Preview
(FILED: NASSAU COUNTY CLERK 06/27/2014)
NYSCEF DOC. NO. 119
INDEX NO. 602748/2012
RECEIVED NYSCEF: 06/27/2014
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU
wanntnee tence nntnnntncnneennenenneuennennennnneneennnnetenene xX
ALEJANDRA RAMIREZ, STANLEY SARAUW AND
YAZMEN F. COHILL,
Plaintiffs,
-against-
YVONNA MCALLISTER, THE COUNTY OF NASSAU,
NASSAU INTER-COUNTY EXPRESS, VEOLIA
TRANSPORTATION SERVICES, INC., ELLIS BELODOFF
and DENISE RUSSO,
Defendants.
Index No.: 602748/2012
F LAW
IN SUPPORT OF MOTION FOR
SUMMARY JUDGMENT
SANDERS, SANDERS, BLOCK, WOYCIK,
VIENER & GROSSMAN, P. C.
Attorneys for Plaintiff
JAMES R. BAEZ, ESQ.TABLE OF CONTENTSTABLE OF AUTHORITIES
Cases
Abramowicz v. Roberto, 220 A.D.2d 374, 631 N.Y.S.2d 442 (2d Dept. 1995)
Andre v. Pomeroy, 35 N.Y.2d 361, 362 N.Y.S.2d 131 (1974)
Axelrod v. Armstead, 36 A.D.2d 593, 318 N.Y.S.2d 407 (1st Dept. 1971)
Behar v. Ordover, 92 A.D.2d 557, 459 N.Y.S.2d 304 (2d Dept. 1983)
Blake v. Gardino, 35 A.D.2d 1022, 315 N.Y.S.2d 973 (3d Dept. 1970)
Burton v. Ertel, 107 A.D.2d 909, 483 N.Y.S.2d 854 (3d Dept. 1985)
Diller v. City of New York Police Department, 269 A.D.2d 143, 701
N.Y.S.2d 432 (1st Dept. 2000)
Johnson v. Phillips, 261 A.D.2d 269, 690 N.Y.S.2d 545 (Ist Dept. 1999)
Leal v. Wolff, 224 A.D.2d 392, 638 N.Y.S.2d 110 (2d Dept. 1996)
Mitchell v. Gonzalez, 269 A.D.2d 250, 703 N.Y.S.2d 124 (1st Dept. 2000)
Morowitz v. Naughton, 150 A.D.2d 536, 541 N.Y.S.2d 122 (2d Dept. 1989)
O'Callaghan v. Flitter, 112 A.D.2d 1030, 493 N.Y.S.2d 28 (2d Dept. 1985)
Starace v. Inner Circle Qonexions, 198 A.D.2d 493, 604 N.Y.S.2d 179
(2d Dept. 1993)
Ugarizza v. Schneider, 46 N.Y.2d 471, 414 N.Y.S.2d 304 (1979)
Young v. City of New York, 113 A.D.2d 833, 493 N.Y.S.2d 585 (2d Dept. 1985)
Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595 (1980)
Statutes
New York Vehicle and Traffic Law, Section 1 129(a)
5,6,7
3,4PRELIMINARY STATEMENT
This Memorandum of Law is respectfully submitted in support of the instant Notice of
Cross-Motion dated June 18, 2014, which seeks an Order granting Summary Judgment in favor
of the plaintiff pursuant to CPLR § 3212 (b) and (c) on the issue of liability. This is an action to
recover money damages for serious and permanent injuries sustained by the plaintiff in an
automobile accident on June 12, 2012.STATEMENT OF FACTS
On June 12, 2012 at approximately 3:48 p.m., plaintiff, STANLEY SARAUW, was
operating a 2006 Lincoln bearing New York State license plate number US81, at Glen Cove
Road a/k/a Route 904, approximately 200 feet from its intersection with McCouns Lane in the
Village of Old Brookville, County of Nassau, State of New York. At that time, his motor vehicle
was violently struck in the rear by a 2007 Saab bearing New York State license plate number
FYY 2535, owned by defendant, DENISE F. RUSSO and operated by defendant, ELLIS S.
