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DEX 0. 000 0
BRONRECEIVED NYSCEF: 07/07/2016
PART 10E
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF BRONX
Ss ae ag
Avilas, Jacqueline Index Ne, 20005/14E
Hon. Lizbeth Gonzalez
- against - Justice.
Barcia, Frank
separ ee 3 Sere pe ae ec ne ee BG
The following papers numbered 1 to Read on this motion,
Noticed on February 24, 2016 and duly submitted as No. on the Motion Calendar of ___
PAPERS NUMBERED
Notice of Motion - Order to Show Cause - Exhibits and Affidavits Annexed
Answering Affidavit and Exhibits
Replying Affidavit and Exhibits
Affidavits and Exhibits
Pleadings - Exhibit
Stipulation(s) - Referee's Report - Minutes
Filed Papers
Memoranda of Law
Respectfully Referred to:
Upon the foregoing papers this motion is decided in accordance with the annexed Decision and Order.
Dated: 6/29/ 7.
Lizbeth Gonzalez, J.S.C.SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF BRON
Jacqueline Avilas,
Plaintiff,
-against- DECISION and ORDER
Index No 20005/2014E
Frank Barcia,
Defendant.
HON. LIZBETH GONZALEZ
Plaintiff Avilas commenced the underlying action on the grounds that she sustained
serious injuries when defendant Barcia rear-ended her vehicle. The plaintiff moved for summary
judgment pursuant to CPLR 3212 on the issue of liability. By Order dated 12/18/15, this Court
granted plaintiff's motion without opposition. Defendant Barcia now moves to reargue and renew
on the basis that thee Court deemed the plaintiff's motion as unopposed but it was prematurely
submitted since the parties stipulated to an adjournment. Upon granting his motin to reargue and
renew, defendant Barcia maintains that his deposition testimony presents a triable issue of fact
and accordingly, requests the Court to reverse its 12/18/15 Order. Plaintiff Avilas opposes the
motion.
When seeking to reargue a motion, the movant must submit a complete set of the
originally submitted motion papers. Annexed to the defendant’s motion are the pleadings,
plaintiffs previously submitted motion absent the accompanying documents, the referenced
stipulation, this Court’s 12/18/15 Order and defendant’s deposition testimony. Notwithstanding,
the defendant’s omission of the papers is not prejudicial to the plaintiff. (Sachar v Columbia
Pictures Industries, Inc., 129 AD3d 420 [1* Dept 2015] citing HSBC Bank USA, NA v Halls, 98
AD3d 718 [2" Dept 2012]; CPLR 2001].) The defendant’s motion to reargue and renew is
granted.
In support of his position, defendant Barcia submits his 7/21/15 deposition testimony.
Mr. Barcia states therein that he was traveling about 15 to 20 miles per hour behind plaintiff
Avila’s vehicle after they respectively merged onto the Brooklyn-Queens Expressway. While
traveling in the lefi lane, the defendant observed Ms. Avila’s vehicle stopped after rear-ending
the vehicle before her. Mr. Barcia applied his brakes hard but a fourth vehicle rear-ended his
2 of 3vehicle, pushing him into plaintiffs vehicle, before backing up and leaving the accident scene.
The plaintiff, wearing a police uniform and displaying a badge, exited her vehicle and traversed
back and forth looking at the cars; she showed no concern for the well-being of the parties
involved. When the police officer arrived, Mr. Barcia allegedly informed the officer of the fourth
vehicle. The officer responded, “Nobody said that” whereupon defendant said, “Look at the
debris it’s fresh. Paint is still peeling off.” The officer saw the debris on the ground in the rear of
defendant’s vehicle and said. “Okay.”
In opposition, plaintiff Avilas contends that the defendant fails to proffer a non-negligent
explanation for rear-ending her vehicle since he was traveling too close, “about a half a car
length;” there were no distractions and traffic was heavy.
New York State law requires drivers to maintain a safe distance between their vehicles
and any vehicles in front of them. (Vehicle and Traffic Law§ 1129 [a]; De La Cruz v Ock Wee
Leong, 16 AD3d 199 [1" Dept 2005].) In a chain-reaction collision, responsibility presumptively
rests with the rearmost driver. (De La Cruz v Ock Wee Leong, 16 AD3d 199 [1* Dept 2005];
Mustafaj v Driscoll and Lugo, 5 AD3d 138 [1* Dept 2004].) Here, according to plaintiff, the
rear-most driver is defendant Barcia. According to Mr. Barcia, however, a fourth unidentified
vehicle, was the rear-most driver. Conflicting testimony by the parities as to the liability of each
driver is best left up to the trier of fact. (Odikpo v American Tr., Inc., 72AD3d 568 [1* Dept
2010].)
Based on the foregoing, the Court finds that defendant Barcia’s deposition testimony
creates a triable issue of fact. The Court accordingly reverses its 12/18/15 Order granting the
plaintiff's motion for summary judgment.
Service of a copy of this Decision and Order with Notice of Entry shall be effected within
30 days.
