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SUPREME COURT OF THE STATE OF NEW YORK Index No: 616874/2019
COUNTY OF NASSAU
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GIUSEPPINA IANNIELLO
Plaintiff,
-against-
BARBARA A. DOBBINS and TAYLOR C. DOBBINS,
Defendants.
------------------------- X
PLAINTIFF'S MEMORANDUM OF LAW
IN SUPPORT OF MOTION FOR
SUMMARY JUDGMENT
------- . .. ------ .--- ------------
SANDERS, SANDERS, BLOCK, WOYCIK,
VIENER & GROSSMAN, P. C.
Attorneys for Plaintiff
OF COUNSEL: IHOR STRATAN
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TABLEOF CONTENTS
Page
TableofAuthorities...................................... ii
Preliminary Statement.................................... 1
StatementofFacts....................................... 2
Argument.............................................. 3-8
Conclusion............................................. 8
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TABLE OF AUTHORITIES
Cases
Abramowicz v. Roberto. 220 A.D.2d 374, 631 N.Y.S.2d 442 (2d Dept. 1995)
Andre v. Pomerov, 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 1922, 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 (1st Dept. 1999)
Leal v. Wolff, 224 A.D.2d 392, 638 N.Y.S.2d 110 (2d Dept. 1996)
Mitchell v. Ga= , 269 A.D.2d 250, 703 N.Y.S.2d 124 (1st Dept. 2000)
Morowitz v. Nau hton, 150 A.D.2d 536, 541 N.Y.S.2d 122 (2d Dept. 1989)
O'Callaghan v. Flitter, 112 A.D.2d 1930, 493 N.Y.S.2d 28 (2d Dept. 1985)
Starace v. Inner Circle Oonexions, 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 1129(a)
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PRELIMINARY S_TATEMENT
This Memorandum of Law is respectfully submitted in support of the instant Notice of
Motion dated July 9, 2020, 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 September 5, 2019.
STATEMENT OF FACTS
On September 5, 2019, at approximately 9:55 a.m., plaintiff, GIUSEPPINA IANNIELLO,
was lawfully operating a 2008 Mercedes Benz with New York State license plate number
GLX6123 owned by non-party Filomena M Ianniello, on Earle Ovington Boulevard, Hempstead,
County of Nassau, State of New York. At that time, plaintiff's motor vehicle was completely
stopped for a red light when it was violently struck in the rear by a 2010 MINI Cooper bearing
New York State license plate number HZY3416. Plaintiff felt one impact to the rear of her car and
her body moved as a result of the impact: her upper body jerked forward and backward and her
head hit the headboard of the seat. The offending vehicle was owned by defendant BARBARA A
DOBBINS and operated by defendant TAYLOR C. DOBBINS.
As a result of this collision, plaintiff, GIUSEPPINA IANNIELLO, sustained severe and
permanent injuries, from which he has not fully recovered to this day. These injuries include, but
are not limited to, the following:
CERVICAL SPINE
C2-3 DISC BULGE (CONFIRMED BY MRI OF OCTOBER 21, 2019)
C3-4 RIGHT SIDED HERNIATION WITH RIGHT-SIDED CORD
FLATTENING (CONFIRMED BY MRI OF OCTOBER 21, 2019)
C4-5 RIGHT POSTEROLATERAL HERNIATION RESULTING IN
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RIGHT CORD FLATTENING AND RIGHT FORAMINAL STENOSIS
(CONFIRMED BY THE MRI OF OCTOBER 21, 2019)
C5-6 RIGHT PARACENTRAL HERNIATION WITH ANNULAR TEAR
RESULTING IN CORD IMPINGEMENT (CONFIRMED BY THE MRI OF
OCTOBER 21, 2019)
C6-7 POSTEROLATERAL HERNIATION RESULTING IN
EFFACEMENT OF THECAL SAC AND RIGHT FORAMINAL STENOSIS
(CONFIRMED BY THE MRI OF OCTOBER 21, 2019)
LEFT SIDED C6 RADICULOPATHY (CONFIRMED BY THE EMG OF
OCTOBER 16, 2019)
THORASIC SPINE
T1-2 CENTRAL HERNIATION WITH ANNULAR TEAR WITH MASS
EFFECT ON THE VENTRAL SAC (CONFIRMED BY MRI OF OCTOBER
21, 2019)
T7-8 FOCAL CENTRAL DISC HERNIATION WITH SUPERIOR
EXTRUSION BY 2MM WITH SPINAL STENOSIS (CONFIRMED BY THE
MRI OF NOVEMBER 08, 2019)
LUMBAR SPINE
L2-3 DISC BULGE (CONFIRMED BY THE MRI OF OCTOBER 21, 2019)
L3-4 BULGING DISC WITH FLATTENING OF THE THECAL SAC
(CONFIRMED BY THE MRI OF OCTOBER 21, 2019)
L4-5 BULGING DISC WITH FLATTENING OF THE THECAL SAC
(CONFIRMED BY THE MRI OF OCTOBER 21, 2019)
L5-S1 DISC BULGE (CONFIRMED BY THE MRI OF OCTOBER 21, 2019)
LEFT SIDED L4 RADICULOPATHY (CONFIRMED BY THE EMG OF
OCTOBER 22, 2019).