BELDOFF. Defendants, ELLIS S. BELDOFF and DENISE F. RUSSO’s vehicle was struck in
the rear by a 2000 Orio bus bearing New York license plate number R13982, owned by
Defendant, COUNTY OF NASSAU and operated by its employee Defendant, YVONNA M.
MCALLISTER, causing it to be pushed forward and strike plaintiff's vehicle in the rear. Plaintiff
was rear ended by defendants’ vehicle causing it to be pushed forward and strike another vehicle,
hit the guard rail and came to a stop facing the guard rail forming a chain collision. This resulted
in plaintiff sustaining severe and permanent injuries from which he has not fully recovered to this
day.
As a result of this collision, plaintiff, STANLEY SARAUW, sustained severe and
permanent injuries, from which he has not fully recovered to this day. These injuries include, but
are not limited to:
* BULGING DISC AT THE C3-4 LEVEL IMPINGING UPON THE ANTERIOR
SPINAL CANAL;
¢ BULGING DISC AT THE C6-7 LEVEL IMPINGING UPON THE ANTERIOR
SPINAL CANAL;
¢ SUPRAPATELLAR EFFUSION OF THE RIGHT KNEE;SUPRAPATELLAR EFFUSION AND SUBCUTANEOUS SWELLING AND
EDEMA IN THE RIGHT KNEE;
LEFT CLAVICLE FRACTURE AND FRACTURED LEFT SCAPULA
REQUIRING SURGERY TO REPAIR WHICH WAS PERFORMED ON JULY
29, 2012 AND CONSISTED OF OPEN REDUCTION AND INTERNAL
FIXATION;
LUMBAR RADICULOPATHY;
BULGING DISC AT L4-5 AND L5-S1 LEVELS; AND;
AGGRAVATION, ACTIVATION & EXACERBATION OF A PREVIOUSLY
QUIESCENT INJURY TO THE LUMBAR SPINE AT THE L4-5 AND L5-S1
LEVELS.ARGUMENT
The plaintiff is entitled to Summary Judgment on the issue of liability as a matter of law.
The absence of an adequate non-negligence excuse, without evidence of fault on the part of the
plaintiff constitutes negligence as a matter of law. Therefore, plaintiff is entitled to Summary
Judgment on the issue of liability,
In considering a motion for Summary Judgment, this Court must ascertain whether there
are any triable issues of fact in the proof presented by the parties or affidavits based on personal
knowledge and documentary evidence. See Behar v. Ordover, 92 A.D.2d 557, 459 N.Y.S.2d 304
(2d Dept. 1983).
The party opposing a motion for Summary Judgment must produce evidentiary proof in
admissible form sufficient to require a trial of material questions of fact on which he bases his
claim. See Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595 (1980).
It is well established that the party moving for Summary Judgment has the burden of
setting forth facts sufficient to entitle that party to a Judgment as a matter of law, whereupon the
burden is shifted to the opposing party to show proof that triable issues of fact exist. See Burton
v. Ertel, 107 A.D.2d 909, 483 N.Y.S.2d 854 (3d Dept. 1985).
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. When there is no genuine
issue of a material fact to be resolved at trial, the case should be summarily decided. See Andre_
v. Pomeroy, 35 N.Y.2d 361, 362 N.Y.S.2d 131 (1974).
Although negligence actions are not normally the subject of Summary Judgment
dismissal motions, the circumstances of this case would lead this Court to the conclusion thatSummary Judgment is appropriate. Summary Judgment is proper to eliminate unnecessary
expense to litigants when no issue of material facts is present to justify a trial. See Axelrod v.
