Hutchinson v. Salem Truck Leasing, Inc.

Hutchinson v Salem Truck Leasing, Inc. 2020 NY Slip Op 35561(U) May 22, 2020 Supreme Court, Bronx County Docket Number: Index No. 29990/2019E Judge: John R. Higgitt 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.

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SUPREME COURT OF THE ST ATE OF NEW YORK COUNTY OF BRONX: IA PART 14 --------------------------------------------------------------------X JOHN HUTCHINSON, JR., Plaintiff, DECISION AND ORDER

- against - Index No. 29990/2019E SALEM TRUCK LEASING, INC. , FISCHER FOODS OF NEW YORK, INC. and JERRY SMITH III, Defendants. --------------------------------------------------------------------X Present: John R. Higgitt, J.S.C.

Upon plaintiffs December 27, 2019 notice of motion and the affirmation, affidavit and

exhibits submitted in support thereof; defendants ' March 20, 2020 affirmation in opposition;

plaintiffs March 20, 2020 affirmation in reply ; and due deliberation; plaintiffs motion for

partial summary judgment on the issue of defendants' liability for causing the subject motor

vehicle accident and for dismissal of defendants ' first, sixth, seventh, ninth and tenth affirmative

defenses is granted.

In support of the motion, plaintiff submits his affidavit in which he avers that the vehicle

he was driving had been stopped at a right traffic signal for approximately five seconds when it

was struck from behind by defendants ' vehicle. Plaintiff also submits the certified police

accident report containing the statement, ostensibly of defendant Smith, that the vehicle he was

driving struck the rear of plaintiffs vehicle when plaintiffs vehicle stopped short while

approaching a traffic signal that was changing from yellow to red. This statement is admissible

as an admission (see Thompson v Coca-Cola Bottling Co. , 170 AD3d 588 [I st Dept 2019];

Liburd v Lulgjuraj, 156 AD3d 532 [1st Dept 2017]).

This proof was sufficient to meet plaintiffs prima facie burden on the issue of

defendants ' negligence. " It is well settled that a rear-end collision with a stopped or stopping [* 1] 2 of 6

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vehicle establishes a prima facie case of negligence on the part of the driver of the rear vehicle,

and imposes a duty on the part of the operator of the moving vehicle to come forward with an

adequate nonnegligent explanation for the accident" (Cabrera v Rodriguez, 72 AD3d 553, 553

[1st Dept 2010]).

Defendants assert that the motion is premature because the parties have not yet been

deposed. This is an insut1icient basis upon which to deny the motion, because the relevant facts

are within defendant Smith's knowledge and defendants failed to explain why they could not

submit evidence in admissible form sufficient to warrant denial of the motion (see Alvarez v

Prospect Hosp., 68 NY2d 320, 324 [1986]) or what discovery was needed to oppose the motion

(see Santana v Danco Inc., 115 AD3d 560, 560 [1st Dept 2014]). Defendants failed to explain

why they did not maintain a safe distance from plaintiff's vehicle to avoid striking it in the rear

(see Tejeda v Aifa, 134 AD3d 549 [1st Dept 2015]).

Defendants also assert that the differing versions of facts appearing the police accident

report raise issues of fact precluding summary relief. Under either scenario, however, defendants

have failed to raise an issue of fact.

"[A]n assertion that the driver of a rear-ended vehicle made a sudden stop on a local

public roadway within the City of New York, standing alone, is insufficient to raise a triable

issue of fact as to whether the driver of the rear-ending vehicle has a nonnegligent explanation"

(Animah v Agyei, 63 Misc 3d 783, 790 [Sup Ct, Bronx County 2019]). Whether plaintiff was

stopped at a red light or stopped suddenly while approaching an intersection concededly

governed by a red-turning traffic signal, plaintiffs stop occurred precisely when and where it

should be anticipated that a stop would occur (see Catanzaro v Edery, 172 AD3d 995 [2d Dept

2019]; Tumminello v City of NY., 148 AD3d 1084 [2d Dept 2017]). Accordingly, the variants in

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the stories relayed to the responding police officer do not provide a non-negligent explanation for

the accident and do not raise an issue of fact (see Malone v Morillo, 6 AD3d 324, 325 [l st Dept

2004]; see also Morales v Consolidated Bus Transit, Inc ., 167 AD3d 457 [1st Dept 20 18]

[sudden stop mid-block]; Giap v Hathi Son Pham , 159 AD3d 484 [1st Dept 2018] [sudden stop] ;

Alvarez v Bryant, 143 AD3d 527 [1st Dept 2016] [sudden stop in intersection]; Williams v

Hamilton, 116 AD3d 421 [1st Dept 2014] [sudden stop at intersection]).

