Motion-Secondary: Dianne Davis v. Franz A Matzelle

On March 07, 2018 a Motion-Secondary was filed involving a dispute between Dianne Davis, and Franz A Matzelle, for Torts - Motor Vehicle in the District Court of Queens County.

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FILED: QUEENS COUNTY CLERK 04/14/2021 11:12 AM INDEX NO. 703510/2018
NYSCEF DOC. NO. 48 RECEIVED NYSCEF: 04/14/2021

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF QUEENS
-------------------------------------------------------------------X
DIANNE DAVIS, Index No.: 703510/2018

Plaintiff,
AFFIRMATION
-against- IN REPLY

FRANZ A. MATZELLE,

Defendant.
----------------------------------------------------------------------X

JACOB L. LEVINE, an attorney duly admitted to practice law before the Courts of this

State, does hereby affirm the truth of the following statements, upon information and belief,

under penalty of perjury, and pursuant to CPLR § 2106:

1. I am an associate of the law firm Lerner, Arnold & Winston, LLP, attorneys for

Plaintiff, DIANNE DAVIS (“Plaintiff”), in the above referenced matter. As such, I am fully

familiar with all the facts and circumstances concerning the instant application.

2. I submit this affirmation in reply to Defendant’s Opposition to Plaintiff’s motion

for partial summary judgment on the issue of liability against Defendant FRANZ A.

MATZELLE (“Defendant”), together with such other and further relief as this Court may deem

just and proper.

CASE SUMMARY

3. On March 15, 2017, Plaintiff, 51 years old, was the operator of a motor vehicle

on the Southern State Parkway in Nassau County. At said place and time her vehicle was struck

in the rear by a vehicle owned and operated by Defendant Franz A. Matzelle. As a result of the

impact, Plaintiff suffered serious personal injuries. The facts and circumstances of the subject

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incident giving rise to this action are detailed in the Plaintiff’s affidavit. (A copy of Plaintiff,

DIANNE DAVIS’ affidavit was annexed as EXHIBIT “1” in the original filing).

4. Defendant FRANZ A. MATZELLE admits to striking the rear of Plaintiff’s

vehicle with the front of his vehicle, which is shown in a Certified Police Report. New York

VTL § 1129(a) states that "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."

LEGAL ARGUMENT IN REPLY

5. Where there are no issues of fact to be determined as to the cause of a collision,

summary judgment on the issue of liability is appropriate. Andre v. Pomeroy, 35 NY2d 361, 362

NYS2d 131 (1974).

6. While Defendant cites to a series of cases in support of its contention that they

have provided a “non-negligent” explanation for the rear-end car collision that led to the

Plaintiff’s injuries, Defendant’s arguments are unsupported by law or by the facts.

7. The evidence shown in testimony and the certified Police report reveals that a

sudden-stop did not occur here and there is no support that a wet roadway could have caused the

collision. Mere hopes that issues of fact exist are simply mere hopes and are not sufficient to

defeat a summary judgment motion.

8. Contrary to defense counsel’s argument, the Second Department is not “split as to

whether a sudden stop by the lead vehicle constitutes a sufficient explanation to defeat summary

judgment.” In Catanzaro v Edery, 172 A.D.3d 995 (2nd Dept. 2019) the Court held that “[a]

plaintiff is no longer required to show freedom from comparative fault in order to establish his or

her prima facie entitlement to judgment as a matter of law on the issue of liability (see Rodriguez

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v City of New York, 31 NY3d 312, 314, 76 NYS3d 898, 101 NE3d 366 [2018]; Merino v Tessel,

166 AD3d 760, 760, 87 NYS3d 554 [2018]). ‘A driver of a vehicle approaching another vehicle

from the rear is required to maintain a reasonably safe distance and rate of speed under the

prevailing conditions to avoid colliding with the other vehicle’ (Witonsky v New York City Tr.

Auth., 145 AD3d 938, 939, 43 NYS3d 505 [2016], quoting Nsiah-Ababio v Hunter, 78 AD3d

672, 672, 913 NYS2d 659 [2010]; see Vehicle and Traffic Law § 1129 [a]).

