiff then stated: “I
`
`continued driving in the middle lane of travel on the SIE for about
`
`20-30 seconds looking straight ahead maintaining my speed of 45-
`
`50 miles per hour. Then, all of a sudden, I felt my vehicle get
`
`hit from behind and heard a loud bang” (20).
`
`In the motion papers, the plaintiff reiterated the statements
`
`she provided in her affidavit and discussed the testimony Miranda
`
`gave at his deposition (24-30, 226-229). Plaintiff emphasized that
`
`Miranda admitted that he struck the plaintiff’s bus in the rear as
`
`he was traveling behind her, ostensibly because he saw her brake
`
`lights come on, and he was not able to stop his van from striking
`
`the bus (29).
`
`The plaintiff also submitted a certified police report
`
`confirming that plaintiff’s bus had been struck from behind by
`
`Miranda’s van (224-225).
`
`
`
`7
`
`
`
`Plaintiff also submitted a memorandum of law arguing that the
`
`evidence established prima facie that plaintiff’s bus was struck
`
`in the rear by Miranda’s van and that the defendants could not
`
`provide a non-negligent explanation for the accident. Moreover,
`
`there was no evidence that plaintiff did anything to contribute to
`
`the accident (230-240).
`
`Defendants’ Opposition
`
`In opposition to the plaintiff’s motion the defendants
`
`submitted an affirmation of their attorney setting forth the
`
`exhibits they relied on including the parties’ deposition
`
`transcripts, the plaintiff’s pre-hospital care report summary, and
`
`an affidavit of their expert William Meyer, P.E. (241-242). Notably
`
`absent was an affidavit from Miranda, the defendant driver.
`
`In his affidavit Meyer did not set forth any testimony of
`
`Miranda that would allow him to form an opinion that the accident
`
`was not Miranda’s fault alone.2 Meyer’s opinion that there was a
`
`triable issue of fact as to how the accident occurred and that
`
`plaintiff contributed to it was based entirely on Meyer’s
`
`speculative and conclusory claims that the damage to the two
`
`vehicles and the location of the damage supported the conclusion
`
`that the accident occurred when plaintiff and Miranda attempted to
`
`
`2 This is not surprising because as will be discussed infra, Miranda conceded
`that he struck plaintiff’s vehicle in the rear and could offer no excuse for
`doing so other than that he saw the brake lights come on but was unable to stop
`his van in time.
`
`
`
`8
`
`
`
`change lanes at the same time (723-724). Meyer also formed his
`
`opinion based on a statement that plaintiff made in her pre-
`
`hospital care report that she switched lanes at the same time as
`
`Miranda switched lanes causing the collision (723-724).
`
`Attached to the defendants’ opposition was the pre-hospital
`
`care report summary prepared by the EMS personnel that transported
`
`plaintiff to the hospital. The report attributed the following
`
`statement to the plaintiff: “Patient states she checked her rear-
`
`view mirror and noticed a vehicle coming fast from behind her. She
`
`switched lanes and at the same time the fast-approaching vehicle
`
`switched lanes, colliding with her” (767).
`
`In a memorandum of law provided by defendants in opposition
`
`to the motion (791-809), the defendants’ argued that, contrary to
`
`the plaintiffs’ arguments, the facts as to the happening of the
`
`accident were not undisputed as the plaintiff provided two
`
`different versions of the accident based on her deposition
`
`testimony and the statement she allegedly made to the EMS worker
`
`in the pre-hospital care summary report (796-797). Further, and
`
`without any competent evidence in support, defendants also posited
`
`that the crash was a lateral side impact that occurred as Miranda
`
`tried to pass plaintiff. (796, 804).
`
`The defendants then reviewed the testimony of the plaintiff
`
`and discussed the opinions of Mr. Meyer (797-799). Most notably,
`
`the defendants at no point relied on the deposition testimony of
`
`
`
`9
`
`
`
`Miranda to support their position. The defendants posited that
`
`summary judgment was not appropriate because there were three
`
`versions of the accident raising a triable issue of fact as to how
`
`the accident occurred. The three versions are the two allegedly
`
`provided by the plaintiff and the third based on the opinion of
`
`Meyer (801-804). As will be discussed infra, this analysis is
`
`formed out of whole cloth and bears no relation to reality.