Ammstead, 36 A.D.2d 593, 318 N.Y.S.2d 407 (1st Dept. 1971). /
Further, the Second Department has held that “{aJlthough negligence cases do not
generally lend themselves to resolution by a Motion for Summary Judgment, the court will grant
such a motion where . . . the facts clearly point to the negligence of one party without any fault or
culpable conduct by the other party.” Morowitz v. Naughton, 150 A.D.2d 536, 541 N.Y.S.2d 122
(2d Dept. 1989). Furthermore, if omitted facts are such that no conclusion other than negligence
can be drawn, Summary Judgment is not precluded in a negligence action. Ugarizza v. Schnieder,
46 N.Y.2d 471, 414 N.Y.S.2d 304 (1979).
The Court of Appeals has held that in a negligence suit, the plaintiff is entitled to
Summary Judgment when "there is no conflict at all in the evidence that the defendant's conduct
fell far below the permissible standard of due care, and the plaintiff's conduct . . . was not really
involved". Andre, supra, 35 N.Y.2d at 364, 362 N.Y.S.2d at 134.
Moreover, the absence of an adequate non-negligent explanation constitutes negligence as
a matter of law, thus entitling plaintiff to Summary Judgment on the issue of liability. See
O'Callaghan y. Flitter, 112 A.D.2d 1030, 493 N.Y.S.2d 28 (2d Dept. 1985).
It is undisputed that the instant action involves the defendants’ vehicle striking the rear of
plaintiff's vehicle, thus shifting the burden to defendants to set forth a non-negligent explanation
for the accident. Furthermore, affirmative proof must be offered to raise an issue as to either the
propriety of the manner by which the lead vehicle stopped, or a non-negligent explanation for thefailure of the defendants’ vehicle to avoid colliding with the plaintiff's vehicle. See Leal v.
Wolff, 224 A.D.2d 392, 638 N.Y.S.2d 110 (2d Dept. 1996).
If the operator of a motor vehicle cannot come forward with any evidence to rebut the
inference of negligence, the plaintiff may properly be awarded Judgment as a matter of law. See
Starace v. Inner Circle Qonexions, supra; Young v. City of New York, 113 A.D.2d 833, 834, 493
N.Y.S.2d 585 (2d Dept. 1985).
In Mitchell v. Gonzalez, the First Department recently held that a rear-end collision with
a vehicle “creates a prima facie case of negligence, requiring judgment for plaintiff unless
defendant[s] can proffer a non-negligent explanation for [their] failure to maintain a safe distance
between the cars.” See 269 A.D.2d 250, 251, 703 N.Y.S.2d 124, 125, 2000 N.Y. App. LEXIS
App. Div. LEXIS 1546 (1st Dept. 2000) (citing Asante v. Williams, 227 A.D.2d 123, 641
N.Y.S.2d 317 (1st Dept. 1996); Abramowicz v. Roberto, 220 A.D.2d 374, 375, 631 N.Y.S.2d
442 (2d Dept. 1995)).
Further, the Mitchell Court continued by holding that “i]t is not a sufficient defense to
claim that [the other] vehicle stopped short.” Id. (citing Danza v. Longieliere, 256 A.D.2d 434,
435, 681 N.Y.S.2d 603 (2d Dept. 1998), appeal dismissed 93 N.Y.2d 957, 694 N.Y.S.2d 634,
716 N.E.2d 699 (1999).
In regard to non-negligent excuses, the Mitchell Court held that a wet roadway is not a
“sufficient defense to rebut the presumption of negligence.” Id. (Citing Crociata v. Vasquez,
168 A.D.2d 410, 411, 562 N.Y.S.2d 536 (2d Dept. 1990)). The Court expounded on that issue
finding that “[a] driver is expected to drive at a sufficiently safe speed and to maintain enough
distance between himself and cars ahead of him so as to avoid collisions with stopped vehicles,taking into account the weather and road conditions.” Id. (citing Rodriquez v. City of New York,
259 A.D.2d 280, 686 N.Y.S.2d 394 (1st Dept. 1999)), Even if the rear-end collision occurred on
a wet and foggy night, a rear driver’s failure to maintain a safe speed and distance from the car in
front constitutes negligence as a matter of law. Id.
