Motion-Secondary: Young S. Leenam, Soonil Nam v. Sangwoo Lee

On March 12, 2018 a Motion-Secondary was filed involving a dispute between Soonil Nam, Young S. Leenam, and Sangwoo Lee, for Torts - Motor Vehicle in the District Court of Queens County.

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FILED: QUEENS COUNTY CLERK 06/06/2018 02:24 PM INDEX NO. 703743/2018
NYSCEF DOC. NO. 7 RECEIVED NYSCEF: 06/06/2018

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS: Part 35

----------------------------------------------------------------------X Index No.

YOUNG S. LEENAM and SOONIL NAM, 703743/2018

Plaintiffs, AFFIRMATION
IN SUPPORT OF
-against- PLAINTIFFS'
PLAlM
MOTION
SANGWOO LEE,
Defendant.

----------------------------------------------------------------------X

STEVEN LOUROS, an attorney duly admitted to practice law in the Courts

of the State of New York, affirms under the penalties of perjury as follows:

1. I am the attorney for the Plaintiffs and as such, I am fully familiar with

all the facts and circumstances heretofore had herein. This is a rear end collision

case.

2. This affirmation is respectfully submitted in support of the instant

application seeking an order granting Summary Judgment in favor of the Plaintiffs

against the Defendant. Plaintiffs are submitting this motion for Summary Judgment

since there exists no issues of fact requiring a liability trial.

3. On April 30, 2017, at approximately 12:30 p.m., plaintiff Young S.

Leenam was the driver and the owner of a 2015 Honda motor vehicle. The weather

was clear and dry. The collision happened on Northern Boulevard at the intersection

1680¹
with Street, in the County of Queens, State of New York. Northern Boulevard

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is a two way street with two lane of moving traffic in either direction. There is no

168th
traffic control device for traffic on Northern Boulevard at the intersection with

Street.

4. At the time of collision, plaintiff was driving her vehicle in the left lane

traveling westbound on Northern Boulevard.

5. The traffic on Northern Boulevard was heavy at the time. When

169th
plaintiff passed Street, she observed vehicles stopped for the red light at the

167th 168th
intersection of Street. The vehicles were backed up to Street. So, plaintiff

168th
gradually slowed down to stop at the intersection of Street aS not 10 block the

intersection. As plaintiff slowed, she was struck in the rear by a 2014 Toyota motor

vehicle operated and owned by Defendant Sangwoo Lee.

6. The above-captioned action was commenced by the filing of a

Summons and Verified Complaint against the defendant. A copy of the Summons

and Verified Complaint along with defendant's answer are annexed collectively

herein as Exhibit "A". A certified copy of the Police Accident Report is annexed

herein as Exhibit "B". A copy of the Verified Bill of Particulars is annexed herein

as Exhibit "C".

PLAINTIFF IS ENTITLED TO SUMMARY JUDGMENT ON LIABILITY
DEFENDANT'
AGAINST THE DEFENDANT AND STRIKING THE DEFENDANT'S
AFFIRMATIVE DEFENSE OF COMPARABLE NEGLIGENCE

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7. As seen in the accompanying affidavit of the plaintiff Young S.

Leenam, on April 30, 2017, at approximately 12:30 p.m., she was the driver of a

2015 Honda motor vehicle slowing down for traffic on Northern Boulevard at the

168th
intersection of Street in the County of Queens, City and State of New York.

The defendant Sangwoo Lee, the owner and operator of a year 2014 Toyota motor

vehicle, was travelling behind plaintiff's vehicle. While plaintiff's vehicle was

gradually slowing down, defendant's vehicle inexplicably struck the rear of

plaintiff's vehicle.

8. The certified copy of the police report provides, in pertinent part:

At TOP Driver 1 states while slowing down for traffic on westbound

Northern Blvd she was rear ended by vehicle 2. Driver 2 states vehicle

1 stopped suddenly in front of him on westbound northern Blvd causing
him to rear end vehicle 1. All parties refused medical attention.

The police accident report which contained the defendant driver's admission

immediately following the accident can be considered along with plaintiff's bill of

particulars and affidavit in support of the instant motion. See Ricci v. Lo, 95 A.D.3d

859, 942 N.Y.S.2d 644, (2d Dept. 2012); Abramov v. Miral Corp., ., 24 A.D.3d 397

(2d Dept. 2005); Jermin v. APA Truck Leasing Co., 237 A.D.2d 255 (2d Dept.

1997). The cause of the collision was that the defendant was following too closely

and defendant driver's inattention and distraction.