9. Furthermore, "[a] rear-end collision with a stopped or stopping vehicle establishes

a prima facie case of negligence on the part of the operator of the rear vehicle, thereby requiring

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

the collision" (Arslan v Costello, 164 AD3d 1408, 1409, 84 NYS3d 229 [2018] [internal

quotation marks omitted]; see Edgerton v City of New York, 160 AD3d 809, 810, 74 NYS3d 617

[2018]). Although a sudden stop of the lead vehicle may constitute a non-negligent

explanation for a rear-end collision, 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 vehicle and the vehicle ahead." (Emphasis supplied). (Arslan v Costello, 164 AD3d at

1409-1410 [internal quotation marks omitted]; see Waide v ARI Fleet, LT, 143 AD3d 975, 976,

39 NYS3d 512 [2016]). Catanzaro v Edery, 172 A.D.3d 995, 996, 101 N.Y.S.3d 170, 171, 2019

N.Y. App. Div. LEXIS 3791, 2-3, 2019 NY Slip Op 03762, 1-2, 2019 WL 2113015.

10. In a decision especially on-point here, the Court in Animah v Agyei emphatically

held the following:

This motion presents a fundamental, recurring issue
in motor vehicle accident litigation: does an assertion
that the driver of a rear-ended vehicle made
a sudden stop immediately before the accident raise a

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triable issue of fact as to whether the defendant driver
of the rear-ending vehicle has a non-negligent
explanation for the accident? For the reasons that
follow, the court concludes that an assertion that
the driver of a rear-ended vehicle made
a sudden stop on a local public roadway within the
City of New York, standing alone, is insufficient to
raise a triable issue of fact as to whether the
defendant driver has a non-negligent explanation.
Animah v Agyei, 63 Misc. 3d 783, 784, 97 N.Y.S.3d
440, 441, 2019 N.Y. Misc. LEXIS 1243, 1, 2019 NY
Slip Op 29080, 1, 2019 WL 1372347.

11. The Court in Animah reasoned that “[t]he operator of a motor vehicle is required

to follow myriad rules when operating a vehicle. Among those rules are the fundamental

obligations of a driver to make reasonable use of his and her senses (and, concomitantly, be

aware of traffic conditions), drive at a safe rate of speed under the existing conditions, and

maintain a safe distance from other vehicles under the existing conditions (see Miller v DeSouza,

165 AD3d 550, 89 NYS3d 79 [1st Dept 2018]). In light of these fundamental obligations,

"a rear-end collision with a stopped vehicle establishes a prima facie case of negligence on the

part of the operator of the second vehicle [i.e., the vehicle that struck the rear end of another

vehicle]" (Johnson v Phillips, 261 AD2d 269, 271, 690 NYS2d 545 [1st Dept 1999]; see

e.g. Tutrani v County of Suffolk; Bajrami v Twinkle Cab Corp., 147 AD3d 649, 46 NYS3d 879

[1st Dept 2017]; Matos v Sanchez, 147 AD3d 585, 47 NYS3d 307 [1st Dept 2017]; Maisonet v

Roman, 139 AD3d 121, 30 NYS3d 24 [1st Dept 2016]; Morgan v Browner, 138 AD3d 560, 28

NYS3d 594 [1st Dept 2016]; Cruz v Lise, 123 AD3d 514, 999 NYS2d 41 [1st Dept

2014]; Cabrera v Rodriguez, 72 AD3d 553, 900 NYS2d 29 [1st Dept 2010]). After all, a

driver making reasonable use of his or her senses, driving at a safe rate of speed under the

existing conditions, and maintaining a safe distance from other motor vehicles should not hit the

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vehicle in front of him or her.” Animah v Agyei, 63 Misc. 3d 783, 785-786, 97 N.Y.S.3d 440,

442, 2019 N.Y. Misc. LEXIS 1243, 3-4, 2019 NY Slip Op 29080, 1, 2019 WL 1372347.

