The following e-filed documents, listed by NYSCEF document number (Motion 001) 24, 25, 26, 27, 28, 29, 30, 39, 41, 42, 44, 45, 46, 47, 48, 49, 50 were read on this motion to/for JUDGMENT — SUMMARY. DECISION + ORDER ON MOTION Upon the foregoing documents, it is ordered that the motion by defendant BRENDAN B. MONAHAN (“Monahan”) and the cross-motion by Plaintiff are decided as follows: According to the Complaint, on March 28, 2018, at approximately 8:00 AM plaintiff, Jacqueline Pender, was a passenger in the vehicle operated by defendant BRENDAN B. MONAHAN (“Monahan”) when the vehicle, a truck driven by defendant EDWIN MOLDONADO (“Moldanado”) collided with the vehicle in which Plaintiff was riding on Grand Central Parkway at or near its intersection with Utopia Parkway in Queens County. The Court notes that the instant case was joined for joint trial by order dated November 30, 2022, with the case Brendan B. Monahan v. Edwin Maldonado and J.B. Jiminez, Index No. 700279/2021 (“Case 1″). The collisions that are the subject of Case 1, are also the subjects of the instant case. Both cases involved a series of two collisions between three vehicles. The Court notes that the driver of a third vehicle, J.B. Jiminez (“Jiminez”), is not a party to this case, though he is a defendant in Case 1. In the instant case, defendant-driver Monahan moves for summary judgment pursuant to CPLR §3212, seeking dismissal of the complaint and any and all cross claims against him, on the basis that there are no triable issues of fact regarding his liability. At the outset, Monahan argues that because this Court in Case 1 rendered a decision granting summary judgment to Monahan and found that he was not liable for the collision, the doctrine of collateral estoppel precludes this Court from reviewing the same issue in this case. Nonetheless, Monahan also argues that even if this Court does not apply the doctrine of collateral estoppel, Monahan is not liable for the collision. In support of his arguments Monahan submits, among other things, plaintiff Pender’s deposition transcript, a certified copy of the police report, as well as a copy of this Court’s earlier decision in the Monahan case wherein this Court granted Monahan’s summary judgment motion, finding him free of liability in the accident. The Certified Police Report contains the following statements: “AT T/P/O VEHICLE #1 [driven by J.B. Jimenez, defendant in Case 1], VEHICLE #2 [driven by Monahan], AND VEHICLE #3 [driven by Maldonado] WERE TRAVELING W/B G.C.P. IN MIDDLE LANE. VEHICLE #1 WAS SLOWING DOWN IN TRAFFIC, WHEN VEHICLE #3 REAR ENDED VEHICLE #1. AFTER REAR ENDING VEHICLE #1, DRIVER OF VEHICLE #3 [(Moldonado)] REVERSED HIS VEHICLE AND COLLIDED WITH VEHICLE #2 [(the Monahan vehicle)].” Defendant Monahan also submits the deposition transcript of plaintiff Pender, a passenger in Monahan’s vehicle, wherein she stated that defendant Monahan’s vehicle “was at a stop” behind Maldonado’s truck for “a good five minutes” prior to the accident taking place, and there were “about two car lengths” of space in front of Monahan’s vehicle (E48). She also stated therein that while she and Monahan were stopped, they were “waiting to try to move,” and Monahan attempted to change to either the left or the right lane (to leave the middle lane) but “couldn’t” because “the cars [were] coming too fast.” (Id.) When asked if there were “any cars stopped immediately behind [Monahan's car],” her answer was “Yes.” (Id.) Based upon the foregoing, Monahan argues that, he bears no liability for the happening of the accident, and he requests summary judgement be granted in his favor, dismissing the complaint and all cross-claims against him. Plaintiff-passenger Pender opposes. She argues, among other things, that Monahan failed to establish his prima facie entitlement to summary judgement because triable issues of fact exist regarding Monahan’s liability, and Monahan’s motion is premature. Plaintiff argues depositions are needed so she may discover what Monahan saw and why he allegedly failed to react. Plaintiff also relies on her deposition transcript wherein she stated that Monahan said he thought the Maldonado vehicle was going to stop, and she responded that “he don’t look like he’s going to stop.” Plaintiff further argues that because Monahan fails to provide a nonnegligent excuse for failing to: avoid the accident, heed Plaintiff’s warning, and use his horn or attempt evasive maneuvers, Monahan’s motion must be denied. Plaintiff Pender also cross-moves for an order (1) granting her partial summary judgment on the issue of liability as against Monahan, and striking defendant Monahan’s affirmative defenses alleging (2) comparative negligence on the part of Plaintiff, (3) Plaintiff’s failure to use a seatbelt and (4) the application of the Emergency Doctrine. Among her arguments, are that she established a prima facie case of Monahan’s negligence and that Monahan had a duty to see the Moldonado vehicle (especially after being warned by Plaintiff that Moldonado’s vehicle was going to strike them). Defendant Moldanado also opposes and argues that Monahan’s motion is premature and there are triable issues of fact regarding Monahan’s liability. Additionally, Maldonado argues that the doctrine of collateral estoppel does not apply