The following papers numbered 1-3 were read and considered on Plaintiff’s Notice of Motion for Summary Judgment on the Issue of Liability (Motion #1) for an order: (1) Pursuant to Civil Practice Law and Rules §3212(c) and (e) granting partial summary judgment against the Defendant on the issue of liability; (2) For an order limiting trial herein to issues relating to recoverable damages; (3) Granting movant such other and further relief as this Court deems just and proper: PAPERS NUMBERED Notice of Motion (Motion #1)/Statement of Material Facts/Affirmation of Melanie-Ann Delancey, Esq./Exhibits 1-5 1 Affirmation in Opposition of Cristina M. Moreira, Esq./Exhibits A-B 2 Reply Affirmation of Melanie-Ann Delancey, Esq. 3 DECISION & ORDER This action arises from a motor vehicle collision on October 20, 2021, on State Route 17A, Tuxedo, New York. Plaintiff filed and served the Summons and Complaint on October 9, 2023. Defendant was served pursuant to Civil Practice Law and Rules §308(1) at 150 South Street Ext., Warwick, New York 10990. Issue was joined by Defendant with the filing of an Answer on December 4, 2023. In the instant action, Plaintiff contends that she was traveling east on Route 17 A near the intersection of Route 17A and Benjamin Meadow Road in a 2006 Audi when her vehicle was struck by a 2015 Chevrolet motor vehicle owned by Defendant. Plaintiff contends the vehicle in front of her slowed down and made a right turn onto the shoulder of the road and plaintiff gradually reduced the speed of her vehicle. According to plaintiff as she reduced the speed of her vehicle she was suddenly struck in the rear by the motor vehicle operated by the Defendant causing Plaintiff to sustain serious physical injuries. Plaintiff filed the instant motion for summary judgment arguing that “[a] rear-end collision establishes a prima facie case of negligence on the part of the driver of the rear vehicle, [imposing a burden and duty of explanation upon that operator to rebut the inference of negligence by providing an adequate] nonnegligent explanation for the collision” (Capuozzo v. Miller, 188 AD3d 1137 [2nd Dept. 2020]). Plaintiff avers that she noticed the car directly in front of her began to slow down to make a right turn onto the shoulder of the road. As a result, Plaintiff asserts that she slowly and gradually applied her brakes to slow the operation of her motor vehicle to a stop when her “vehicle was violently and suddenly rear-ended by the Defendant’s vehicle” (Mov. Aff., para 16). Plaintiff goes on to argue that the Defendant is unable to offer a nonnegligent explanation for the motor vehicle accident and Defendant’s actions were the sole proximate cause of the accident. Plaintiff argues that even if Defendant could establish comparative negligence on the part of the Plaintiff, any comparative negligence on the part of the Plaintiff is not a defense to summary judgment on the issue of liability. As such, Plaintiff urges that she does not have to demonstrate the absence of a material fact as to comparative negligence. In opposition, Defendant asserts that the Affidavit of Plaintiff annexed to the instant motion does not establish prima facie entitlement to summary judgment because it does not contain a description of the roadway conditions, traffic conditions or how many lines there were in her direction of travel at the time of the motor vehicle accident in question. Defendant contends that the Affidavit is also insufficient as it fails to set forth the distance between her vehicle and the Defendant’s vehicle prior to the motor vehicle accident, the distance between her vehicle and the uninvolved motorist she alleges she was slowing down for at the time of the accident, whether Plaintiff saw Defendant’s vehicle prior to the motor vehicle accident or whether Plaintiff’s vehicle was suffering mechanical difficulties. Defendant goes on to assert that Plaintiff’s Affidavit is insufficient as it fails to include (1) the speed she was travelling prior to the motor vehicle accident; (2) the speed at which the uninvolved motor vehicle ahead of her was travelling prior to the motor vehicle accident; (3) the speed limit on State Route 17A where the motor vehicle accident occurred; and (4) how much time passed from when she first applied her brakes to the moment of impact. According to Defendant the most glaring issue with Plaintiff’s Affidavit is she alleges she gradually