12. Moreover, the Court explained that “[a] claim that the lead driver came to

a sudden stop, standing alone, is insufficient to rebut the presumption that the

rearmost driver was negligent and the stopped vehicle was not negligent" (Giap v Hathi Son

Pham, 159 AD3d 484, 485, 71 NYS3d 504 [1st Dept 2018]; see e.g. Bajrami v Twinkle Cab

Corp.; Morgan v Browner; Cruz v Lise; Cabrera v Rodriguez; Francisco v Schoepfer, 30 AD3d

275, 817 NYS2d 52 [1st Dept 2006]; Woodley v Ramirez, 25 AD3d 451, 810 NYS2d 125 [1st

Dept 2006]; Johnson v Phillips). This is because, as noted above, a driver has a duty to

maintain a safe distance between his or her vehicle and the vehicle ahead so as to avoid

a collision with the latter should it stop (see e.g. Morales v Consolidated Bus Tr., Inc., 167

AD3d 457, 89 NYS3d 163 [1st Dept 2018]; Chame v Kronen, 150 AD3d 622, 55 NYS3d 228

[1st Dept 2017]; Tejeda v Aifa; Corrigan v Porter Cab Corp., 101 AD3d 471, 955 NYS2d 336

[1st Dept 2012]; Dattilo v Best Transp. Inc., 79 AD3d 432, 913 NYS2d 163 [1st Dept

2010]; Dicturel v Dukureh, 71 AD3d 558, 897 NYS2d 87 [1st Dept 2010]; Soto-Maroquin v

Mellet, 63 AD3d 449, 880 NYS2d 279 [1st Dept 2009]). The contours of that duty in a given

situation depend on the prevailing conditions (e.g., density of traffic, condition of roadway,

weather) (see Renteria v Simakov, 109 AD3d 749, 972 NYS2d 15 [1st Dept 2013]; Mitchell v

Gonzalez, 269 AD2d 250, 703 NYS2d 124 [1st Dept 2000]). If a driver fulfills that duty, he or

she should not hit the rear end of the vehicle in front of the driver's vehicle, even if the lead

vehicle stops suddenly. (Emphasis supplied). Animah v Agyei, 63 Misc. 3d 783, 786-787, 97

N.Y.S.3d 440, 443, 2019 N.Y. Misc. LEXIS 1243, 4-5, 2019 NY Slip Op 29080, 2, 2019 WL

1372347.

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13. At the time of the subject incident, Police Officer Faith Ket arrived on scene and

in the course of her professional duties prepared a New York City Police Accident Report MV-

104A. A police officer has an obligation as part of her regular course of duty to generate a

police accident report. See CPLR §4518(a). (A Copy of Police Report MV-104A is annexed

hereto as EXHIBIT “7”). Officer Ket recorded the statements from the respective drivers.

Plaintiff, is designated on the report as driver number two on page one:

V-2 traveling behind V-1 observed V-1 coming to a stop and stops
behind it. V-3 which is traveling behind V-2 sees V-2 coming to a
stop but is unable to due to following too closely and strikes.
(Emphasis supplied).

The statement by Plaintiff and admission by Matzelle is sufficient to show prima facie proof of

liability warranting partial summary judgment on the issue of liability.

14. Plaintiff’s motion for partial summary judgment on the issue of liability should be

granted as Defendant is solely liable for the automobile accident due to following too closely.

This motion must be granted as there is no issue of material fact present.

15. Moreover, there has been no allegation of erratic driving by Plaintiff and all have

testified that the traffic conditions were regular prior to the collision.

16. Additionally, Defendant and Plaintiff both acknowledged that they were plainly

aware of the wet road conditions following a snow storm the day before the collision occurred.