Another First Department decision cited the Vehicle and Traffic Law in granting plaintiff
Summary Judgment in a rear collision accident. See Johnson v. Phillips, 261 A.D.2d 269, 690
N.Y.S.2d 545, 1999 N.Y. App. Div. LEXIS 5477 (1st Dept. 1999). In Philips, the Court stated
that “[d]rivers must maintain safe distances between their cars and the cars in front of them. Id. at
271, 547 (Citing Section 1129(a) of the Vehicle and Traffic Law). That Court noted that Section
1129(a) of the Vehicle and Traffic Law also imposes on drivers a duty to be aware of traffic
conditions, including vehicle stoppages. 1d. Thus, “drivers have a ‘duty to see what should be
seen and to exercise reasonable care under the circumstances to avoid an accident.” Id, (quoting
DeAngelis v, Kirschner, 171 A.D.2d 593, 595, 567 N.Y.S.2d 457, 458 (1st Dept 1991)).
In Diller v. City of New York Police Department, the First Department found that
defendants are responsible for perceiving the traffic and weather conditions. See 269 A.D.2d 143,
144, 701 N.Y.S.2d 432, 433, 2000 N.Y. App. Div, LEXIS 989. “As it can be easily anticipated
that cars up ahead will make frequent stops in rush hour traffic, ‘defendant driver’s failure to
anticipate and react to the slow and cautious movement of [the lead] vehicle’ is not an adequate,
non-negligent explanation for the accident. Id, (quoting Galante v. BMW Financial Services
North America, 223 A.D.2d 421, 636 N.Y.S.2d 58 (Ist Dept. 1996)). Thus, any explanation
regarding weather and traffic conditions will not excuse defendant-operator’s striking of the lead
vehicle in the rear. Moreover, the First Department has granted Summary Judgment for plaintiffin a number of different rear end collision situations. That department has found that plaintiff
was entitled to Summary Judgment when “‘the front vehicle stops suddenly in slow moving
traffic.” Phillips, 261 A.D.2d at 271, 690 N.Y.S.2d at 547 (citing Mascitti v. Greene, 250 A.D.2d
821, 671 N.Y.S.2d 206 (2d Dept. 1998)), Additionally, Summary Judgment was granted when
the front vehicle was in stop-and-go traffic and while crossing an intersection. Id. (citing Barba_
v. Best Sec. Corp., 235 A.D.2d 381, 652 N.Y.8.2d 71 (2d Dept. 1997)). Summary Judgment was
granted even when the front vehicle had recently changed lanes in a roadway and.defendant
struck that vehicle in the rear. Id, (citing Cohen y. Terranella, 112 A.D.2d 264, 491 N.Y.S.2d
711 (2d Dept. 1985)),
In addition to the plaintiff's sworn affidavit, the police report in this case clearly shows
that defendants’ vehicle struck the plaintiff's vehicle in a chain collision. (A copy of the police
report is attached as Exhibit “D”). As such, Summary Judgment should be granted in favor of the
plaintiff.
In the case at bar, defendants, YVONNA MCALLISTER, THE COUNTY OF NASSAU,
NASSAU INTER-COUNTY EXPRESS and VEOLIA TRANSPORTATION SERVICES, INC.,
failed to establish any open issues contradicting the facts presented within plaintiff's counsel’s
Affirmation. The defendants also failed to present any competent, non-negligent explanation of
the cause of the subject accident. The following evidence noted in the annexed exhibits
demonstrates that no issues of fact remain open: plaintiff is not violating any provisions of the
New York State Vehicle and Traffic Law; defendants struck plaintiff's vehicle, in the rear
causing plaintiff, STANLEY SARAUW, to sustain serious and permanent personal injuries; anddefendants failed to operate their motor vehicles with the proper exercise of due care which is
required by law.
In the instant action, it is respectfully submitted that the defendants have failed to set
forth any defenses that could have contributed to this accident other than their own fault. As the
defendants do not offer any plausible defenses, nor are there any issues of material facts to be
tried, the plaintiff's motion for Summary Judgment should be granted.