`
`Plaintiff’s Reply
`
`In reply, the plaintiff noted that the defendants did not
`
`rely on the deposition testimony of Miranda in their opposition
`
`papers in light of Miranda’s testimony that he had caused the
`
`accident as a result of rear-ending the plaintiff’s vehicle for no
`
`non-negligent reason. The plaintiff also argued that the
`
`photographs relied on by Meyer debunked his theory that the
`
`accident occurred when plaintiff attempted to change lanes at the
`
`same time as Miranda as the photographs revealed no damage to the
`
`right passenger side of Miranda’s vehicle or the left driver’s
`
`side of plaintiff’s vehicle, the areas where one would expect
`
`damage in a lateral side collision (811).
`
`Supreme Court’s Decision
`
`
`
`In a decision and order dated April 7, 2022, the Supreme
`
`Court, Bronx County (Barbato, J.), properly granted the
`
`plaintiff’s motion (5-15). The Supreme Court initially relied on
`
`the testimony and affidavit of plaintiff and the police report as
`
`
`
`10
`
`
`
`well as the photographs of the damage to the vehicles. The Court
`
`noted that in the police report the points of damage were listed
`
`as the “rear middle” of the bus and the “front middle” of the van.
`
`In addition, the photographs showed “heavy frontal damage to the
`
`defendants’ van with more damage to the front left” (7-8).
`
`The Court found that plaintiff established a prima facie case
`
`based on her sworn testimony that the defendants’ van rear ended
`
`her bus while she was driving “prudently” (9). Accordingly, the
`
`burden shifted to defendants to advance a non-negligent
`
`explanation for the accident and to support their affirmative
`
`defense of culpable conduct (9).
`
`The Court reviewed the affidavit of Meyer and the statement
`
`plaintiff allegedly made to EMS but found that the defendants’
`
`theory that plaintiff violated VTL § 1128(a) when she changed lanes
`
`precipitously was not supported by the evidence based on Miranda’s
`
`testimony that he was not sure if either vehicle changed lanes,
`
`his admission that he struck plaintiff’s bus in the rear after her
`
`brake lights illuminated, and his concession that he never
`
`attempted to pass the bus(11-12). The Court also noted that even
`
`under the defendants’ version of how the accident occurred
`
`defendants would still be liable because Miranda violated VTL §
`
`1129(a) by following too closely. The Court also distinguished the
`
`cases upon which defendants relied to support their argument that
`
`plaintiff had not eliminated all issues of fact as to her
`
`
`
`11
`
`
`
`comparative negligence emphasizing that in those cases there were
`
`affidavits from the adverse operators that contradicted movant’s
`
`version of the accident. (13-14).
`
`ARGUMENT
`
`SUMMARY JUDGMENT STANDARD
`
`In summary judgment motions, “the cause of action or defense
`
`shall be established sufficiently to warrant the court in directing
`
`judgment” in the moving party’s favor” (CPLR §3212(b)). “The
`
`proponent of the summary judgment motion must make a prima facie
`
`showing of entitlement to judgment as a matter of law, tendering
`
`sufficient evidence to demonstrate the absence of any material
`
`issues of fact” (Alvarez v. Prospect Hosp., 68 NY2d 320, 324
`
`[1986]). The facts are to be viewed “in the light most favorable
`
`to the non-moving party” (William J. Jenack Estate Appraisers &
`
`Auctioneers, Inc. v. Rabizadeh, 22 NY3d 470, 475 [2013]).
`
`Unless such a showing is made, the motion must be denied
`
`regardless of the sufficiency of the opposing papers (Winegrad v.
`
`N.Y. Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Zuckerman v. New
`
`York, 49 NY2d 557, 562 [1980]; Sillman v. Twentieth Century-Fox
`
`Film Corp., 3 NY2d 395, 404 [1957]). Once it is, however, the
`
`burden shifts to the non-moving party to “establish the existence
`
`of material issues of fact which require a trial of the action”
`
`(Vega v. Restani Constr. Corp., 18 NY3d 499, 503 [2012]).
