The following papers read on this motion by plaintiff for an order granting partial summary judgment on the issue of liability against defendants and striking their affirmative defenses, including plaintiff’s comparative negligence, assumption of risk, failure to use a seatbelt, and emergency doctrine. Papers Numbered Notice of Motion — Affirmation — Exhibits 1 Affirmation in Opposition — Exhibit by Sandoval Defs 2 Reply Affirmation 3 Affirmation in Opposition — Exhibit by Def. Mercado 4 Affirmation in Opposition — Exhibits by Def. Sam Tell and Son, Inc. 5 Reply Affirmation 6 Affirmation in Opposition — Exhibits by Defs. Efficiency Enterprises, Inc. 7 Reply Affirmation 8 Upon the foregoing papers, it is ordered that the motion is determined as follows: This is an action to recover for personal injuries allegedly sustained by plaintiff in two separate motor vehicle accidents. The first accident occurred on May 18, 2018 at West Merrick Road and South Bayview Avenue, County of Nassau, State of New York. Plaintiff alleges that she was driving when she observed defendant, Jimmy D. Graham, Jr. running alongside a moving truck (that had no driver), which collided with plaintiff’s vehicle. It is well-settled that the proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law by providing sufficient evidence to demonstrate the absence of material issues of fact (Winegrad v. New York Univ. Med. Center, 64 NY2d 851 [1985]). If a sufficient prima facie showing is demonstrated, the burden then shifts to the non-moving party to come forward with competent evidence to demonstrate the existence of a material issue of fact, the existence of which necessarily precludes the granting of summary judgment and necessitates a trial (Alvarez v. Prospect Hospital, 68 NY2d 320 [1986]). In the case at bar, there is a triable issue of fact as to whether defendant, Sam Tell and Son, Inc. was the owner, lessor or lessee of the vehicle involved in the May 18, 2018 accident. Defendant, Sam Tell and Son, Inc. submitted, among other things, a copy of the “Lease Surrender” by Jeremy Karmel, Vice President of defendant, Efficiency Enterprises, Inc. dated January 8, 2017, delineating “Sam Tell Companies” as a customer and stating that as of January 1, 2018, the vehicle was surrendered to defendant, Efficiency Enterprises, Inc. Defendant, Sam Tell and Son, Inc. further submitted a sworn affidavit from chief financial officer, Michael Bitonti, stating that the vehicle in question was registered and owned by defendant, Efficiency Enterprises, Inc.1 Accordingly, that branch of the motion for partial summary judgment on the issue of liability as against, defendant, Sam Tell and Son, Inc., is denied. Plaintiff has established her prima facie entitlement to summary judgment as a matter of law as against defendants, Efficiency Enterprises, Inc., Circle Lubricants, Inc. Banc of America Leasing & Capital LLC and Jimmy D. Graham Jr. (“Efficiency defendants”).2 In her sworn affidavit, plaintiff avers that defendant-driver, Graham Jr. was negligent in securing defendants’ truck, which rolled forward unattended from a gas station parking lot into the street, and collided with plaintiff’s vehicle. Plaintiff further avers that she was wearing her seatbelt on the date of the accident. Moreover, plaintiff has established that she was free from comparative negligence. In opposition, Efficiency defendants have failed to raise a triable issue of fact as to their negligence on the basis of emergency doctrine (see Cuevas v. Chavez, 94 AD3d 803 [2d Dept 2012]). In his sworn affidavit, defendant-driver, Graham Jr., states that before exiting the truck, he put the truck in neutral and secured the emergency beak, and that he worked on preparing barrels of oil for delivery, for at least five minutes without incident. Defendant, Graham Jr. further states that when he noticed the truck moving, he entered the truck in an attempt to prevent it from rolling into the street and noticed that the emergency break had been released. Defendant, Graham Jr. contends that he suspects that an unknown male, who glanced at him when passing by the side of the truck, released the emergency break. The court finds the contention that an unknown male caused the accident, to be speculative at best. Moreover, Efficiency defendants rely on a video surveillance that they submitted to the court, which shows a male walking past the rear driver’s side of the truck, however, when the male was at the rear