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9. "Vehicle stops which are foreseeable under the prevailing traffic

conditions, even if sudden and frequent, must be anticipated by the driver who

follows, since he or she is under a duty to maintain a safe distance between his or

ahead,"
her car and the car Sharmah v. Richmond County Ambulance Serv., 719

N.Y.S.2d 287, 279 A.D.2d 564, 565 (2d Dept., 2001); see Le Grand v. Silverstein,

supra at 773.

10. The defendant's claim that the vehicle immediately in front, i.e.,

plaintiff's vehicle, made a sudden stop, standing alone, is insufficient to rebut the

(2nd
presumption of negligence. PARRA v. Hughes, Dept., 2010) 2010 NY Slip Op

9898; 2010 NY App. Div. Lexis 9758; Campbell v. City of Yonkers, 37 A.D.3d 750,

(2nd (2nd
751; Franco v. Breceus, Dept., 2010) 70 A.D.3d 767. Danza v. Longieliere,

(2nd
Dept., 1998) 256 A.D.2d 434, Byrne v. Calogero, 96 A.D.3d 704 Dept., 2012).

11. "A rear-end collision with a stopped or stopping vehicle creates a prima

facie case of liability against the rear operating vehicle, thereby requiring the

operator to rebut the inference of negligence by providing a non-negligent

collision."
explanation for the Reed v. New York City Trans. Auth., 299 A.D.2d

(2nd (2nd
330 Dept., 2002); Campanella v. Moore, 266 A.D.2d 423 Dept., 1999).

Pursuant to the New York State Vehicle and Traffic Law § l 129(a), drivers are under

a duty to maintain a safe distance between their vehicles and those in front of them.

Likewise, defendant's conclusory and self-serving excuse that the plaintiff made a

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sudden stop is insufficient as a matter of law to defeat summary judgment. (see

(2nd
Kastritsios v. Marcello Dept., 2011) 84 A.D. 3d 1174, 923 N.Y.S. 2d 863).

12. The recent case of Joseph Bene v. Lynn Dalessio 22 N.Y.S.3d 237, 135

A.D.3d 679 (2nd Dept., 2016), is directly on point. In that case, the court held:

The plaintiff established his prima facie entitlement to judgment as a

matter of law on the issue of liability by submitting evidence

demonstrating that he had been stopped in traffic for about 30 seconds
defendants'
when he was rear-ended by the vehicle (see, Sokolowska

v. Song, 123 A.D.3d 1004, 1005, 999N.Y.S.2d 847; Lisetskiy v. Weiss,

123 A.D.3d 775, 777, 999 N.Y.S.2d 83; Gallo v. Jairath, 122 A.D.3d

795, 797, 996 N.Y.S.2d 682). In opposition, the defendants failed to

raise a triable issue of fact. The defendant driver's contention that the

plaintiff's vehicle came to a sudden stop was conclusory and

insufficient, in and of itself, to provide a non-negligent explanation for

the rear-end collision, (see, Brothers v. Bartling, 130 A.D.3d 554, 556,
13 N.Y.S.3d 202; Xian Hong Pan v. Buglione, 101 A.D.3d 706, 707,
955 N.Y.S.2d 375).

Furthermore, the defendant driver's contention that she did not recall seeing brake

lights or any other illumination on the plaintiff's vehicle prior to the collision was

also insufficient to raise a triable issue of fact (see, Balducci v. Velasquez, 92

A.D.3d 626, 629, 938 N.Y.S.2d 178). In the case at bar, plaintiff demonstrated that

she had been slowing down as a result of traffic when she was rear-ended by

defendant's vehicle.

13. The same self-serving excuse by defendant of a sudden stop has been

rejected time and time again by the Appellate Division, Second Department. In the

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case of Gavrilova v. Stark 11 N.Y.S.3d 656, 129 A.D.3d 907 (2015) (2d Dept. 2015),

the court stated:

Stark's mere conclusory assertion that the Kolmanovskiy vehicle

stopped suddenly was insufficient to raise a triable issue of fact in

opposition to the motion (see generally Harrington v. Kern, 52 A.D.

3d 473, 859 N.Y.S. 2d 480; Johnston v. Spoto, 47 A.D. 3d 888, 850

NYS 2d 204; David v. New York City Bd. Of Educ., 19 A.D. 3d 639,

797 NYS 2d 294).

Similarly, defendant's mere conclusory assertion that plaintiff's vehicle stopped

suddenly is insufficient to raise a triable issue of fact.