CONCLUSION
Based upon the foregoing facts of this case, this motion for Summary Judgment should be
granted in its entirety, and this matter should be set down for a trial for an assessment of damages
before a jury, together with such other, further, and different relief as this Court may deem just
and proper.
Dated: Mineola, New York
June 18, 2014
oot R. to
Preview
(FILED: NASSAU COUNTY CLERK 06/27/2014) NYSCEF DOC. NO. 119 INDEX NO. 602748/2012 RECEIVED NYSCEF: 06/27/2014 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU wanntnee tence nntnnntncnneennenenneuennennennnneneennnnetenene xX ALEJANDRA RAMIREZ, STANLEY SARAUW AND YAZMEN F. COHILL, Plaintiffs, -against- YVONNA MCALLISTER, THE COUNTY OF NASSAU, NASSAU INTER-COUNTY EXPRESS, VEOLIA TRANSPORTATION SERVICES, INC., ELLIS BELODOFF and DENISE RUSSO, Defendants. Index No.: 602748/2012 F LAW IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT SANDERS, SANDERS, BLOCK, WOYCIK, VIENER & GROSSMAN, P. C. Attorneys for Plaintiff JAMES R. BAEZ, ESQ.TABLE OF CONTENTSTABLE OF AUTHORITIES Cases Abramowicz v. Roberto, 220 A.D.2d 374, 631 N.Y.S.2d 442 (2d Dept. 1995) Andre v. Pomeroy, 35 N.Y.2d 361, 362 N.Y.S.2d 131 (1974) Axelrod v. Armstead, 36 A.D.2d 593, 318 N.Y.S.2d 407 (1st Dept. 1971) Behar v. Ordover, 92 A.D.2d 557, 459 N.Y.S.2d 304 (2d Dept. 1983) Blake v. Gardino, 35 A.D.2d 1022, 315 N.Y.S.2d 973 (3d Dept. 1970) Burton v. Ertel, 107 A.D.2d 909, 483 N.Y.S.2d 854 (3d Dept. 1985) Diller v. City of New York Police Department, 269 A.D.2d 143, 701 N.Y.S.2d 432 (1st Dept. 2000) Johnson v. Phillips, 261 A.D.2d 269, 690 N.Y.S.2d 545 (Ist Dept. 1999) Leal v. Wolff, 224 A.D.2d 392, 638 N.Y.S.2d 110 (2d Dept. 1996) Mitchell v. Gonzalez, 269 A.D.2d 250, 703 N.Y.S.2d 124 (1st Dept. 2000) Morowitz v. Naughton, 150 A.D.2d 536, 541 N.Y.S.2d 122 (2d Dept. 1989) O'Callaghan v. Flitter, 112 A.D.2d 1030, 493 N.Y.S.2d 28 (2d Dept. 1985) Starace v. Inner Circle Qonexions, 198 A.D.2d 493, 604 N.Y.S.2d 179 (2d Dept. 1993) Ugarizza v. Schneider, 46 N.Y.2d 471, 414 N.Y.S.2d 304 (1979) Young v. City of New York, 113 A.D.2d 833, 493 N.Y.S.2d 585 (2d Dept. 1985) Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595 (1980) Statutes New York Vehicle and Traffic Law, Section 1 129(a) 5,6,7 3,4PRELIMINARY STATEMENT This Memorandum of Law is respectfully submitted in support of the instant Notice of Cross-Motion dated June 18, 2014, which seeks an Order granting Summary Judgment in favor of the plaintiff pursuant to CPLR § 3212 (b) and (c) on the issue of liability. This is an action to recover money damages for serious and permanent injuries sustained by the plaintiff in an automobile accident on June 12, 2012.STATEMENT OF FACTS On June 12, 2012 at approximately 3:48 p.m., plaintiff, STANLEY SARAUW, was operating a 2006 Lincoln bearing New York State license plate number US81, at Glen Cove Road a/k/a Route 904, approximately 200 feet from its intersection with McCouns Lane in the Village of Old Brookville, County of Nassau, State of New York. At that time, his motor vehicle was violently struck in the rear by a 2007 Saab bearing New York State license plate number FYY 2535, owned by defendant, DENISE F. RUSSO and operated by defendant, ELLIS S. BELDOFF. Defendants, ELLIS S. BELDOFF and DENISE F. RUSSO’s vehicle was struck in the rear by a 2000 Orio bus bearing New York license plate number R13982, owned by Defendant, COUNTY OF NASSAU and operated by its employee Defendant, YVONNA M. MCALLISTER, causing it to be pushed forward and strike plaintiff's vehicle in the rear. Plaintiff was rear ended by defendants’ vehicle causing it to be pushed forward