Decision and Order After Trial This matter came before the Court on July 30, 2019 for trial on the issue of liability and damages sustained by the plaintiff after his vehicle was rear ended by defendants’ Martin Parisella’s and Patricia Parisella’s vehicle. Martin Parisella testified that he was the driver of the vehicle at the time of the accident. Facts Plaintiff appeared pro se in this matter. At trial the plaintiff was reminded of his right to retain private counsel of his choice, and he chose to proceed pro se. Defendants were represented by Alan McLaughlin, Esq. who made an oral application to dismiss the cause of action against Patricia Parisella and TSC Direct Tri-State Consumer Insurance Co. The Court denied Counsel’s oral application. Based on the testimony at trial, the accident occurred on November 7, 2018 at approximately 12:45 p.m. Plaintiff testified through a narrative that he was not physically present when the incident occurred and could not provide the Court with any firsthand information regarding how the accident occurred; and what damage, if, any was sustained by his vehicle. Plaintiff also failed to provide the Court with any documentary evidence regarding any estimates he obtained to repair his vehicle. Plaintiff only provided the Court with his towing receipt payment in the amount of $375.00. (Plaintiff’s Exhibit 1). Plaintiff’s first witness, Matthew Christie, the driver of the vehicle at the time of the accident testified that he was rear ended while fully stopped at the red light. Matthew testified that the vehicle “was totaled” as a result of the impact. However, no documents were offered through Matthew to substantiate the alleged damage to the vehicle. Neither were there any pictures, estimates of repair or receipts submitted other than the documents previously mentioned. Plaintiff’s final witness was Mr. Joseph Maneri. Maneri testified that he rented his 2001 Mercedes Benz to Mr. Charles Christie at a cost of $50.00 per day from November 7, 2018 to mid-April 2019. He also testified that Mr. Christie paid the car insurance for the rented vehicle at a cost of $117.00 per month from November 2018 to mid-April 2019. Maneri further testified that though he entered into a written rental agreement with plaintiff, he only saw Matthew Christie driving the vehicle. Maneri averred that he never received any payments towards the car rental from the plaintiff. The plaintiff did not proffer any receipts or proof of any payments made to this witness. Defendant, Mr. Martin Parisella, testified that he was driving his vehicle on the date of accident. Parisella also testified that his vehicle “did not slow down” as he approached the red light and that it “went full speed” into the rear end of plaintiff’s vehicle which was stopped at the red light. Defendant further testified that his brakes failed and presented a receipt from Guys Tire Buys South Auto Repairs where the brakes were repaired after the accident. Parisella’s testimony alone is insufficient to establish the theory of a non-neglect reason for the accident. The defendant’s presentation of a receipt to substantiate his claim that his vehicle was repaired on the date of accident is wholly insufficient to overcome the burden of negligence. Defendant did not present proof in admissible form, such as the mechanic who assessed the defect to defendant’s vehicle. As such, his testimony alone could not overcome the burden of liability. Discussion This case presents questions regarding liability, negligent and non-negligent accidents. On the issue of liability, the defendant testified that his brakes failed which caused him to rear ended the plaintiff’s car at the stop light. In Leonard v. City of New York, 273 A.D.2d 205, states in pertinent part “[a] rear end collision with a stopped vehicle creates a prima facie case of liability in favor of the operator of the stationary vehicle unless the operator of the moving vehicle can come forward with an adequate explanation for the accident.” In this case the defendant testified that his brakes failed but offered no evidence to support his claim. The Court in Leonard also reasoned that the operator of the moving vehicle must provide some evidence to rebut the thought of negligence in order for the operator of the stationary vehicle not to receive judgment on the basis of liability. In this case the defendant failed to provide the court with evidence to rebut the fact that this rear end collision was not based on negligence, and failed to do so. Plaintiff must also be able to meet his two-fold burden of proving that the defendant was negligent, and that he had no part in initiating the accident. Philip v. D&D Carting Co., Inc., 136 A.D.3d 18. Plaintiff proved this two-fold burden based on the defendant’s testimony that he rear ended him and that he was solely responsible for the collision. The Plaintiff also provided the court with a tow truck receipt in the amount of $375.00 proving that a collision took place and that his vehicle sustained damage. The burden now shifts to the defendant to demonstrate whether the rear-ended collision was negligent or non-negligent. The defendant did not provide the court with pictures, or third-party affidavit statements to demonstrate that the rear end accident was non-negligent. In Philip v. D&D Carting Co., Inc., defendant provided the court with pictures stating that the road was in fact filled with oil which in turn made his truck skid. This evidence assisted the court in finding that the rear end collision was non-negligent. In Russell v. J.L. Femia Landscape Services, Inc., 161 A.D. 3d 1119, defendant provided the court with verified, written statements from third-party witnesses which assisted the court in rendering its decision. In the case at bar the defendant provided no evidence except his self-serving testimony. It cannot be determined that the defendant’s brakes failed because he is not a mechanic and he also failed to offer an independent witness who repaired his brakes after the accident occurred. In order to prevail, defendant had to provide the court with other evidence because his testimony was insufficient to rebut the presumption of negligence created when he rear ended the plaintiff’s vehicle. See, (Emil Norsic & Son, Inc. v. L.P. Transp., Inc., 30 A.D. 3d 368). Although the defendant provided the court with a receipt that his brakes were repair it is insufficient. As such, defendant is liable to the plaintiff for the damage sustained to his vehicle. Plaintiff has provided only one receipt in the amount of $375.00 for towing expenses. Judgment is granted to the plaintiff in the amount of $375.00 This constitutes the Decision and Order of the court. Dated: August 15, 2019 Richmond, New York
