Biestek v. Rahuman

Biestek v Rahuman 2024 NY Slip Op 32348(U) July 9, 2024 Supreme Court, New York County Docket Number: Index No.: 150277/2021 Judge: James G. Clynes Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.

INDEX NO. 150277/2021 [FILED: NEW YORK COUNTY CLERK 07/10/2024 04:49 P~ NYSCEF DOC. NO. 103 RECEIVED NYSCEF: 07/10/2024

SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY

PRESENT: HON. JAMES G. CLYNES PART 22M Justice -----------------------.-----------------------------------------------------·---x INDEX NO. 150277/2021 BRETT BIESTEK, LESLIE SCHAEFER, MOTION DATE NIA Plaintiff. MOTION SEQ. NO. 004 -v- MOHAMMED RAHUMAN, MOHAMMED MUZAMMIL, DECISION+ ORDER ON REMI GAY, MAMADOU DIALLO MOTION Defendant. --... -------------------..... -------------------------------···· .... -------------x The following e-filed documents, listed by NYSCEF document number (Motion 004) 80, 81, 82, 83, 99. I 00. I 0 I were read on this motion to/for JUDGMENT - SUMMARY

Upon the foregoing documents, the motion by Defendant Remi Gay ("Gay") for summary

judgment in favor of the Defendant Gay, dismissing the Complaint and any cross-claims and/or

. counter-claims pursuant to CPLR 3211 and 3212 on the basis that Plaintiffs failed to establish a

prima facie case of liability as and against the moving Defendant as a matter of law and that

Defendant Gay is free from fault is decided as follows:

Background

Plaintiffs seek to recover for injuries allegedly sustained as a result of a July 12, 2020,

motor vehicle accident between a vehicle operated, with permission by the vehicles owner, by

Defendant Mohammad Rahuman ("Rahuman") within which Plaintiffs Brett Biestek and Leslie

Shaefer were passengers; a vehicle owned and operated by Defendant Remi Gay ("Gay"); and a

vehicle owned and operated by Defendant Mamadou Diallo ("Diallo"). The accident took place

between the parties on the westbound Brooklyn-Queens Expressway ("BQE'') near Exit 31. In

both Plaintiffs" and co-Defendants' Examinations Before Trial ("EBT"). all parties allege Diallo's

vehicle made impact with the rear of Gay's vehicle which subsequently made impact with the rear

of Rahuman' s vehicle within which Plaintiffs were passengers.

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In Plaintiff Brett Biestek's EBT, he testified that he was a passenger seated in the second

row of the vehicle behind the front passenger seat in an Uber driven by Rahuman that was traveling

westbound on the BQE. Plaintiff Biestek further testified that at the time of the accident,

Rahuman's vehicle was in the process of slowing down, but had not come to a complete stop. He

did not see the vehicle that made impact with Rahuman 's before the accident occurred.

In Plaintiff Leslie Shaefer's EBT, she testified that she was a passenger seated in the back

of the vehicle next to Plaintiff Biestek in an Uber driven by Rahuman on a highway between La

Guardia airport and "the city." She further testified that Rah um an' s vehicle had come to a

complete stop but may have been rolling forward for approximately two seconds before the

accident. She testified that she did not see any vehicles behind Rahuman's vehicle before the

accident.

In Rahuman's EBT, he testified that he was driving two Uber customers to Brooklyn from

Queens on the BQE. Rahuman further testified that he moved his vehicle into the exit lane for

Exit 31 and was stopped for one to two minutes before the accident occurred. Rahuman testified

that he "think[s ]" his vehicle was the last vehicle in traffic.

In Diallo's EBT, he testified that he \Vas driving westbound on the BQE with two non-

party customers seated in the rear of his vehicle at the time of the accident. Diallo further testified

that he does not recall whether the vehicle in front of his was moving or stopped at the time of the

accident and did not notice the vehicle in front of his before contact was made.

In Gay's EBT, she testified that she was driving westbound on the BQE with a non-party

passenger. Gay affirms her right foot was on the brake and her vehicle had come to a complete

stop for approximately five seconds before the accident and that the vehicle in front of hers was

stopped as well.

Discussion

To grant summary judgment, it must be clear that no material or triable issues of fact are

presented (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395 [1957]). The proponent of

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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

(Wine grad v NY Univ. Med. Ctr., 64 NY2d 851 [ 1985]). Once such entitlement has been

demonstrated by the moving party, the burden shifts to the party opposing the motion to

"demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action

or tender an acceptable excuse for his failure .. .to do [so]" (Zuckerman v New York, 49 NY2d 557,

560 [1980]). A defendant's motion for summary judgment opposed by a plaintiff must be decided

on the version of the facts most favorable to the plaintiff (Mullin v 100 Church LLC. 12 AD3d

263, 264 [1st Dept 2004]).