and strike another vehicle, hit the guard rail and came to a stop facing the guard rail forming a chain collision. This resulted in plaintiff sustaining severe and permanent injuries from which he has not fully recovered to this day. As a result of this collision, plaintiff, STANLEY SARAUW, sustained severe and permanent injuries, from which he has not fully recovered to this day. These injuries include, but are not limited to: * BULGING DISC AT THE C3-4 LEVEL IMPINGING UPON THE ANTERIOR SPINAL CANAL; ¢ BULGING DISC AT THE C6-7 LEVEL IMPINGING UPON THE ANTERIOR SPINAL CANAL; ¢ SUPRAPATELLAR EFFUSION OF THE RIGHT KNEE;SUPRAPATELLAR EFFUSION AND SUBCUTANEOUS SWELLING AND EDEMA IN THE RIGHT KNEE; LEFT CLAVICLE FRACTURE AND FRACTURED LEFT SCAPULA REQUIRING SURGERY TO REPAIR WHICH WAS PERFORMED ON JULY 29, 2012 AND CONSISTED OF OPEN REDUCTION AND INTERNAL FIXATION; LUMBAR RADICULOPATHY; BULGING DISC AT L4-5 AND L5-S1 LEVELS; AND; AGGRAVATION, ACTIVATION & EXACERBATION OF A PREVIOUSLY QUIESCENT INJURY TO THE LUMBAR SPINE AT THE L4-5 AND L5-S1 LEVELS.ARGUMENT The plaintiff is entitled to Summary Judgment on the issue of liability as a matter of law. The absence of an adequate non-negligence excuse, without evidence of fault on the part of the plaintiff constitutes negligence as a matter of law. Therefore, plaintiff is entitled to Summary Judgment on the issue of liability, In considering a motion for Summary Judgment, this Court must ascertain whether there are any triable issues of fact in the proof presented by the parties or affidavits based on personal knowledge and documentary evidence. See Behar v. Ordover, 92 A.D.2d 557, 459 N.Y.S.2d 304 (2d Dept. 1983). The party opposing a motion for Summary Judgment must produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact on which he bases his claim. See Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595 (1980). It is well established that the party moving for Summary Judgment has the burden of setting forth facts sufficient to entitle that party to a Judgment as a matter of law, whereupon the burden is shifted to the opposing party to show proof that triable issues of fact exist. See Burton v. Ertel, 107 A.D.2d 909, 483 N.Y.S.2d 854 (3d Dept. 1985). 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. When there is no genuine issue of a material fact to be resolved at trial, the case should be summarily decided. See Andre_ v. Pomeroy, 35 N.Y.2d 361, 362 N.Y.S.2d 131 (1974). Although negligence actions are not normally the subject of Summary Judgment dismissal motions, the circumstances of this case would lead this Court to the conclusion thatSummary Judgment is appropriate. Summary Judgment is proper to eliminate unnecessary expense to litigants when no issue of material facts is present to justify a trial. See Axelrod v. Ammstead, 36 A.D.2d 593, 318 N.Y.S.2d 407 (1st Dept. 1971). / Further, the Second Department has held that “{aJlthough negligence cases do not generally lend themselves to resolution by a Motion for Summary Judgment, the court will grant such a motion where . . . the facts clearly point to the negligence of one party without any fault or culpable conduct by the other party.” Morowitz v. Naughton, 150 A.D.2d 536, 541 N.Y.S.2d 122 (2d Dept. 1989). Furthermore, if omitted facts are such that no conclusion other than negligence can be drawn, Summary Judgment is not precluded in a negligence action. Ugarizza v. Schnieder, 46 N.Y.2d 471, 414 N.Y.S.2d 304 (1979). The Court of Appeals has held that in a negligence suit, the plaintiff is entitled to Summary Judgment when "there is no conflict at all in