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
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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 she bases her
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. h 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. h 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 that Summary
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. Armstead, 36
A.D.2d 593, 318 N.Y.S.2d 407 (1st Dept. 1971).
Further, the Second Department has held that "[a]lthough 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
party."
conduct by the other 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
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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 plaintiffs 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 v. Flitter, 112 A.D.2d 1030, 493 N.Y.S.2d 28 (2d Dept. 1985).
defendants'
It is undisputed that the instant action involves the 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 the
defendants'
failure of the 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
cars."
between the See 269 A.D.2d 250, 251, 703 N.Y.S.2d 124, 125, 2000 N.Y. App. LEXIS
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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. Robego, 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
short."
claim that [the other] vehicle stopped & (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
negligence."
"sufficient defense to rebut the presumption of 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
conditions."
account the weather and road Id. (citing Rodriquez v. City ofNew 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. Phillip_s, 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. & at
271, 547 (Citing Section I129(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. R Thus, "drivers have a 'duty to see what should be seen
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accident."
and to exercise reasonable care under the circumstances to avoid an 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
vehicle'
anticipate and react to the slow and cautious movement of [the lead] is not an adequate,
non-negligent explanation for the accident.R(quoting Galante v. BMW Financial Services North
America, 223 A.D.2d 421, 636 N.Y.S.2d 58 (1st 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 plaintiff in a number
of different rear end collision situations. That department has found that plaintiff was entitled to
traffic."
Summary Judgment when "the front vehicle stops suddenly in slow moving 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. 4 (citing Barba v. Best Sec. Corp., 235
A.D.2d 381, 652 N.Y.S.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.
E (citing Cohen v. Terranella, 112 A.D.2d 264, 491 N.Y.S.2d 711 (2d Dept. 1985)).
In the case at bar, defendants, BARBARA A. DOBBINS and TAYLOR C. DOBBINS,
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
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demonstrates that no issues of fact remain open: plaintiff, is not violating any provisions of the
New York State Vehicle and Traffic Law; defendant TAYLOR C. DOBBINS violently struck the
plaintiff's vehicle in the rear, causing plaintiff, GIUSEPP1NA IANNIELLO, to sustain serious and
permanent personal injuries; and defendant TAYLOR C. DOBBINS failed to operate the motor
vehicle with the proper exercise of due care which is required by law.
In the instant action, it is respectfully submitted that the defendant has failed to set forth
any defenses that could have contributed to this accident other than his own fault. As the defendant
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 allowed to proceed with discovery as to damages
only, together with such other, further, and different relief as this Court may deem just and proper.
