Upon the reading and filing of the following papers in this matter: (1) Notice of Motion by defendant Sally A. Sartorio dated February 12, 2019, and supporting papers; (2) Affirmation In Opposition by plaintiff pro se dated April 10, 2019; (3) Reply Affirmation by defendant Sally A. Sartorio dated May 6, 2019; and (4) Reply Affirmation by plaintiff pro se dated April 10, 2019, it is ORDERED that the motion by defendant Sally A. Sartorio pursuant to CPLR 3212 for summary judgment in her favor, dismissing the plaintiff’s complaint and the claims asserted against her, is DENIED; and it is further ORDERED that the parties are directed to appear for a previously scheduled compliance conference on Tuesday, October 8, 2019 at 9:30 a.m. before Part 6 of the Supreme Court located at One Court Street in Riverhead, New York. This action involves a three-car motor vehicle accident that occurred on June 23, 2013 in the Town of Brookhaven, when defendant Sally A. Sartorio, who was traveling north on County Road 97 (also know as Nicholls Road), a four-lane divided highway with separate left-and right-turn lanes, abruptly stopped for a yellow traffic light at the highway’s intersection with Sheep Pasture Road, causing the vehicle that was traveling behind her, which was operated by Matthew J. Lyons and owned by Donna M. Lyons, to swerve to the right and stop. The vehicle operated and owned by plaintiff, who was also driving north on County Road 97, then hit the rear of the Lyons vehicle, which, in turn, struck the rear of the Sartorio vehicle. Plaintiff, who has brought this action pro se, is seeking to recover for the serious physical injuries that she allegedly sustained as a result of her collision with the Lyons vehicle. Defendant Sally A. Sartorio now moves, pursuant to CPLR 3212, for summary judgment in her favor, dismissing the plaintiff’s complaint and all claims asserted against her, on the grounds that no triable issue of fact exists and that she is entitled to judgment in her favor as a matter of law. In support of her motion, Sartorio offers, among other things, her own affidavit; copies of the pleadings; a certified police report; and signed “Motor Vehicle Crash Supplemental Report” statements (each an “MVCSR statement”) given by herself, by plaintiff, by defendant Matthew Lyons and by a non-party eyewitness, Claudia Dunmire. Sartorio also annexes to her papers copies of two prior decisions and orders in this case, dated, respectively, March 9, 2017 and August 17, 2018 (Baisley, J.). Plaintiff opposes the motion on the grounds that the Sartorio vehicle came to an abrupt and unanticipated stop, causing the Lyons vehicle to swerve into plaintiff’s lane of travel, and that a triable issue of fact exists as to the proximate cause or causes of the accident. Plaintiff further opposes the motion on the ground that the motion is premature in that discovery has not been completed. Plaintiff offers, without objection, her own affirmations in support of her opposition to the motion (plaintiff, an admitted attorney, is appearing pro se; cf. CPLR 2106[a]). The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case. Before summary judgment may be granted, it must clearly appear that no material and triable issue of fact is presented (Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395, 165 NYS2d 498 [1957]). The movant has the initial burden of proving entitlement to summary judgment (Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 487 NYS2d 316 [1985]). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (Winegrad v. New York Univ. Med. Ctr., supra). Once such proof has been offered, the burden then shifts to the opposing party, who, in order to defeat the motion for summary judgment, must proffer evidence in admissible form…and must “show facts sufficient to require a trial of any issue of fact” (CPLR 3212 [b]; see Zuckerman v. City of New York, 49 NY2d 557, 427 NYS2d 595 [1980]). As the court’s function on such a motion is to determine whether issues of fact exist, not to resolve issues of fact or to determine matters of credibility, the facts alleged by the opposing party and all inferences that may be drawn from them are to be accepted as true (see Roth v. Barreto, 289 AD2d 557, 735 NYS2d 197 [2d Dept 2001]; O’Neill v. Fishkill, 134 AD2d 487, 521 NYS2d 272 [2d Dept 1987]). When a driver of a motor vehicle approaches another automobile from the rear, he or she is bound to maintain a safe rate of speed and has the duty to keep control over his or her vehicle and to exercise reasonable care to avoid colliding with the other vehicle (Carhuayano v. J & R Hacking, 28 AD3d 413, 813 NYS2d 162 [2d Dept 2006]; Gaeta v. Carter, 6 AD3d 576, 775 NYS2d 86 [2d Dept2004]; Chepel v. Meyers, 306 AD2d 235, 762 NYS2d 95 [2d Dept 2003]; Power v. Hupart, 260 AD2d 458, 688 NYS2d 194 [2d Dept 1999]; see also Vehicle and Traffic Law §1129 [a]). Thus, a rear-end collision with a stopped or stopping vehicle creates a prima facie case of liability against the operator of the moving vehicle and imposes a duty of explanation on the operator of the moving vehicle to excuse the collision by providing a non-negligent explanation for the collision (see Davidoff v. Mullokandov, 74 AD3d 862, 903 NYS2d 107 [2d Dept 2010]; Carhuayano v. J & R Hacking, supra; Rainford v. Sung S. Han, 18 AD3d 38, 795 NYS2d 645 [2d Dept 2005]; Thoman v. Rivera, 16 AD3d 667, 792 NYS2d 558 [2d Dept 2005]; Gaeta v. Carter, supra). However, the lead vehicle also has a duty not to stop suddenly or slow down without proper signaling so as to avoid a collision (Chepel v. Meyers, supra, 306 AD2d at 237; see Carhuayano v. J&R Hacking, supra; Purcell v. Axelsen, supra, 286 AD2d 379, 729 NYS2d 495 [2d Dept 2001]; Gaeta v. Carter, supra; Colonna v. Suarez, 278 AD2d 355, 718 NYS2d 618 [2d Dept 2000]; see also Vehicle and Traffic Law§1163). Sartorio states in her affidavit that she slowed and then stopped for a traffic light that had turned from green to yellow, and that upon her stopping, the Lyons vehicle veered to the right of her vehicle at an angle, facing toward the painted median, which separated Lyons’ lane of travel from the right turn lane. Sartorio avers that the Lyons vehicle was caused to make contact with her vehicle after being struck on the rear passenger side by plaintiff’s vehicle. In her signed MVCSR statement to the police, Sartorio stated that “at the sound of the crash a second car” proceeded past her and moved through the intersection of County Road 97 and Sheep Pasture Road and veered off to the right of County Road 97 beyond the intersection. Matthew Lyons stated in his MVCSR statement to the police that he saw the light on County Road 97 turn yellow and the Sartorio vehicle then slam on its brakes and stop halfway through the intersection. The Police Accident Report includes the recitation that “Both operators #1 [plaintiff] and #2 [Matthew Lyons] apparently did not think veh[icle] #3 [Sartorio] was going to stop for the yellow light,” although the basis for that assertion is not stated on the MV-104A form itself. However, according to Matthew Lyons’ signed MVCSR statement, to avoid colliding with the Sartorio vehicle, he swerved his car and pulled up onto a painted median, at which “point [his vehicle] was rear-ended on [its] passenger side, causing [his vehicle] to hit the back of [Sartorio's vehicle].” Claudia Dunmire, an eyewitness to the accident, also gave a signed MVCSR statement to the police. In it, she confirmed that the Lyons vehicle had swerved to the right — albeit “gently,” according to Dunmire — to avoid the Sartorio vehicle, which had stopped short — and that the plaintiff’s vehicle then had to stop short to avoid the Lyons vehicle and, after “ramming into the [Lyons vehicle],” plaintiff’s vehicle “went on two wheels” and then “luckily righted itself.” In a Decision and Order dated March 9, 2017, the court (Baisley, J.) granted summary judgment in favor of defendants Matthew and Donna Lyons, holding that “Matthew Lyons’ actions in operating his vehicle were not the proximate cause of the subject accident’s