the evidence that the defendant's conduct fell far below the permissible standard of due care, and the plaintiff's conduct . . . was not really involved". Andre, supra, 35 N.Y.2d at 364, 362 N.Y.S.2d at 134. Moreover, the absence of an adequate non-negligent explanation constitutes negligence as a matter of law, thus entitling plaintiff to Summary Judgment on the issue of liability. See O'Callaghan y. Flitter, 112 A.D.2d 1030, 493 N.Y.S.2d 28 (2d Dept. 1985). It is undisputed that the instant action involves the defendants’ vehicle striking the rear of plaintiff's vehicle, thus shifting the burden to defendants to set forth a non-negligent explanation for the accident. Furthermore, affirmative proof must be offered to raise an issue as to either the propriety of the manner by which the lead vehicle stopped, or a non-negligent explanation for thefailure of the defendants’ vehicle to avoid colliding with the plaintiff's vehicle. See Leal v. Wolff, 224 A.D.2d 392, 638 N.Y.S.2d 110 (2d Dept. 1996). If the operator of a motor vehicle cannot come forward with any evidence to rebut the inference of negligence, the plaintiff may properly be awarded Judgment as a matter of law. See Starace v. Inner Circle Qonexions, supra; Young v. City of New York, 113 A.D.2d 833, 834, 493 N.Y.S.2d 585 (2d Dept. 1985). In Mitchell v. Gonzalez, the First Department recently held that a rear-end collision with a vehicle “creates a prima facie case of negligence, requiring judgment for plaintiff unless defendant[s] can proffer a non-negligent explanation for [their] failure to maintain a safe distance between the cars.” See 269 A.D.2d 250, 251, 703 N.Y.S.2d 124, 125, 2000 N.Y. App. LEXIS App. Div. LEXIS 1546 (1st Dept. 2000) (citing Asante v. Williams, 227 A.D.2d 123, 641 N.Y.S.2d 317 (1st Dept. 1996); Abramowicz v. Roberto, 220 A.D.2d 374, 375, 631 N.Y.S.2d 442 (2d Dept. 1995)). Further, the Mitchell Court continued by holding that “i]t is not a sufficient defense to claim that [the other] vehicle stopped short.” Id. (citing Danza v. Longieliere, 256 A.D.2d 434, 435, 681 N.Y.S.2d 603 (2d Dept. 1998), appeal dismissed 93 N.Y.2d 957, 694 N.Y.S.2d 634, 716 N.E.2d 699 (1999). In regard to non-negligent excuses, the Mitchell Court held that a wet roadway is not a “sufficient defense to rebut the presumption of negligence.” Id. (Citing Crociata v. Vasquez, 168 A.D.2d 410, 411, 562 N.Y.S.2d 536 (2d Dept. 1990)). The Court expounded on that issue finding that “[a] driver is expected to drive at a sufficiently safe speed and to maintain enough distance between himself and cars ahead of him so as to avoid collisions with stopped vehicles,taking into account the weather and road conditions.” Id. (citing Rodriquez v. City of New York, 259 A.D.2d 280, 686 N.Y.S.2d 394 (1st Dept. 1999)), Even if the rear-end collision occurred on a wet and foggy night, a rear driver’s failure to maintain a safe speed and distance from the car in front constitutes negligence as a matter of law. Id. Another First Department decision cited the Vehicle and Traffic Law in granting plaintiff Summary Judgment in a rear collision accident. See Johnson v. Phillips, 261 A.D.2d 269, 690 N.Y.S.2d 545, 1999 N.Y. App. Div. LEXIS 5477 (1st Dept. 1999). In Philips, the Court stated that “[d]rivers must maintain safe distances between their cars and the cars in front of them. Id. at 271, 547 (Citing Section 1129(a) of the Vehicle and Traffic Law). That Court noted that Section 1129(a) of the Vehicle and Traffic Law also imposes on drivers a duty to be aware of traffic conditions, including vehicle stoppages. 