14. In Jumandeo v. Franks (2nd Dept., 2008) 56 A.D. 3d 614; 867 N.Y.S

2d 541; the court reversed the lower court holding:

The defendant's contention in that she was at 15-
opposition, travelling
20 miles per hour approximately two car lengths behind the plaintiff,

when the plaintiff suddenly stopped, did not rebut the inference of

negligence by providing a non-negligent explanation for the collision

(see Lundy v. .Llatin, . 51 A.D.3d 877, 858 NYS -d
2d 341 755488 Ahmad

v. Grimaldi, 40 A.D. 3d 786, 834 NYS 2d 480 [2007]; Russ v. Investech

Secs., 6 A.D. 3d 602, 775 NYS 2d 867 [2004]). Therefore, the
plaintiffs'
motion for summary judgment on the issue of liability should

have been granted.

Likewise, it is respectfully submitted that the plaintiff's motion for summary

judgment on liability should be granted.

15. On a motion for summary judgment, the test to be applied is whether

triable issues of fact exist or whether on the proof submitted judgment can be granted

to a party as a matter of law. (See, Andre v. Pomeroy, 35 N.Y.2d 361 [Court of

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Appeals, 1974].) The movant must set forth a prima facie showing of entitlement to

judgment as matter of law, tendering sufficient evidence to demonstrate the absence

of any material issue of fact. (See, Alvarez v. Prospect Hospital, 68 N.Y.2d 320

[Court of Appeals, 1986].) Once the movant sets forth a prima facie case, the burden

shifts to the opponent of the motion to produce evidentiary proof in admissible form

sufficient to establish the existence of material issues of fact. (See, Zuckerman v.

City of New York, 49 N.Y.2d 557 [Court of Appeals, 1980].)

16. The defendant violated NYS Vehicle and Traffic Law Section 1129(a)

which provides:

§1129. Following too closely

(a) The driver of a motor vehicle shall not follow another vehicle

more closely than is reasonable and prudent, having due regard for the

speed of such vehicles and the traffic upon and the condition of the

highway.

17. Thus, any vehicle which fails to follow another vehicle more closely

than is reasonable and prudent is negligent pursuant the New York State Vehicle and

Traffic Law. The Appellate Division here in the State of New York has also

recognized this and has found that Summary Judgment applies under the

circumstances of the instant case, as evidenced by the fact that it has consistently

upheld lower Court decisions that granted Summary Judgment with facts similar to

the case at bar.

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18. It is uncontroverted that the front of defendant's motor vehicle struck

the rear of the plaintiff's motor vehicle. The cause of this crash was defendant's

driver'
failure to maintain a safe distance behind plaintiff's vehicle and defendant driver's

distraction and inattention. As a matter of law, the moving plaintiff is entitled to

Summary Judgment.

19. It It is well established that a rear-end collision with a stopped or

stopping vehicle creates a prima facie case for negligence with respect to the

operator of the rear vehicle and imposes a duty on the operator of the rear vehicle to

come forward with an adequate, non-negligent explanation for the accident. (see

[2nd
Volpe v. Limoncelli, 74 A.D.3d 795, 795 Dept., 2010]; Foti v. Fleetwood Ride,

[2nd
Inc., 57 A.D.3d 724, 724 Dept., 2008]; Ahmad v. Grimaldi, 40 A.D.3d 786, 787

[2nd
Dept., 2007]; Emil Norsic & Son, Inc. v. L.P. Transp., . Inc., 30 A.D.3d 368, 368

[2nd
Dept., 2006].) If the operator of the rear vehicle cannot come forward with

evidence to rebut the inference of negligence, the operator of the lead vehicle is

entitled to summary judgment. (see Dileo v. Greenstein, 281 A.D.2d 586, 586

[2001]; Lopez v. Minot, 258 A.D.2d 564, 564 [1999].)

20. A recent Court of Appeals decision of Carlos Rodriguez, Appellant, v

City of New York, Respondent, 2018 N.Y. LEXIS 793, 2018 NY Slip Op 02287,

2018 WL 1595658, decided on or about April 3, 2018, is instructive. Rodriguez held

that "[T]o be entitled to summary judgment a plaintiff does not bear the double

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burden of establishing a prima facie case of defendant's liability and the absence of

fault."
his or her own comparative In fact, the Court of Appeals in Rodriguez held

that summary judgment on liability should be granted by a trial court to plaintiff if

plaintiff establishes a prima facie case. Id. In the present case, the plaintiff was not

comparably negligent as a matter of law.