occurrence….” (Decision and Order at 3, citations omitted)1. Here, defendant Sartorio has established a prima facie case of entitlement to judgment as a matter of law by demonstrating that she was stopped or stopping her vehicle when it was struck in the rear (see Davidoff v. Mullokandov, supra; Carhuayano v. J & R Hacking, supra; Rainford v. Sung S. Han, 18 AD3d 638; 795 NYS2d 645 [2d Dept 2005]; Thoman v. Rivera, 16 AD3d 667, 792 NYS2d 558 [2d Dept 2005]; Gaeta v. Carter, supra). The burden, therefore, shifted to plaintiff to raise a triable issue of fact with respect to actionable liability on the part of Sartorio for the accident (see Zuckerman v. City of New York, supra.). The fact that the operator of a vehicle may — or may not — be negligent for rear-ending a stopped vehicle does not necessarily mean that the operator of the stopped vehicle is free of negligence (Fitzgerald v. New York City Transit Authority, 2 AD3d 577, 769 NYS2d 300 [2d Dept 2003] citing e.g. Lenahan v. Goucher, 65 NY2d 1034, 494 NYS2d 293 [1985]; Heal v. Liszowski, 294 AD2d 911, 741 NYS2d 374 [4th Dept 2002]; Purcell v. Axelsen, 286 AD2d 379, 729 NYS2d 495 [2d Dept 2001]; Colonna v. Suarez, 278 AD2d 355, 718 NYS2d 618 [2d Dept 2000]; Mundo v. City of Yonkers, 249 AD2d 522, 672 NYS2d 128 [1998]; Niemec v. Jones, 237 AD2d 267, 65 NYS2d 163 [1997]). Plaintiff contends, based upon, among other things, the statements provided to the police by Matthew Lyons and Claudia Dunmire, that in bringing her vehicle to an abrupt and unexpected stop halfway through the intersection and thereby causing the Lyons vehicle to swerve into plaintiff’s lane of travel, Sartorio was negligent and that her negligence was a proximate cause of the accident (see Chepel v. Meyers, supra, 306 AD2d at 237; see Carhuayano v. J&R Hacking, supra; Purcell v. Axelsen, supra, 286 AD2d 379, 729 NYS2d 495 [2d Dept 2001]; Gaeta v. Carter, supra; Colonna v. Suarez, 278 AD2d 355, 718 NYS2d 618 [2d Dept 2000]; see also Vehicle and Traffic Law§1163). Sartorio admits that she stopped her vehicle when the traffic light turned from green to yellow and that the Lyons vehicle, which had been traveling behind her, then veered to the right — presumably to avoid colliding with her vehicle — facing toward the painted median. In her MVCSR statement to the police, plaintiff asserted that she “was driving northbound on Rt 97 Nicholls Road when [the Lyons vehicle] swerved out and [she] tried to go around him, because another car in front of him was stopped in the lane. [She] went on the [sic] two wheels after trying to avoid his car.” A driver has a duty “not to stop suddenly or slow down without proper signaling so as to avoid a collision (Purcell v. Axelsen, 286 AD2d 379, 380, 729 NYS2d 495 [2d Dept 2001]; see Colonna v. Suarez, 278 AD2d 355, 718 NYS2d 618 [2d Dept 2000]; Niemec v. Jones, 237 AD2d 267, 268, 654 NYS2d 163 [2d Dept 1997]; see also Vehicle and Traffic Law §1163). Thus, there are triable issues of fact as to whether Sartorio’s conduct in bringing her vehicle to a “sudden or abrupt stop” was negligent and, by causing the following driver to swerve his vehicle into plaintiff’s path of travel, a proximate cause of the accident (Rodriguez-Johnson v. Hunt, 279 AD2d 781, 782, 718 NYS2d 501 [3d Dept 2001]; see Danner v. Campbell, 302 AD2d 859, 754 NYS2d 484 [4th Dept 2003]; Chepel v. Meyers, 306 AD2d 235, 762 NYS2d 95 [2d Dept 2003]; Power v. Hupart, 260 AD2d 458, 688 NYS2d 194 [2d Dept 1999]). A motion for summary judgment should be denied where the facts are in dispute, where conflicting inferences may be drawn from the evidence or where there are issues of credibility (see Chimbo v. Bolivar, 142 AD3d 944, 37 NYS3d 339 [2d Dept 2016]; Benetatos v. Comerford, 78 AD3d 730, 911 NYS2d 155 [2d Dept 2010]). Accordingly, defendant Sally A. Sartorio’s motion for summary judgment in her favor, dismissing the complaint and the claims asserted against her, is denied. The foregoing constitutes the decision and order of the court. Dated: October 3, 2019 Riverhead, New York