of the truck, the truck was still stopped. Such delay further casts doubt on defendant, Graham Jr.’s theory. Therefore, Efficiency defendants have not established that plaintiff’s accident was due to a sudden and unexpected circumstance, not of their own making. Accordingly, those branches of plaintiff’s motion for partial summary judgment on the issue of liability as against Efficiency defendants and to strike their affirmative defenses relating to plaintiffs failure to wear a seatbelt, assumption of risk, and emergency doctrine, are granted. The second accident is a chain collision that occurred on October 18, 2018, on the Southern State Parkway, in County of Nassau, State of New York. A rear-end collision with a stopped or stopping vehicle creates a prima facie case of negligence with respect to the operator of the moving vehicle, and imposes a duty on the operator of the moving vehicle to come forward with an adequate, non-negligent explanation for the accident (Brothers v. Bartling, 130 AD3d 554 [2d Dept 2015]; Le Grand v. Silberstein, 123 AD3d 773 [2d Dept 2014]). In the case at bar, plaintiff has demonstrated a prima facie showing of entitlement to judgment as a matter of law, on the issue of liability by submitting a sworn affidavit, wherein she avers that she was wearing her seatbelt and that her vehicle was stopped, when she was rear-ended by defendant, Robert Mercado’s vehicle. Plaintiff further avers that defendant, Mercado was rear-ended by a vehicle owned by defendant, Miguel Sandoval and operated by defendant, Alexandra Sandoval, although plaintiff does not know when that collision occurred. In opposition, Sandoval defendants failed to rebut the inference of negligence by providing a non-negligent explanation for the collision (see Service v. McCoy, 131 AD3d 1038 [2d Dept 2015]). Sandoval defendants contend that plaintiff attempted to change lanes into the middle lane with no blinker and suddenly drove back into the left lane and that defendant, Mercado suddenly stopped his vehicle, causing Sandoval defendants to rear-end Mercado. The court finds Sandoval defendants’ contention to be without merit when determining plaintiff’s liability. Notably, in his sworn affidavit, defendant, Mercado, who was directly behind plaintiff’s vehicle, made no mention of plaintiff changing lanes. Rather, defendant, Mercado stated that while his vehicle was stopped in heavy traffic, he was rear-ended by Sandoval defendants, pushing his vehicle into plaintiff’s vehicle. As the rear-most vehicle, Sandoval-driver was obligated to take “appropriate precautions, including maintaining a safe distance” (David v. New York City Bd. of Educ., 19 AD3d 639 [2d Dept 2005]; see Xian Hong Pan v. Buglione, 101 AD3d 706 [2d Dept 2012]). Sandoval defendants aver that summary judgment is premature, however, offer no basis that discovery may lead to relevant evidence (see Kimagarov v. Nixon Taxi Corp., 45 AD3d 736 [2d Dept 2007]). However, Sandoval defendants, in their sworn affidavit, have raised a triable issue of fact as to the comparative fault of plaintiff. Although a plaintiff is “no longer required to show freedom from comparative fault” (Lopez v. Dobbins, 164 AD3d 776 [2d Dept 2018]), citing Rodriguez v. City of New York, 31 NY3d 312 [2018]) in establishing a defendant’s negligence, the plaintiff must meet that burden in warranting dismissal of an affirmative defense relating to the plaintiff’s culpable conduct. Accordingly, those branches of plaintiff’s motion for partial summary judgment on the issue of liability as against Sandoval defendants and to strike their affirmative defenses relating to plaintiff’s failure to wear a seatbelt, emergency doctrine, and assumption of risk, are granted. That branch of plaintiff’s motion to strike the affirmative defense as to plaintiff’s comparative negligence, is denied. The record is devoid of evidence as to defendant, Mercado’s negligence. “In chain collision accidents, the operator of the middle vehicle may establish prima facie entitlement to judgment as a matter of law by demonstrating that the middle vehicle was struck from behind by the rear vehicle and propelled into the lead vehicle” (Kuris v. El Sol Contracting and Const. Corp., 116 AD3d 675 [2d Dept 2014]). It is undisputed that Mercado had operated the middle vehicle. Accordingly, that branch of the motion for partial summary judgment on the issue of liability as against defendant, Mercado, is denied. Dated: October 27, 2021