applied her brakes, wherein Defendant contends that Plaintiff was at a complete stop when he allegedly rear ended her. To that end, Defendant argues that Plaintiff has failed to eliminate all issues of triable fact since the testimony of the Plaintiff and the Defendant are in complete contrast regarding how the motor vehicle accident occurred. Defendant goes on to argue that the conflicting Affidavits of Plaintiff and Defendant, as well as the statements attributed to the uninvolved motorist in the police report, requires denial of the summary judgment motion. The Defendant argues, the issues of credibility are to be determined by the trier of fact and the resolution of such issues are not proper on a motion for summary judgment (Kolivas v. Kirchoff, 14 AD3d 493 [2nd Dept. 2005]). The Defendant contends that in his Affidavit he testifies that the motor vehicle accident occurred when the Plaintiff’s vehicle was a complete stop on State Route 17A, and this raises an issue of credibility. As such, Defendant maintains that the Plaintiff’s and Defendant’s inconsistent Affidavits create an issue of fact and credibility that needs to be explored during discovery and ultimately determined by a jury. Defendant further argues that the instant motion for summary judgment is premature since depositions have not been held and discovery is not complete. Defendant avers that completing discovery is essential in this matter to address the lack of specificity in Plaintiff’s Affidavit about her actions leading up to the motor vehicle accident and to question the uninvolved motorist. Defendant contends that in the event this Court grants the instant motion for Summary Judgment he will be prejudiced as discovery is necessary. In reply Plaintiff reaffirms the assertion that Defendants were the sole proximate cause of the subject accident based upon Plaintiff’s Affidavit and the certified police report. Plaintiff further argues that the sudden stops are not automatically a nonnegligent explanation for a rear end collision (See, Newman v. Apollo Tech Iron Work Corp., 188 AD3d 902 [2nd Dept. 2020]). Furthermore, Plaintiff contends that Defendant’s argument that the instant motion is premature is erroneous. To that end, Plaintiff contends that the sole reason Defendant wishes to have discovery proceed prior to this Court determining this motion is to determine comparative fault. Plaintiff argues that comparative fault is not a bar to summary judgment on the issue of liability. Moreover, Plaintiff contends that Defendant has made conclusory assertions and provided no indication of how depositions, testimony or any documentation would lead to evidence of facts sufficient to justify opposition. The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law by tendering sufficient evidence to eliminate any material issues of fact from the case and to warrant a court to direct judgment in its favor, as a matter of law. See Civil Practice Law and Rules §3212(b); See Giuffrida v. Citibank Corp., et al., 100 NY2d 72 (2003), citing Alvarez v. Prospect Hosp., 68 NY2d 320 (1986); Zuckerman v. City of New York, 49 NY2d 557 (1980). Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers. See Winegrad v. New York University Medical Center, 64 N.Y. 2d 851 (1985). The Court finds that the Plaintiff has failed to meet her prima facie burden demonstrating entitlement to summary judgment in that there are material issues of fact as to the parties’ speed prior to the motor vehicle accident, how much time passed from when Plaintiff first applied her brakes to the moment of impact and whether Plaintiff was in fact at a complete stop at the moment of impact. Further, discovery is not complete as the depositions of any of the parties have not yet occurred and as such the Court finds the motion for summary judgment to be premature. See Lantigua v. Mallick, 263 A.D.2d 467, 468 (2d Dept. 1999). Plaintiff has failed to demonstrate his entitlement to the summary relief he has requested, therefore the motion is denied in its entirety. Accordingly, it is hereby ORDERED that Plaintiff’s Notice of Motion (Motion #1) is denied in its entirety with leave to re-file upon application to the Court; and it is further ORDERED that the parties are directed to appear for an in person Compliance Conference on Thursday, July 25, 2024, at 11:30a.m. The foregoing is the Decision and Order of the Court on Motion #1. Dated: April 16, 2024
