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INDEX NO. 602748/2012
NYSCEF DOC. NO. 100 RECEIVED NYSCEF: 06/11/2014
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
ALEJANDRA RAMIREZ, STANLEY SARAUW Index #602748/12
and YAZMEN F. COHILL,
Plaintiffs, MEMORANDUM OF LAW
- against -
YVONNA M. MCALLISTER, THE COUNTY OF
NASSAU INTER-COUNTY EXPRESS, VEOLIA
TRANSPORTATION SERVICE, INC., ELLIS
BELODOFF and DENISE RUSSO, HON. JUSTICE GALASSO
Defendants,
DEFENDANT, DENISE RUSSO, WAS
NOT NEGLIGENT AS A MATTER OF LAW AND
SUMMARY JUDGMENT SHOULD BE GRANTED.
The CPLR provides that a summary judgment "motion shall be
granted if, upon all the papers and proof submitted, the cause of
action or defense shall be established sufficiently to warrant the
court as a matter of law in directing judgment in favor of any
party" (CPLR 3212 [b]). A Court may grant summary judgment in a
proceeding when it has been established that no triable issue of
fact exists. Summary judgment is designed to expedite all civil
cases by eliminating from the trial calendar claims which can be
properly resolved as a matter of law (Andre v Pomeroy, 35 NY2d 361
{1974}).
THE DEFENDANT, DENISE RUSSO, DID NOT BREACH ANY
DUTY OWED TO THE PLAINTIFF BECAUSE HER VEHICLE WAS
SLOWING WHEN IT WAS STRUCK IN THE REAR.
It is well-established law in New York State, that there are
three elements which must be present for a plaintiff to recover
from a defendant in tort. These elements are: (1) the existence ofa legal duty from the defendant to the plaintiff; (2) a breach of
that duty; and (3) an injury which was proximately caused by the
breach of the duty (Brandy B. v Eden Cent. School Dist., 15 NY2d
297 [2010]; Akins v Glens Falls City School Dist., 53 NY2d 325
[1981]; Pulka v Edelman, 40 NY2d 781 [1976]). If one of these
elements is not present, there can be no recovery by the plaintiff
against the defendant (Stukas v Streiter, 83 AD3d 18 [2d Dept
2011]; Green v State, 222 AD2d 553, [2d Dept 1995]; Gaeta _v City,
213 AD2d 509 [2d Dept 1995]).
The scope of one party's duty owed to another is a question of law
to be determined by the Court (Espinal v Melville Snow Contractors,
Inc., 98 NY2d 136 [2002]; Palka v Servicemaster Mgt. Servs. Corp.,
83 NY2d 579 [1994]; Eaves Brooks Costume Co. v Y.B.H. Realty Corp.,
76 NY2d 220 [1990]).
While questions of proximate cause can be factual jury
questions, the Court of Appeals has held that the plaintiff must
establish prima facie that the alleged negligence was a substantial
cause of the events that resulted in his injuries (Derdiarian v
Felix Contracting Corp., 51 NY2d 308 [1980]).
Where the defendant's vehicle merely furnishes the occasion for
the accident, any negligence that could be attributed to the
defendant is not a proximate cause of the plaintiffs injuries (Ely
wv Pierce, 302 AD2d 489 [2d Dept 2003]).
Applying the law to the facts of this case, the defendant,
DENISE RUSSO, was not a proximate cause of the subject accident.The defendants, COUNTY OF NASSAU AND YVONNA M. MCALLISTER, failed
to provide a non-negligent explanation for striking the rear of
the RUSSO vehicle initiating a four car collision
accident.
DEFENDANT, DENISE RUSSO, DID NOT
BREACH ANY DUTY OWED TO THE PLAINTIFFS BECAUSE HER
VEHICLE WAS STOPPED WHEN IT WAS STRUCK IN THE REAR.
A rear-end collision with a stopped or stopping automobile
establishes a prima facie case of negligence on the part of the
operator of the moving vehicle and imposes a duty on the operator
of the moving vehicle to explain how the accident occurred (Ortiz
v_Fage USA Corp., 69 AD3d 914 [2d Dept 2010]; Abramov v Campbell,
303 AD2d 697 [2d Dept 2003]; Karakostas v Avis Rent A Car Systems,
301 AD2d 632 [2d Dept 2003]; Reed v New York City Tr. Auth., 299
AD2d 330 [2d Dept 2002]; Leal v Wolff, 224 AD2d 392 [2d Dept
1996]). The operator of the moving vehicle is required to rebut the
inference of negligence created by an unexplained rear-end
collision (Leal _v Wolff, 224 AD2d 392 [2d Dept 1996]). When the
operator of the moving vehicle cannot come forward with evidence to
rebut the inference of negligence, the moving party properly may be
awarded judgment as a matter of law (Id.).