herein, because Plaintiff Pender was not a party to Case 1 and did not have a full and fair opportunity to contest Monahan’s motion in that case. Maldonado, relies on Russell v. New York Central Mutual Fire Insurance Company, wherein the Second Department stated that “the doctrine of collateral estoppel applies only to those who, unlike the defendant, were either a party or in privity with a party, to the original action or proceeding, (11 A.D.3d 668, 783 N.Y.S.2d. 404 (2nd Dept. 2004)). In reply, Monahan argues, among other things, the doctrine of collateral estoppel applies because Moldonado and Plaintiff were in privity with each other, and because Plaintiff’s interests were represented in Case 1. Monahan argues Plaintiff’s interests were represented because her deposition testimony and her Complaint from this case were used as evidence to oppose Monahan’s motion for summary judgement in Case 1, and because Moldonado’s argument in opposition in Case 1 overlaps with the arguments in opposition to Monahan’s motion here; that is, in Case 1, Moldonado “argued that because PENDER alleges in her Complaint that defendant MONAHAN failed to avoid the accident, failed to properly observe traffic conditions, failed to heed her warning, and failed to use his horn or attempt any evasive maneuvers, there is a triable question of fact” (E49). In Case 1, the Court considered said argument, and given the evidence presented, nonetheless granted Monahan’s motion for summary judgement on the issue of liability as against Moldonado, deeming Monahan free from comparative negligence and dismissing Moldonado’s defenses based on comparative fault. Thus, here, Monahan argues in reply that plaintiff Pender’s interests were represented in Case 1 by Moldonado when he presented much of the same evidence and argument as she presents here to oppose a finding that Monahan was not negligent for the happening of the collision. As a general matter, the proponent of a summary judgment motion must tender evidentiary proof in admissible form eliminating any material issues of fact from the case (see Alvarez v. Prospect Hosp., 68 NY2d 320 [1986]). Once this showing has been made, the burden shifts to the non-moving party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact that require a trial for resolution (see Alvarez v. Prospect Hosp., supra; Zuckerman v. City of New York, 49 NY2d 557 [1980]). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). “A driver of a vehicle approaching another vehicle from the rear is required to maintain a reasonably safe distance and rate of speed under the prevailing conditions to avoid colliding with the other vehicle” (Catanzaro v. Edery, 172 AD3d 995, 996 [2d Dept. 2019]; see Vehicle and Traffic Law §1129[a]). In addition, “[a] driver is bound to see what is there to be seen with the proper use of his or her senses” (Higesh v. M&R Scarsdale Rest., LLC, 176 AD3d 788 [2d Dept. 2019]), and is negligent for the failure to do so (Shui-Kwan Ki v. Serrone, 103 AD3d 620 [2d Dept. 2013]). Monahan’s Summary Judgement Motion Based on the foregoing, this Court finds that Monahan’s motion for summary judgement is granted as to liability. At the outset, the Court agrees with defendant Monahan that he bears no liability for the subject accident and the doctrine of collateral estoppel applies. “The equitable doctrine of collateral estoppel is grounded in the facts and realities of a particular litigation, rather than rigid rules…The policies underlying its application are avoiding relitigation of a decided issue and the possibility of an inconsistent result.” (Internal citations omitted) (Buechel v. Bain, 97 NY2d 295, 303 [2001]). “What is controlling is the identity of the issue which has necessarily been decided in the prior action or proceeding” (Ryan v. New York Tel. Co., 62 NY2d 494, 500 [1984]). Before collateral estoppel can be invoked, two requirements must be met: (1) “[t]here must be an identity of issue which has necessarily been decided in the prior action and is decisive of the present action, and [(2)] there must have been a full and fair opportunity to contest the decision now said to be controlling. (Id). “An issue is ‘raised’ and ‘actually litigated’ for collateral estoppel purposes when it is submitted for determination, and is determined, and may be so submitted, inter alia, by pleading, or on a motion for summary judgment” (Montoya v. JL Astoria Sound, Inc., 92 AD3d 736 [2d Dept. 2012]) (citing Restatement [Second] of Judgments §27, Comment d)). “The doctrine of collateral estoppel precludes a party from relitigating in a subsequent action an issue that was raised in a prior action and decided against that party or those in privity” (emphasis added) (Coleman v. J.P. Morgan Chase Bank N.A., 190 AD3d 931-32 [2d Dept 2021]). The term party (parties) “within the contemplation of the rule of collateral estoppel is not confined to those who are named in the record or enter an appearance. Yet, although the party sought to be collaterally estopped in the current action need not have been the one for or against whom judgment was rendered in the previous action, the relationship does bear a critical significance. For example, collateral estoppel bars not only parties from a previous action from litigating an issue decided