17. As such, Defendant’s argument that the wet conditions created a non-negligent

explanation is also not viable here because the Defendant knew about the road conditions and

had a heightened duty to drive even more carefully because of the known wet condition of the

roadway. “Wet, slippery roadway conditions do not, alone, constitute an adequate non-negligent

explanation, absent proof that the condition was unanticipated. (see Smith v Perfectaire Co., 270

A.D.2d 410, 704 N.Y.S.2d 640 [2000]). The record [in Stringari] warrants the inference, as a

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matter of law, that defendant driver knew the road from previous visits, was aware that the road

curved, knew or should have known that the pavement was slushy… and therefore should have

anticipated the circumstances causing the skid, which he admitted in deposition to have been the

cause of the accident.” Stringari v. Peerless Imps., Inc., 304 A.D.2d 413, 413-414, 757 N.Y.S.2d

554, 555, 2003 N.Y. App. Div. LEXIS 4094, 1-2.

18. As this Court is aware, “to warrant summary judgment, it must clearly appear that

no material or triable issue of fact is presented”. Wanger v. Zeh, 45 Misc. 2d 93, 256 N.Y.S. 2d

227 (1965). When there is no genuine issue to be resolved at trial, an unfounded reluctance to

employ summary judgment will serve only to swell the Trial Calendar and deny other litigants

the right to prompt adjudication of their claims. Andre v. Pomeroy, 35 N.Y.2d 361 (1974).

19. It is uncontroverted that Franz A. Matzelle was driving a motor vehicle that rear

ended Plaintiff’s vehicle without a non-negligent explanation as to why he failed to see what

there was to be seen upon the roadway, i.e. Plaintiff’s vehicle.

20. Here, itis clear that the collision was caused solely by Defendant’s actions and

was in no way by any fault or action of Plaintiff.

21. It is well settled law, in a rear-end collision with a stopped vehicle creates a

prima facie case of liability with respect to the operator and owner of the moving vehicle, and

imposes a duty on the operator of the moving vehicle to come forward with an adequate non-

negligent explanation for the accident. Vavoulis v. Adler, 43 A.D.3d 1154, 842 N.Y.S.2d 526

(2d Dept. 2007). See also Escalera v. Ryan, 2002 WL 31455337 (N.Y. Sup. App. Term 2002)

(Plaintiff’s car was at a full stop when it was rear-ended by Defendant and Defendant failed to

provide a non-negligent explanation. Summary judgment granted for Plaintiff.)

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22. It cannot be disputed that Defendant is in violation of Vehicle and Traffic law §

1129(a) which states that “[t]he 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.”

23. Further, the New York Pattern Jury Instruction relating to rear-end collisions

states, in relevant part: “The Plaintiff AB claims that (his/her) vehicle was struck in the rear by a

vehicle driven by the Defendant CD. Since AB’s vehicle was struck in the rear, you must find

that CD was negligent, unless CD has provided an adequate explanation that does not involve

any negligence on (his, her) part.” PJI 2:82.

24. Finally, it is well settled that “if the operator of the moving vehicle cannot come

forward with any evidence to rebut the inference of negligence, the Plaintiff may properly be

awarded summary judgment as a matter of law.” Leal v. Woff, 224 A.D.2d 392 (2d Dept. 1996);

see also Russ v. Investech Sec., Inc., 6 A.D.3d 602 (2d Dept. 2004).

25. Plaintiff has unquestionably made a prima facie showing of entitlement to partial

summary judgment as a matter of law on the issue of liability, since she has submitted sufficient

evidence showing that the front of Defendants’ motor vehicle struck the rear of Plaintiff’s motor

vehicle.

26. Accordingly, Plaintiff’s motion, pursuant to CPLR §3212, for partial summary

judgment on the issue of liability must be granted in all respects.

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WHEREFORE, Plaintiff, DIANNE DAVIS respectfully requests that this Court grant

the instant motion for partial summary judgment pursuant to CPLR § 3212 on the issue of

liability, and such other and further relief as to this Court deems just and proper.

Dated: New York, New York
April 14, 2021

_/s/ Jacob L. Levine______________
Jacob L. Levine

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Carmen R Velasquez Track Judge’s New Case

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Document Filed Date

April 14, 2021

Case Filing Date

March 07, 2018

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Motion-Secondary: Dianne Davis v. Franz A Matzelle

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