Dated: Mineola, New York
July 9, 2020
IHO RATAN
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FILED: NASSAU COUNTY CLERK 07/10/2020 11:22 AM INDEX NO. 616874/2019 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 07/10/2020 SUPREME COURT OF THE STATE OF NEW YORK Index No: 616874/2019 COUNTY OF NASSAU -- --------------------X GIUSEPPINA IANNIELLO Plaintiff, -against- BARBARA A. DOBBINS and TAYLOR C. DOBBINS, Defendants. ------------------------- X PLAINTIFF'S MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT ------- . .. ------ .--- ------------ SANDERS, SANDERS, BLOCK, WOYCIK, VIENER & GROSSMAN, P. C. Attorneys for Plaintiff OF COUNSEL: IHOR STRATAN 1 of 10 FILED: NASSAU COUNTY CLERK 07/10/2020 11:22 AM INDEX NO. 616874/2019 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 07/10/2020 TABLEOF CONTENTS Page TableofAuthorities...................................... ii Preliminary Statement.................................... 1 StatementofFacts....................................... 2 Argument.............................................. 3-8 Conclusion............................................. 8 2 of 10 FILED: NASSAU COUNTY CLERK 07/10/2020 11:22 AM INDEX NO. 616874/2019 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 07/10/2020 TABLE OF AUTHORITIES Cases Abramowicz v. Roberto. 220 A.D.2d 374, 631 N.Y.S.2d 442 (2d Dept. 1995) Andre v. Pomerov, 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 1922, 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 (1st Dept. 1999) Leal v. Wolff, 224 A.D.2d 392, 638 N.Y.S.2d 110 (2d Dept. 1996) Mitchell v. Ga= , 269 A.D.2d 250, 703 N.Y.S.2d 124 (1st Dept. 2000) Morowitz v. Nau hton, 150 A.D.2d 536, 541 N.Y.S.2d 122 (2d Dept. 1989) O'Callaghan v. Flitter, 112 A.D.2d 1930, 493 N.Y.S.2d 28 (2d Dept. 1985) Starace v. Inner Circle Oonexions, 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 1129(a) 3 of 10 FILED: NASSAU COUNTY CLERK 07/10/2020 11:22 AM INDEX NO. 616874/2019 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 07/10/2020 PRELIMINARY S_TATEMENT This Memorandum of Law is respectfully submitted in support of the instant Notice of Motion dated July 9, 2020, 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 September 5, 2019. STATEMENT OF FACTS On September 5, 2019, at approximately 9:55 a.m., plaintiff, GIUSEPPINA IANNIELLO, was lawfully operating a 2008 Mercedes Benz with New York State license plate number GLX6123 owned by non-party Filomena M Ianniello, on Earle Ovington Boulevard, Hempstead, County of Nassau, State of New York. At that time, plaintiff's motor vehicle was completely stopped for a red light when it was violently struck in the rear by a 2010 MINI Cooper bearing New York State license plate number HZY3416. Plaintiff felt one impact to the rear of her car and her body moved as a result of the impact: her upper body jerked forward and backward and her head hit the headboard of the seat. The offending vehicle was owned by defendant BARBARA A DOBBINS and operated by defendant TAYLOR C. DOBBINS. As a result of this collision, plaintiff, GIUSEPPINA IANNIELLO, sustained severe and permanent injuries, from which he has not fully recovered to this day. These injuries include, but are not limited to, the following: CERVICAL SPINE C2-3 DISC BULGE (CONFIRMED BY MRI OF OCTOBER 21, 2019) C3-4 RIGHT SIDED HERNIATION WITH RIGHT-SIDED CORD FLATTENING (CONFIRMED BY MRI OF OCTOBER 21, 2019) C4-5 RIGHT POSTEROLATERAL HERNIATION RESULTING IN 4 of 10 FILED: NASSAU COUNTY CLERK 07/10/2020 11:22 AM INDEX NO. 616874/2019 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 07/10/2020 RIGHT CORD FLATTENING AND RIGHT FORAMINAL STENOSIS (CONFIRMED BY THE MRI OF OCTOBER 21, 2019) C5-6 RIGHT PARACENTRAL HERNIATION WITH ANNULAR TEAR RESULTING IN CORD IMPINGEMENT (CONFIRMED BY THE MRI OF OCTOBER 21, 2019) C6-7 POSTEROLATERAL HERNIATION RESULTING IN EFFACEMENT OF THECAL SAC AND RIGHT FORAMINAL STENOSIS (CONFIRMED BY THE MRI OF OCTOBER 21, 2019) LEFT SIDED C6 RADICULOPATHY (CONFIRMED BY THE EMG OF OCTOBER 16, 2019) THORASIC SPINE T1-2 CENTRAL HERNIATION WITH ANNULAR TEAR WITH MASS EFFECT ON THE VENTRAL SAC (CONFIRMED BY MRI OF OCTOBER 21, 2019) T7-8 FOCAL CENTRAL DISC HERNIATION WITH SUPERIOR EXTRUSION BY 2MM WITH SPINAL STENOSIS (CONFIRMED BY THE MRI OF NOVEMBER 08, 2019) LUMBAR SPINE L2-3 DISC BULGE (CONFIRMED BY THE MRI OF OCTOBER 21, 2019) L3-4 BULGING DISC WITH FLATTENING OF THE THECAL SAC (CONFIRMED BY THE MRI OF OCTOBER 21, 2019) L4-5 BULGING DISC WITH FLATTENING OF THE THECAL SAC (CONFIRMED BY THE MRI OF OCTOBER 21, 2019) L5-S1 DISC BULGE (CONFIRMED BY THE MRI OF OCTOBER 21, 2019) LEFT SIDED L4 RADICULOPATHY (CONFIRMED BY THE EMG OF OCTOBER 22, 2019). 