1d. Thus, “drivers have a ‘duty to see what should be seen and to exercise reasonable care under the circumstances to avoid an accident.” Id, (quoting DeAngelis v, Kirschner, 171 A.D.2d 593, 595, 567 N.Y.S.2d 457, 458 (1st Dept 1991)). In Diller v. City of New York Police Department, the First Department found that defendants are responsible for perceiving the traffic and weather conditions. See 269 A.D.2d 143, 144, 701 N.Y.S.2d 432, 433, 2000 N.Y. App. Div, LEXIS 989. “As it can be easily anticipated that cars up ahead will make frequent stops in rush hour traffic, ‘defendant driver’s failure to anticipate and react to the slow and cautious movement of [the lead] vehicle’ is not an adequate, non-negligent explanation for the accident. Id, (quoting Galante v. BMW Financial Services North America, 223 A.D.2d 421, 636 N.Y.S.2d 58 (Ist Dept. 1996)). Thus, any explanation regarding weather and traffic conditions will not excuse defendant-operator’s striking of the lead vehicle in the rear. Moreover, the First Department has granted Summary Judgment for plaintiffin a number of different rear end collision situations. That department has found that plaintiff was entitled to Summary Judgment when “‘the front vehicle stops suddenly in slow moving traffic.” Phillips, 261 A.D.2d at 271, 690 N.Y.S.2d at 547 (citing Mascitti v. Greene, 250 A.D.2d 821, 671 N.Y.S.2d 206 (2d Dept. 1998)), Additionally, Summary Judgment was granted when the front vehicle was in stop-and-go traffic and while crossing an intersection. Id. (citing Barba_ v. Best Sec. Corp., 235 A.D.2d 381, 652 N.Y.8.2d 71 (2d Dept. 1997)). Summary Judgment was granted even when the front vehicle had recently changed lanes in a roadway and.defendant struck that vehicle in the rear. Id, (citing Cohen y. Terranella, 112 A.D.2d 264, 491 N.Y.S.2d 711 (2d Dept. 1985)), In addition to the plaintiff's sworn affidavit, the police report in this case clearly shows that defendants’ vehicle struck the plaintiff's vehicle in a chain collision. (A copy of the police report is attached as Exhibit “D”). As such, Summary Judgment should be granted in favor of the plaintiff. In the case at bar, defendants, YVONNA MCALLISTER, THE COUNTY OF NASSAU, NASSAU INTER-COUNTY EXPRESS and VEOLIA TRANSPORTATION SERVICES, INC., failed to establish any open issues contradicting the facts presented within plaintiff's counsel’s Affirmation. The defendants also failed to present any competent, non-negligent explanation of the cause of the subject accident. The following evidence noted in the annexed exhibits demonstrates that no issues of fact remain open: plaintiff is not violating any provisions of the New York State Vehicle and Traffic Law; defendants struck plaintiff's vehicle, in the rear causing plaintiff, STANLEY SARAUW, to sustain serious and permanent personal injuries; anddefendants failed to operate their motor vehicles with the proper exercise of due care which is required by law. In the instant action, it is respectfully submitted that the defendants have failed to set forth any defenses that could have contributed to this accident other than their own fault. As the defendants do not offer any plausible defenses, nor are there any issues of material facts to be tried, the plaintiff's motion for Summary Judgment should be granted. CONCLUSION Based upon the foregoing facts of this case, this motion for Summary Judgment should be granted in its entirety, and this matter should be set down for a trial for an assessment of damages before a jury, together with such other, further, and different relief as this Court may deem just and proper. Dated: Mineola, New York June 18, 2014 oot R. to