Vehicle and Traffic Law § 1129 (a) provides:
"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."
Bare or sparse allegations as to a sudden stop do not create
an issue of fact and are insufficient to rebut the inference ofnegligence on the part of the operator of the vehicle traveling to
the rear of the stopped vehicle (Arias v Rosario, 52 AD3d 551 [2d
Dept 2008]; Rainford v Han, 18 AD3d 638 [2d Dept 2005]; Hurley v
Cavitolo, 239 AD2d 559 [2d Dept 1997]; Silberman v Surrey Cadillac
Limousine Serv., 109 AD2d 833.[2d Dept 1985]).
Courts have found that when "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 her car and the car ahead" (Shamah_ v
Richmond County Ambulance Service, 279 AD2d 564; see also Shulga v
Ashcroft, 11 AD3d 893 [4th Dept 2004]; Lifshits v Variety Poly
Bags, 278 AD2d 372 [2d Dept 2000]).
In Davis v Quinones (295 AD2d 394 [2d Dept 2002]), the
plaintiff, who rear-ended the defendant, brought a claim against
the defendant, asserting only that the defendant's vehicle "must
have cut in front of her immediately before the collision." The
Court found that this assertion was "insufficient to defeat the
motion for summary judgment" (citing Levine v Taylor, 268 AD2d 566;
Itingen .v Weinstein, 260 AD2d 440).
Applying the law to the facts of this case, defendants, COUNTY
OF NASSAU AND YVONNA M. MCALLISTER, failed to provide a
non-negligent explanation for causing the rear-end collision with
the RUSSO vehicle which initiated the four car chain accident.WHEREFORE, it is respectfully requested that this Court
dismiss plaintiff's complaint against defendant, DENISE RUSSO, and
for any other relief that this Court deems just and proper.
Dated: Mineola, New York
June 9, 2014
BRIAN F. CURRAN
L
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INDEX NO. 602748/2012 NYSCEF DOC. NO. 100 RECEIVED NYSCEF: 06/11/2014 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU ALEJANDRA RAMIREZ, STANLEY SARAUW Index #602748/12 and YAZMEN F. COHILL, Plaintiffs, MEMORANDUM OF LAW - against - YVONNA M. MCALLISTER, THE COUNTY OF NASSAU INTER-COUNTY EXPRESS, VEOLIA TRANSPORTATION SERVICE, INC., ELLIS BELODOFF and DENISE RUSSO, HON. JUSTICE GALASSO Defendants, DEFENDANT, DENISE RUSSO, WAS NOT NEGLIGENT AS A MATTER OF LAW AND SUMMARY JUDGMENT SHOULD BE GRANTED. The CPLR provides that a summary judgment "motion shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party" (CPLR 3212 [b]). A Court may grant summary judgment in a proceeding when it has been established that no triable issue of fact exists. Summary judgment is designed to expedite all civil cases by eliminating from the trial calendar claims which can be properly resolved as a matter of law (Andre v Pomeroy, 35 NY2d 361 {1974}). THE DEFENDANT, DENISE RUSSO, DID NOT BREACH ANY DUTY OWED TO THE PLAINTIFF BECAUSE HER VEHICLE WAS SLOWING WHEN IT WAS STRUCK IN THE REAR. It is well-established law in New York State, that there are three elements which must be present for a plaintiff to recover from a defendant in tort. These elements are: (1) the existence ofa legal duty from the defendant to the plaintiff; (2) a breach of that duty; and (3) an injury which was proximately caused by the breach of the duty (Brandy B. v Eden Cent. School Dist., 15 NY2d 297 [2010]; Akins v Glens Falls City School Dist., 53 NY2d 325 [1981]; Pulka v Edelman, 40 NY2d 781 [1976]). If one of these elements is not present, there can be no recovery by the plaintiff against the defendant (Stukas v Streiter, 83 AD3d 18 [2d Dept 2011]; Green v State, 222 AD2d 553, [2d Dept 1995]; Gaeta _v City, 213 AD2d 509 [2d Dept 1995]). The scope of one party's duty owed to another is a question of law to be determined by the Court (Espinal v Melville Snow Contractors, Inc., 