therein, but those in privity with them as well” (Gramatan Home Inv’rs Corp. v. Lopez, 46 NY2d 481, 486 [1979]). “[P]rivity is an amorphous concept not easy of application’…and ‘includes…those whose interests are represented by a party to the action”. “In addressing privity, courts must carefully analyze whether the party sought to be bound and the party against whom the litigated issue was decided have a relationship that would justify preclusion, and whether preclusion, with its severe consequences, would be fair under the particular circumstances” (internal quotes and citations omitted) (Buechel v. Bain, 97 NY2d 295, 304-05 [2001]) (see also D’Arata v. New York Cent. Mut. Fire Ins. Co., 76 NY2d 659, 664 [1990]) “The doctrine, however, is a flexible one, and the enumeration of these elements is intended merely as a framework, not a substitute, for case-by-case analysis of the facts and realities.” (Buechel v. Bain, 97 NY2d 295, 304 [2001]). Here, plaintiff Pender does not submit any new evidence in opposition to Monahan’s motion or in support of her cross-motion. Instead, she relies upon the evidence Monahan submitted, which includes her own deposition transcript. Additionally, the exact same question is before the Court in this case, as was before the Court in Case 1; that is, whether Monahan is liable for the happening of the collision between the Moldonado vehicle and the Monahan vehicle. Were, this Court to find collateral estoppel inapplicable here, it would open the parties up to litigating a decided issue and the possibility of an inconsistent result — which is the very situation the doctrine of equitable estoppel aims to prevent. Accordingly, equitable estoppel is applicable to the issue regarding whether Monahan is liable for the happening of the collision that is the subject of this case. Thus, Monahan’s motion for summary judgment is granted. Nonetheless, even if the doctrine of collateral estoppel were not to apply, defendant Monahan’s motion for summary judgement as to liability would still be granted. Monahan met his prima facie burden and neither plaintiff Pender nor defendant Moldonado produce proof sufficient to establish the existence of material issues of fact. As a preliminary matter, contrary to Plaintiff’s and Moldonado’s contentions, Monahan’s motion was not premature since “[t]he mere hope or speculation that evidence sufficient to defeat the motion might be uncovered during discovery is an insufficient basis for denying the motion” (Toltchelnikova v. Cmty. Recycling, 197 AD3d 677 [2d Dept. 2021]; Skura v. Wojtlowski, 165 AD3d 1196 [2d Dept. 2018]). Additionally, based on Pender’s own deposition testimony, the police report, and Monahan’s affidavit, it is clear that Monahan was not able to avoid the accident. At the time of the collision, Monahan was completely stopped, and there were cars to his left, to his right, and behind him, when defendant Moldonado reversed his vehicle into Monahan’s vehicle in the middle lane of traffic. Plaintiff even stated in her deposition that Monahan “couldn’t” changes lanes because “the cars [were] coming too fast.” Therefore, while “a driver traveling with the right-of-way may…be found to have contributed to the happening of the accident if he or she did not use reasonable care to avoid the accident” — that is not the case here (Arias v. Tiao, 123 AD3d 857, 858 [2d Dept 2014]). Though Plaintiff alerted Monahan that she thought the car in front of them was going to hit them, she also indicated that there was nowhere for Monahan to go to avoid the collision. Furthermore, while Plaintiff asserts an issue of fact exists, Plaintiff fails to point to any such issue in the submitted evidence, and blindly asserting that an issue of fact exists does not make it so. Moreover, it seems to the Court that the Plaintiff agrees with Monahan on the facts. Therefore, Monahan’s motion for summary judgment is granted, and the Court finds no liability is attributable to defendant Monahan. Plaintiff’s Cross-Motion: Plaintiff’s cross-motion is decided as follows: In the first branch of Pender’s motion, she moves for partial summary judgement against “Defendants.” Plaintiff argues, among other things, that it is undisputed that she was an innocent passenger seated in Monahan’s vehicle when Moldonado’s vehicle struck the vehicle in which she was riding. However, in her Affirmation in Support of her cross-motion, Plaintiff’s argument is limited to focusing on defendant Monahan’s actions, rather than also on defendant Moldonado’s actions. Therefore, it seems to the Court that Plaintiff intended to move for summary judgement solely against defendant Monahan. Considering the Court’s finding above that defendant Monahan is not liable for the happening of the collision, the first branch of Plaintiff’s cross-motion is denied. In the remaining branches of her cross-motion, Plaintiff seeks an order striking Monahan’s affirmative defenses alleging: comparative negligence on the part of Plaintiff, Plaintiff’s failure to use a seatbelt, and the Emergency Doctrine’s application to the accident. Since the Court granted Monahan’s summary judgement motion as to liability above, the remaining branches of Plaintiff’s motion to dismiss Monahan’s affirmative defenses are dismissed as academic. Dated: February 29, 2024