`
`
`
`12
`
`
`
`It is not helpful to allow cases that do not belong on the
`
`trial calendar to languish there, thus delaying the trial rights
`
`of others. As the Court of Appeals noted in Andre v. Pomeroy, 35
`
`NY2d 361, 364 [1974], “Summary judgment is designed to expedite
`
`all civil cases by eliminating from the Trial Calendar claims which
`
`can properly be resolved as a matter of law. Since it deprives the
`
`litigant of his day in court, it is considered a drastic remedy,
`
`which should only be employed when there is no doubt as to the
`
`absence of triable issues [cits.]. But when there is no genuine
`
`issue to be resolved at trial, the case should be summarily
`
`decided, and an unfounded reluctance to employ the remedy will
`
`only serve to swell the Trial Calendar, and thus deny to other
`
`litigants the right to have their claims promptly adjudicated.”
`
`POINT I
`
`THE PLAINTIFF ESTABLISHED A PRIMA FACIE CASE FOR SUMMARY
`JUDGMENT BY SUBMITTING EVIDENCE THAT THE VEHICLE SHE WAS DRIVING
`WAS STRUCK IN THE REAR BY DEFENDANTS’ VEHICLE AND, IN RESPONSE
`TO SUCH SHOWING, DEFENDANTS FAILED TO OFFER A NON-NEGLIGENT
`EXPLANATION FOR THE ACCIDENT.
`
`Vehicle and Traffic Law § 1129(a) requires drivers to maintain
`
`safe distances between their vehicles and vehicles in front of them
`
`and imposes a duty on drivers to “be aware of traffic conditions,
`
`including vehicle stoppages” (Johnson v. Phillips, 261 AD2d 269 [1st
`
`Dept. 1999]; VTL § 1129(a); see also, Rodriguez v. Beal, 191 AD3d
`
`617 [1st Dept. 2021]; Martinez v. WE Transp. Inc., 161 AD3d 458 [1st
`
`Dept. 2018]).
`
`
`
`13
`
`
`
`It is well established that 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”
`
`(Francisco v. Schoepfer, 30 AD3d 275 [1st Dept. 2006], quoting
`
`Mitchell v. Gonzalez, 269 AD2d 250 [1st Dept. 2000]).
`
`Accordingly, a rear-end collision with a stopped vehicle
`
`creates a presumption that the operator of the rear vehicle was
`
`negligent. (see, Profita v. Diaz, 100 AD3d 481 [1st Dept. 2012];
`
`Somers v. Condlin, 39 AD3d 289 [1st Dept. 2007]; Agramonte v. City
`
`of New York, 288 AD2d 75 [1st Dept. 2001]). The above rule also
`
`applies to vehicles that are coming to a stop (see, Kalair v.
`
`Fajerman, 202 AD3d 625 [1st Dept. 2022]; Quiros v. Hawkins, 180 AD3d
`
`500 [1st Dept. 2020]; Urena v. GVC Ltd., 160 AD3d 467 [1st Dept.
`
`2018]).
`
`Moreover, and contrary to defendants’ arguments, the above rule
`
`also applies to vehicles that are actually moving when struck in
`
`the rear by a following vehicle. (see, Gleason v. Villegas, 81 AD3d
`
`889 [2d Dept. 2011] [“A driver of a vehicle approaching another
`
`vehicle from the rear is required to maintain a reasonable safe
`
`distance and rate of speed under the prevailing conditions to avoid
`
`colliding with another vehicle.”] Id at 890 quoting Nsiah-Ababio v.
`
`Hunter, 78 AD3d 672, 672 [2d Dept. 2010]; see also, Batashvili v.
`
`Veliz-Palacios, 170 AD3d 791 [2d Dept. 2019]).
