DECISION AND ORDER Presently before the Court is defendants’ motion for an order pursuant to CPLR §3212 granting partial summary judgment and, or, dismissal of the complaint. This case arises out of a motor vehicle accident that occurred on September 20, 2018 on Bay Road in the Town of Queensbury, Warren County and it is not disputed that the plaintiff, operating a pick up truck, rear ended the defendant and that he did not see the defendant’s pick up truck at any time before colliding with it. At the time of the accident — approximately 6 PM — the Adirondack Balloon Festival was underway and there were hot air balloons aloft as the plaintiff was operating his vehicle along Bay Road. The motion is premised on these undisputed facts and seeks to establish plaintiffs culpable conduct as a matter of law, following the trajectory of Rodriguez v. City of New York, 31 N.Y.3d 312 (2018). The defendant describes traveling northbound on Bay Road with several cars in front of him — one in particular described in his deposition testimony as a “gold [colored] vehicle” distanced by “a car and a half-length” with other vehicles pulled off to the sides as drifting hot air balloons proceeded overhead. The “gold vehicle” entered an area controlled with a flashing yellow light and a crosswalk in which the defendant observed bicyclists and pedestrians. The “gold vehicle’s brake lights were noted, and that vehicle came to a stop. The defendant slowed his vehicle, also came to a stop, and was “rear ended by a black pickup truck.” The plaintiff’s deposition testimony describes the accident as follows: A: [s]o I’m going north on Bay Street and I took my eyes off the road and I leaned over my steering wheel, and within a second — prior to me taking my eyes off the road I looked ahead and the car that was in front of me, the vehicle that was in front of me, and I believe it was a car, was about three car lengths ahead of me. So I took my eyes off the road and I was leaning over my steering wheel and within a second it happened almost immediately I hit this other vehicle. Plaintiff also avers that the vehicle which he was following was not the vehicle with which he ultimately collided and testifies that immediately after the collision the defendant stated, “I entered your lane and you hit me.” This, the defendant denies — distilling now to where one claims the other said it — an evidentiary matter a jury is well within its authority to accept or not. To state the obvious — plaintiff intends to bring a jury toward accepting this as, more likely than not, a substantial factor leading to the cause of the accident. With an equal measure of ambiguity, plaintiff’s further testimony is that he did not see any vehicle pull out in front of him. The motion submissions also demonstrate a further factual dispute with respect to the location of the crosswalk and, thus, the point of the collision itself — as well as the defendant’s route of travel before entering the area where the collision occurred. Although the all-embracing facts emphasized by the movant are that the plaintiff’s eyes were elsewhere than on the road conditions in front of him the Court finds this too narrow a perspective upon which to deprive the plaintiff of a trial jury’s deliberations on the question of his own fault. In the analysis of any collision there is the unwavering maxim that “[e]very driver…is bound by a duty to see what there is to be seen through the proper use of his or her senses and is negligent in failing to do so (see Cook v. Gomez, 138 AD3d 675 [2d Dept 2016] citing Lu Yuan Yang v. Howsal Cab Corp., 106 AD3d 1055 [2d Dept 2013]; Calderon-Scotti v. Rosenstein, 119 AD3d 722, [2d Dept 2014]; Starkman v. City of Long Beach, 106 AD3d 1076, 1078, [2d Dept 2013]; Amalfitano v. Rocco, 100 AD3d 939, 940, [2d Dept 2012]). See also, N.Y PJI 2:77. From this modest guidance it is clear defendants have established their entitlement to judgment as a matter of law by demonstrating, prima facie, that their vehicle was struck in the rear by plaintiff’s vehicle (see Kertesz v. Jason Transp. Corp., 102 A.D.3d 658 (2013); Kastritsios v. Marcello, 84 A.D.3d 1174 (2011 ). “A rear-end collision with a stopped or stopping vehicle creates a prima facie case of negligence against the operator of the rear vehicle, thereby requiring that operator to rebut the inference of negligence by providing a nonnegligent explanation for the collision” (Volpe v. Limoncelli, 74 A.D.3d 795, 795(2010). Plaintiff’s admission that he did not see the defendant’s vehicle before colliding with it at 20 to 25 mph put side by side with his recitation of defendant’s declaration that “I entered your lane and you hit me” suggests a nonnegligent explanation. Viewing the record on the motion in a light most favorable to the nonmoving party, as this Court must, the conclusion is inescapable that plaintiff’s own comparative fault cannot be established as a matter of law without resolving issues of credibility and reconciling the noted conflicting factual claims. It is conceivable that a jury’s proper application of PJI 2:77 informing that [a] driver has the duty to operate (his, her) vehicle with reasonable care, taking into account the actual and potential dangers existing from weather, road, traffic, and other conditions. This duty requires the driver to maintain a reasonably safe rate of speed; to have (his, her) vehicle under proper control; to keep a proper lookout under the existing circumstances; to see and be aware of what is in (his, her) view; and to use reasonable care to avoid an accident. could reasonably land on a different conclusion than that which the defendants advocate. Under these circumstances none can doubt that the reliability of either version may only be resolved by a jury. It is not this Court’s function on a motion for summary judgment to assess credibility (see, Ferrante v. American Lung Assn., 90 N.Y. 2d 623 (1997); Glick & Dolleck v. Tri-Pac Export Corp., 22 NY2d 439, 441; Capelin Assocs. v. Globe Mfg. Corp., 34 NY2d 338, 341). The motion does, however, highlight the necessity of also determining whether the defendant was negligent and whether such negligence was a substantial factor in causing plaintiff’s injuries. See Rodriguez v. City of New York, 31 N.Y.3d 312 (2018). Unified Rules for Trial Courts (22 NYCRR) §202.42 (a) provides that “Judges are encouraged to order a bifurcated trial of the issues of liability and damages in any action for personal injury where it appears that bifurcation may assist in clarification or simplification of the issues and a fair and more expeditious resolution of the action” (see also CPLR 603). Unified Rules for Trial Courts (22 NYCRR) §202.42 (b) then provides that “[w]here a bifurcated trial is ordered, the issues of liability and damages shall be severed and the issue of liability shall be tried first.” Here, there is no question that bifurcation will assist in the clarification and simplification of the issues under consideration. The Court thus directs that a bifurcated trial be held in this matter before the same jury (see Uniform Rules for Trial Courts [22 NYCRR] §202.42 [e]), with the issue of liability tried first. Therefore, having considered NYSCEF documents 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28 and 29- and virtual oral argument having been heard on April 30, 2021 with John D Wright, Esq. appearing on behalf of plaintiffs and James A. Lombardo, Esq. appearing on behalf of defendants, it is hereby ORDERED that defendants’ motion is denied in its entirety and it is further ORDERED that the trial in this matter shall be bifurcated on the issues of liability of the defendants, if any, and damages if necessary, with the same jury to hear both issues and the issue of liability to be heard first, and it further ORDERED that any relief not specifically addressed herein has nonetheless been considered and is expressly denied. The original of this Decision and Order has been e-filed by the Court. Counsel for plaintiff is hereby directed to promptly obtain a copy of the e-filed Decision and Order for service with notice of entry upon defendants in accordance with CPLR 5513. Dated: May 7, 2021