98 NY2d 136 [2002]; Palka v Servicemaster Mgt. Servs. Corp., 83 NY2d 579 [1994]; Eaves Brooks Costume Co. v Y.B.H. Realty Corp., 76 NY2d 220 [1990]). While questions of proximate cause can be factual jury questions, the Court of Appeals has held that the plaintiff must establish prima facie that the alleged negligence was a substantial cause of the events that resulted in his injuries (Derdiarian v Felix Contracting Corp., 51 NY2d 308 [1980]). Where the defendant's vehicle merely furnishes the occasion for the accident, any negligence that could be attributed to the defendant is not a proximate cause of the plaintiffs injuries (Ely wv Pierce, 302 AD2d 489 [2d Dept 2003]). Applying the law to the facts of this case, the defendant, DENISE RUSSO, was not a proximate cause of the subject accident.The defendants, COUNTY OF NASSAU AND YVONNA M. MCALLISTER, failed to provide a non-negligent explanation for striking the rear of the RUSSO vehicle initiating a four car collision accident. DEFENDANT, DENISE RUSSO, DID NOT BREACH ANY DUTY OWED TO THE PLAINTIFFS BECAUSE HER VEHICLE WAS STOPPED WHEN IT WAS STRUCK IN THE REAR. A rear-end collision with a stopped or stopping automobile establishes a prima facie case of negligence on the part of the operator of the moving vehicle and imposes a duty on the operator of the moving vehicle to explain how the accident occurred (Ortiz v_Fage USA Corp., 69 AD3d 914 [2d Dept 2010]; Abramov v Campbell, 303 AD2d 697 [2d Dept 2003]; Karakostas v Avis Rent A Car Systems, 301 AD2d 632 [2d Dept 2003]; Reed v New York City Tr. Auth., 299 AD2d 330 [2d Dept 2002]; Leal v Wolff, 224 AD2d 392 [2d Dept 1996]). The operator of the moving vehicle is required to rebut the inference of negligence created by an unexplained rear-end collision (Leal _v Wolff, 224 AD2d 392 [2d Dept 1996]). When the operator of the moving vehicle cannot come forward with evidence to rebut the inference of negligence, the moving party properly may be awarded judgment as a matter of law (Id.). Vehicle and Traffic Law § 1129 (a) provides: "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." Bare or sparse allegations as to a sudden stop do not create an issue of fact and are insufficient to rebut the inference ofnegligence on the part of the operator of the vehicle traveling to the rear of the stopped vehicle (Arias v Rosario, 52 AD3d 551 [2d Dept 2008]; Rainford v Han, 18 AD3d 638 [2d Dept 2005]; Hurley v Cavitolo, 239 AD2d 559 [2d Dept 1997]; Silberman v Surrey Cadillac Limousine Serv., 109 AD2d 833.[2d Dept 1985]). Courts have found that when "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 her car and the car ahead" (Shamah_ v Richmond County Ambulance Service, 279 AD2d 564; see also Shulga v Ashcroft, 11 AD3d 893 [4th Dept 2004]; Lifshits v Variety Poly Bags, 278 AD2d 372 [2d Dept 2000]). In Davis v Quinones (295 AD2d 394 [2d Dept 2002]), the plaintiff, who rear-ended the defendant, brought a claim against the defendant, asserting only that the defendant's vehicle "must have cut in front of her immediately before the collision." The Court found that this assertion was "insufficient to defeat the motion for summary judgment" (citing Levine v Taylor, 268 AD2d 566; Itingen .v Weinstein, 260 AD2d 440). Applying the law to the facts of this case, defendants, COUNTY OF NASSAU AND YVONNA M. MCALLISTER, failed to provide a non-negligent explanation for causing the rear-end collision with the RUSSO vehicle which initiated the four car chain accident.WHEREFORE, it is respectfully requested that this Court dismiss plaintiff's complaint against defendant, DENISE RUSSO, and for any other relief that this Court deems just and proper. Dated: Mineola, New York June 9, 2014 BRIAN F. CURRAN L