In support of the motion for summary judgment, Gay submits the Plaintiffs' summons and

complaint, Gay's answer, police report, Plaintiffs' EBTs, co-Defendanfs EBTs, and Gay's EBT.

The police report and EB Ts of all parties are in conflict as to the order of the vehicles involved at

the time of the accident. Gay testified in her EBT that she had come to a complete stop for

approximately five seconds and had her right foot on the brake when her vehicle was hit from the

rear without warning. Gay further testified that the impact launched her vehicle forward into the

rear of a vehicle that was also stopped.

"A rear-end collision with a stopped vehicle, or a vehicle slowing down, establishes a prima

facie case of negligence on the part of the operator of the rear-ending vehicle, which may be

rebutted if that driver can provide a non-negligent explanation for the accident" (Baez-Pena v MM

Truck & Body Repair, Inc .. 151 AD3d 473, 476 [1st Dept 2017] [internal citations omitted]).

Further, being propelled forward in a chain reaction collision is a non-negligent explanation for a

rear-end motor vehicle accident (see Arrasit v Sbordone, 225 A.D.2d 375 [1st Dep't 1996]).

In opposition, Diallo contends the question of fault should be determined by a jury. Diallo

testified that the front of his vehicle made contact with the rear of the other vehicle, and that prior

to the impact, he did not notice the other vehicle.

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Plaintiffs did not submit any materials m opposition to Gay's motion for summary

judgment.

In reply, Gay contends that Diallo failed to come forward with any evidence of a non-

negligent explanation for the rear end collision, nor does his opposition create a triable issue of

fact. "In a chain-reaction collision, responsibility presumptively rests with the rearmost driver

[ ... ]" (Mustafa} v Driscoll, 5 AD3d 13 8 [1st Dept 2004 J [internal citations omitted]). In Mustafa},

the plaintiff was a passenger in the first vehicle of a three-car collision, resulting in the plaintiffs

injuries. The second vehicle in the collision was stopped behind the plaintiffs vehicle when it

was struck in the rear by the third vehicle propelling it forward into the rear of plaintiffs vehicle

(Id. at 138, 139). The court found it to be undisputed that the third car first rear-ended the second

car, propelling it forward and that the plaintiff failed to raise a triable issue sufficient to defeat the

second vehicle defendant's motion for summary judgment (Id. at 139).

Here, like in Mustafa}, it is undisputed that Gay's vehicle was at a complete stop when it

was struck in the rear by Diallo's vehicle, propelling Gay forward. The parties' testimony Gay

submitted establishes a prima facie entitlement to summary judgment (see Winegrad 64 NY2d at

851; Zuckerman 49 NY2d at 560). Plaintiffs did not respond in opposition and Diallo has failed

to provide a non-negligent explanation to defeat Gay's motion for summary judgment. Diallo's

testimony fails to raise a non-negligent explanation for the rear end collision. Diallo failed to

establish that he maintained a safe following distance (see YTL 1129 [a]; Baez-Pena v MM Truck

& Body Repair, Inc., 151 AD3d 473 [Ist Dept 2017]). Gay's motion for summary judgment is

granted. Accordingly, it is

ORDERED that the motion of Defendant Remi Gay to dismiss the complaint herein is

granted and the complaint and any cross-claims are dismissed in their entirety as against said

defendant, and the Clerk is directed to enter judgment accordingly in favor of said defendant; and

it is further

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[FILED: NEW YORK COUNTY CLERK 07/10/2024 04:49 P~ INDEX NO. 150277/2021 NYSCEF DOC. NO. 103 RECEIVED NYSCEF: 07/10/2024

ORDERED that the action is severed and continued against the remaining Defendants;

and it is further

ORDERED that the caption be amended to reflect the dismissal and that all future papers

filed with the court bear the amended caption; and it is further

ORDERED that counsel for the moving party shall serve a copy of this order with Notice

of Entry upon the Clerk of the Court and the Clerk of the General Clerk's Office, who are directed

to mark the court's records to reflect the change in the caption herein; and it is further

ORDERED that such service upon the Clerk of the Court and the Clerk of the General

Clerk· s Office shall be made in accordance with the procedures set forth in the Protocol on

Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the "E-

Filing" page on the court's website).

This constitutes the Decision and Order of the Court.

7/9/2024 DATE JAMES G. CLYNES, J.S.C. CHECK ONE: CASE DISPOSED NON-FINAL DISPOSITION

GRAl'>:TED D DENIED GRANTED IN PART D OTHER APPUCATION: SETTU; ORDER SUBMIT OROER

CllECK IF APPROPRIATE: lr>;Cl.UDES TRA:-.;SFEIVRF:ASSIGN FIDUCIARY APl'Ol'.'OTMEr.T D REFERENCE

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