`
`
`
`14
`
`
`
`To rebut this inference of negligence, the driver of the rear-
`
`ending vehicle must provide a non-negligent explanation for the
`
`collision. (see, Urena v. GVC Ltd., 160 AD3d 467 [1st Dept. 2018];
`
`Bajrami v. Twinkle Cab Corp., 147 AD3d 649 [1st Dept. 2017]; Santos
`
`v. Booth, 126 AD3d 506 [1st Dept. 2015]; Cabrera v. Rodriguez, 72
`
`AD3d 553 [1st Dept. 2010]). Neither conclusory allegations nor
`
`speculation are sufficient to rebut the inference of negligence
`
`created by a rear-end collision. (see, Macauley v. ELRAC, Inc., 6
`
`AD3d at 584 [2d Dept. 2004]; Levine v. Taylor, 268 AD2d 566 [2d
`
`Dept. 2000]).
`
`The defendants claim that plaintiff is not entitled to summary
`
`judgment because her affidavit made clear that she was not stopped
`
`or even slowing down at the time of the accident but that she was
`
`maintaining a rate of speed between forty and fifty miles per hour.
`
`This argument, even without the above case law that rejects it,
`
`would be absurd. Essentially, the defendants are claiming that a
`
`driver who is minding his or her own business and proceeding in a
`
`lane of travel would somehow not be entitled to summary judgment if
`
`his or her vehicle was struck in the rear. The rule the defendants
`
`are espousing would turn our highways into a never-ending bumper
`
`
`
`car ride.
`
`
`
`
`
`15
`
`
`
`POINT II
`
`THE DEFENDANTS FAILED TO ESTABLISH A NON-NEGLIGENT EXPLANATION FOR
`THE ACCIDENT BASED ON THE AFFIDAVIT OF THEIR EXPERT OR THE ALLEGED
`STATEMENT OF THE PLAINTIFF TO EMS
`
`The defendants claim that the affidavit of Mr. Meyer and the
`
`statement plaintiff allegedly made to EMS immediately after the
`
`accident raise issues of fact as to how the accident occurred and
`
`whether the plaintiff was at fault in its happening. However, these
`
`arguments are devoid of merit given the deposition testimony
`
`provided by Miranda which completely contradicts the defendants’
`
`version of how the accident occurred.
`
`Initially, Miranda’s deposition testimony allows only one
`
`conclusion, that he rear-ended plaintiff’s vehicle because he did
`
`not maintain a proper distance between the two automobiles.
`
`Moreover, although Meyer’s affidavit claims that “the accident at
`
`issue in this case involved a lateral contact between the vehicles
`
`. . . that most likely resulted from a lane change maneuver by one
`
`or both vehicles” (724), this opinion is based on pure speculation
`
`and is conclusory without any support in the record. Mayer’s opinion
`
`contradicts the photographs attached to his affidavit which show no
`
`damage to Miranda’s passenger side nor damage to the driver’s side
`
`of plaintiff’s vehicle. (733, 736, 739).
`
`“Where an expert states his conclusion unencumbered by any
`
`trace of facts or data, [the] testimony should be given no probative
`
`force whatsoever” (Romano v. Stanley, 90 NY2d 444, 451 [1997],
`
`
`
`16
`
`
`
`quoting Amatulli v. Delhi Constr. Corp., 77 NY2d 525, 533-534 n.2
`
`[1991]; Rojas v. P&B Bronx Props. LLC, 203 AD3d 525 [1st Dept. 2022];
`
`T-Mobile Northeast LLC v. 133 Second Ave., LLC, 171 AD3d 541 [1st
`
`Dept. 2019][Defendant’s expert failed to raise an issue of fact,
`
`because expert’s theories were refuted by factual evidence and the
`
`testimony of defendant’s witnesses.]; Mero v. Vuksanovic, 140 AD3d
`
`574 [1st Dept. 2016]). The appellate courts have consistently
`
`rejected expert evidence pertaining to accident reconstruction based
`
`on generalized claims unsupported by specific facts. See, Dovberg
`
`v. Laubach, 154 AD3d 810, 813 [2d Dept. 2017]; Calderon v. City of
`
`New York, 13 AD3d 569, 570 [2d Dept. 2004]. See also, Munoz v. Rock
`
`
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