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 5 of 10 FILED: NASSAU COUNTY CLERK 07/10/2020 11:22 AM INDEX NO. 616874/2019 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 07/10/2020 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 she bases her 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. h 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. h 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 that Summary 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. Armstead, 36 A.D.2d 593, 318 N.Y.S.2d 407 (1st Dept. 1971). Further, the Second Department has held that "[a]lthough 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 party." conduct by the other 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 6 of 10 FILED: NASSAU COUNTY CLERK 07/10/2020 11:22 AM INDEX NO. 616874/2019 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 07/10/2020 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 plaintiffs 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 v. Flitter, 112 A.D.2d 1030, 493 N.Y.S.2d 28 (2d Dept. 1985). defendants' It is undisputed that the instant action involves the 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 the defendants' failure of the 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 cars." between the See 269 A.D.2d 250, 251, 703 N.Y.S.2d 124, 125, 2000 N.Y. App. LEXIS 7 of 10 FILED: NASSAU COUNTY CLERK 07/10/2020 11:22 AM INDEX NO. 616874/2019 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 07/10/2020 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. Robego, 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 short." claim that [the other] vehicle stopped & (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 negligence." "sufficient defense to rebut the presumption of 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 conditions." account the weather and road Id. (citing Rodriquez v. City ofNew 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. Phillip_s, 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. & at 271, 547 (Citing Section I129(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. R Thus, "drivers have a 'duty to see what should be seen 8 of 10 FILED: NASSAU COUNTY CLERK 07/10/2020 11:22 AM INDEX NO. 616874/2019 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 07/10/2020 accident." and to exercise reasonable care under the circumstances to avoid an 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 vehicle' anticipate and react to the slow and cautious movement of [the lead] is not an adequate, non-negligent explanation for the accident.R(quoting Galante v. BMW Financial Services North America, 223 A.D.2d 421, 636 N.Y.S.2d 58 (1st 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 plaintiff in a number of different rear end collision situations. That department has found that plaintiff was entitled to traffic." Summary Judgment when "the front vehicle stops suddenly in slow moving 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. 4 (citing Barba v. Best Sec. Corp., 235 A.D.2d 381, 652 N.Y.S.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. E (citing Cohen v. Terranella, 112 A.D.2d 264, 491 N.Y.S.2d 711 (2d Dept. 1985)). In the case at bar, defendants, BARBARA A. DOBBINS and TAYLOR C. DOBBINS, 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 9 of 10 FILED: NASSAU COUNTY CLERK 07/10/2020 11:22 AM INDEX NO. 616874/2019 NYSCEF DOC. NO. 12 RECEIVED NYSCEF: 07/10/2020 demonstrates that no issues of fact remain open: plaintiff, is not violating any provisions of the New York State Vehicle and Traffic Law; defendant TAYLOR C. DOBBINS violently struck the plaintiff's vehicle in the rear, causing plaintiff, GIUSEPP1NA IANNIELLO, to sustain serious and permanent personal injuries; and defendant TAYLOR C. DOBBINS failed to operate the motor vehicle with the proper exercise of due care which is required by law. In the instant action, it is respectfully submitted that the defendant has failed to set forth any defenses that could have contributed to this accident other than his own fault. As the defendant 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 allowed to proceed with discovery as to damages only, together with such other, further, and different relief as this Court may deem just and proper. Dated: Mineola, New York July 9, 2020 IHO RATAN 10 of 10