Dated: June 28, 2016
So ordered,
Hon. Lizbeth Gonzpilez, JSC
3 of 3
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DEX 0. 000 0 BRONRECEIVED NYSCEF: 07/07/2016 PART 10E SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX Ss ae ag Avilas, Jacqueline Index Ne, 20005/14E Hon. Lizbeth Gonzalez - against - Justice. Barcia, Frank separ ee 3 Sere pe ae ec ne ee BG The following papers numbered 1 to Read on this motion, Noticed on February 24, 2016 and duly submitted as No. on the Motion Calendar of ___ PAPERS NUMBERED Notice of Motion - Order to Show Cause - Exhibits and Affidavits Annexed Answering Affidavit and Exhibits Replying Affidavit and Exhibits Affidavits and Exhibits Pleadings - Exhibit Stipulation(s) - Referee's Report - Minutes Filed Papers Memoranda of Law Respectfully Referred to: Upon the foregoing papers this motion is decided in accordance with the annexed Decision and Order. Dated: 6/29/ 7. Lizbeth Gonzalez, J.S.C.SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRON Jacqueline Avilas, Plaintiff, -against- DECISION and ORDER Index No 20005/2014E Frank Barcia, Defendant. HON. LIZBETH GONZALEZ Plaintiff Avilas commenced the underlying action on the grounds that she sustained serious injuries when defendant Barcia rear-ended her vehicle. The plaintiff moved for summary judgment pursuant to CPLR 3212 on the issue of liability. By Order dated 12/18/15, this Court granted plaintiff's motion without opposition. Defendant Barcia now moves to reargue and renew on the basis that thee Court deemed the plaintiff's motion as unopposed but it was prematurely submitted since the parties stipulated to an adjournment. Upon granting his motin to reargue and renew, defendant Barcia maintains that his deposition testimony presents a triable issue of fact and accordingly, requests the Court to reverse its 12/18/15 Order. Plaintiff Avilas opposes the motion. When seeking to reargue a motion, the movant must submit a complete set of the originally submitted motion papers. Annexed to the defendant’s motion are the pleadings, plaintiffs previously submitted motion absent the accompanying documents, the referenced stipulation, this Court’s 12/18/15 Order and defendant’s deposition testimony. Notwithstanding, the defendant’s omission of the papers is not prejudicial to the plaintiff. (Sachar v Columbia Pictures Industries, Inc., 129 AD3d 420 [1* Dept 2015] citing HSBC Bank USA, NA v Halls, 98 AD3d 718 [2" Dept 2012]; CPLR 2001].) The defendant’s motion to reargue and renew is granted. In support of his position, defendant Barcia submits his 7/21/15 deposition testimony. Mr. Barcia states therein that he was traveling about 15 to 20 miles per hour behind plaintiff Avila’s vehicle after they respectively merged onto the Brooklyn-Queens Expressway. While traveling in the lefi lane, the defendant observed Ms. Avila’s vehicle stopped after rear-ending the vehicle before her. Mr. Barcia applied his brakes hard but a fourth vehicle rear-ended his 2 of 3vehicle, pushing him into plaintiffs vehicle, before backing up and leaving the accident scene. The plaintiff, wearing a police uniform and displaying a badge, exited her vehicle and traversed back and forth looking at the cars; she showed no concern for the well-being of the parties involved. When the police officer arrived, Mr. Barcia allegedly informed the officer of the fourth vehicle. The officer responded, “Nobody said that” whereupon defendant said, “Look at the debris it’s fresh. Paint is still peeling off.” The officer saw the debris on the ground in the rear of defendant’s vehicle and said. “Okay.” In opposition, plaintiff Avilas contends that the defendant fails to proffer a non-negligent explanation for rear-ending her vehicle since he was traveling too close, “about a half a car length;” there were no distractions and traffic was heavy. New York State law requires drivers to maintain a safe distance between their vehicles and any vehicles in front of them. (Vehicle and Traffic Law§ 1129 [a]; De La Cruz v Ock Wee Leong, 16 AD3d 199 [1" Dept 2005].) In a chain-reaction collision, responsibility presumptively rests with the rearmost driver. (De La Cruz v Ock Wee Leong, 16 AD3d 199 [1* Dept 2005]; Mustafaj v Driscoll and Lugo, 5 AD3d 138 [1* Dept 2004].) Here, according to plaintiff, the rear-most driver is defendant Barcia. According to Mr. Barcia, however, a fourth unidentified vehicle, was the rear-most driver. Conflicting testimony by the parities as to the liability of each driver is best left up to the trier of fact. (Odikpo v American Tr., Inc., 72AD3d 568 [1* Dept 2010].) Based on the foregoing, the Court finds that defendant Barcia’s deposition testimony creates a triable issue of fact. The Court accordingly reverses its 12/18/15 Order granting the plaintiff's motion for summary judgment. Service of a copy of this Decision and Order with Notice of Entry shall be effected within 30 days. Dated: June 28, 2016 So ordered, Hon. Lizbeth Gonzpilez, JSC 3 of 3