21. The proof submitted in support of this application establishes that

plaintiff"
plaintiff's motor vehicle was struck from behind. Such proof is sufficient to establish

a prima facie case of liability on the part of the defendant and to impose a duty upon

her to offer a reasonable non-negligent explanation for the collision. .~S.A
Sass vs. Amboy

Trans Inc., 657 N.Y.S.2d 69 (1997); Barba vs. Best Security Corp., 652 N.Y. S.2d

71 (1997 and the cases cited therein).

22. On deciding a motion for Summary Judgment, the Court should not

"strain to find issues, however nebulous, which may preserve an unfounded claim

for litigation and negotiation. Kaye v. Hiclonan, 38 A.D.2d 754, 329 N.Y.S.2d 640,

642 (2d Dept. 1971) (quoting Donlon vs. Pugliese, 27 A.D.2d 786, 787, 277

N.Y.S.2d 334, 335 (3d Dept. 1967). Additionally, mere speculation that an

improbable circumstance could exist is not enough to defeat a motion for Summary

Judgment. Hewett vs. Marine Midland Bank, 86 A.D.2d 263, 449 N.Y.S.2d 745, 759

(2d Dept. 1982).

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23. The proof before the Court clearly demonstrates that the plaintiff is not

responsible for the manner in which the accident took place and is entitled to

Summary Judgment. Therefore, the credible evidence before this Court makes out a

prima facie case against the defendant and Summary Judgment should be granted as

to the moving plaintiff against the defendant.

24. The defendant has no meritorious defense to this action on the issue of

liability. It is respectfully submitted that the plaintiff should be awarded Summary

Judgment on liability against the defendant, and the matter set down for an

immediate trial on damages.

25. In opposing plaintiff's motion for summary judgment, the defendant is

required to come forward with evidentiary proof in admissible form sufficient to

require a trial. (Zuckerman v. City of New York, supra; Parise v. Meltzer, 204

A.D.2d 295 [2nd Dept., 1994]; Rebecchi v. Whitmore, 172 A.D.2d 600 [2nd Dept.,

short"
1991].) Defendant's claim that plaintiff "stopped is insufficient to raise a

triable issue of fact. Insofar as the defendant failed to defeat plaintiff's prima facie

case with credible evidence to raise a triable issue of fact as to any negligence on

their part, plaintiff is entitled to summary judgment as to liability. (Mascitti v.

Greene, 250 AD2d 821 [2nd Dept., 1998]; Bendick v. Dybowski, 227 AD2d 228

[1st Dept., 1996].)

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26. The plaintiff's motion is not premature, as the defendant failed to

demonstrate that discovery might lead to relevant evidence or that facts essential to

opposition to the motion which were exclusively within the knowledge and
justify

[2nd
control of 6 plaintiff. (See Deleg v. Vinci, 82 A.D.3d 1146 Dept., 2011];

[2nd
Kimyagarov v. Nixon Taxi Corp., ., 45 A.D.3d 736 Dept., 2007].) "[T]he

defendants'
purported need to conduct discovery did not warrant denial of the

facts,"
motion since already had personal knowledge of the relevant (See,
they

[2nd
Lampkin
~ v. Chan,~ 68 A.D.3d 727 Dept., 2009]; Emil Norsic & Son, Inc. v. L.P.

[2nd
Transp., Inc., 30 AD3d
.,30AD3d 368 [ Dept., ., 2006]; Abramov v. .Miral Corp., 24 A.D.3d

[2nd
397 Dept., 2005].) "The mere hope or speculation that evidence sufficient to

defeat a motion for summary judgment may be uncovered during the discovery

motion."
process is insufficient to deny the (See, Monteleone v. Jung Pyo Hong, 79

[2nd [2nd
AD3d 988 Dept., 2010]; Lopez v. WS Distrib., Inc., 34 A.D.3d 759 Dept.,

[2nd
2005]; see also, Corwin v. Heart Share Human Servs. of N.Y., 66 A.D.3d 814

Dept., 2009].)

27. The defendant has no meritorious defense to this action on the issue of

liability. It is respectfully submitted that plaintiffs motion for summary judgment as

to defendant's liability should be granted.

WHEREFORE, it is respectfully requested that plaintiffs motion be granted

in its entirety.

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Dated: New York, New York
June 4, 2018

STEVEN LOUROS, ESQ.
SL/jp

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Case Info

Judge

Timothy J Dufficy Track Judge’s New Case

Case No.

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Document Filed Date

June 06, 2018

Case Filing Date

March 12, 2018

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