Plaintiff also seeks dismissal of defendants' first affirmative defense alleging the failure

to state a cause of action, sixth affirmative defense alleging the "operation of nature," seventh

affirmative defense alleging plaintiff's culpable conduct, ninth affirmative defense alleging the

actions or omissions of intervening or superseding parties, and the tenth affirmative defense

alleging the lack of jurisdiction.

Defendants assert that dismissal of the affirmative defenses is premature in the absence of

discovery and because the viability of the affirmative defenses is within plaintiff's sole

knowledge.

To warrant dismissal of an affirmative defense, plaintiff must demonstrate that the

defense is without merit as a matter oflaw (see CPLR 321 1[b]; Ca/po-Rivera v Siroka, 144

AD3d 568 [1st Dept 2016]). "On such a motion, the allegations set forth in the answer must be

viewed in the light most favorable to the defendants, and the defendant is entitled to the benefit

of every reasonable intendment of the pleading, which is to be liberally construed"' (Pugh v

N. Y C. Hous. Auth., 159 AD3d 643, 643 [1st Dept 2018] [citations and quotation marks

omitted]). A defense should not be dismissed "where there remain questions of fact requiring a

trial" (Granite State Ins. Co. v Transatlantic Reinsurance Co., 132 AD3d 479, 481 [I st Dept

2015]).

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With respect to the first affirmative defense alleging the failure to state a cause of action,

the foregoing demonstrates that the complaint sufficiently states a cause of action against

defendants for negligence. The affirmative defense is therefore without merit (see CPLR

3211 [b ]).

With respect to defendants' sixth affirmative defense alleging that the accident was

caused, in whole or in part, by the "operation of nature," the defense is akin to an "act of God"

defense (see e.g. Tel Oil Co. v City o_f Schenectady, 278 AD2d 571 [l st Dept 2000]), and

encompasses "natural causes, such as could not be prevented by human care, skill and foresight"

(Prashant Enters. v State, 206 AD2d 729, 730 [I st Dept 1994]). Plaintiff's proof demonstrates

that the accident was a rear-end accident between two motor vehicles on a local roadway at or

near an intersection controlled by a traffic signal, and that the attendant environmental factors

were neutral or non-contributory. Plaintiff demonstrated that the accident did not involve any

circumstance that was "unusual, extraordinary [or] unprecedented " ( Verdugo v Seven Thirty One

Ltd. P 'ship, 70 AD3d 600, 602 [1st Dept 201 0]). Defendants, whose driver obviously had

personal knowledge of the circumstances of the accident and who failed to submit evidence,

admissible or otherwise, in opposition to the motion, failed to raise an issue of fact as to the merit

of this defense.

With respect to defendants ' seventh affirmative defense alleging plaintiff's culpable

conduct, even if plaintiff stopped suddenly during his approach to a red-turning traffic signal at

an intersection, this is insufficient to raise an issue of fact, and dismissal of the defense is

warranted (see Smyth v Murphy, 177 AD3d 492 [1st Dept 2019]; Elihu v Nicoleau, 173 AD3d

578 [1st Dept 2019]).

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With respect to defendants ' ninth affirmative defense alleging that the accident was

caused by the actions or omissions of intervening or superseding parties, plaintiff's description of

the events involves no persons other than plaintiff and defendants, and defendants failed to raise

an issue of fact.

With respect to the affirmative defense alleging the lack of jurisdiction, defendants assert

that they are waiving the defense (see CPLR 3211 [e]).

Accordingly, it is

ORDERED, that plaintiff's motion for partial summary judgment on the issue of

defendants' liability for causing the subject motor vehicle accident and for dismissal of

defendants' first, sixth, seventh, ninth and tenth affirmative defenses is granted; and it is further

ORDERED, that defendants' first, sixth, seventh, ninth and tenth affirmative defenses are

dismissed; and it is further

ORDERED, that the Clerk of the Court shall issue a case scheduling order on July 31,

This constitutes the decision and order of the court.

Dated: May 22, 2020

H o n . ~.S.C.

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