City Emergency vehicle struck in rear
A highway maintenance worker while driving his emergency vehicle on the Belt Parkway was struck in the rear by the defendant’s vehicle. Our Experienced Car Accident Lawyers made a motion for summary judgment to win the case as a matter of law and we won our motion. The defendant was found 100 percent responsible for the accident and the only issue remaining was for a jury to decide the damages.
NYRELL HARRIS V. NOAM YISRAEL HIRSCHORN AND DAVID HIRSCHORN
SUPREME COURT, QUEENS COUNTY, INDEX # 710903/2020
Plaintiff Nyrel Harris (“plaintiff’) moves, pursuant to New York Civil Practice Law and Rules (‘CPLR’) S 3212, for summary judgment on liability. Plaintiff also moves to strike defendants’ first and second affirmative defenses as to plaintiffs alleged comparative negligence and failure to wear a seatbelt. Defendants Noam Yisrael Hirschorn, the driver of the vehicle owned by David Hirschorn (collectively “defendants”), oppose the motion. Upon the papers submitted, plaintiff’s motion is granted in its entirety.
This action arises out of a motor vehicle accident that occurred on June 3,2020. Plaintiff alleges that he sustained personal injuries as a result of a hit-in-the-rear collision that occurred on the Belt Parkway at its interaction with East 14th Street in Kings County, New York.
ln his motion, plaintiff avers that he was a seat-belted driver of an emergency maintenance vehicle on Belt Parkway during the course of his employment for the New York City Department of Transportation when defendants’ vehicle struck his vehicle in the rear in violation of Vehicle and Traffic Law $ ‘1 129(a). Plaintiff also asserts that there is no evidence to show that he was comparatively negligent for the happening of the alleged accident.
ln opposition, defendants argue that plaintiff’s pre-discovery motion for summary judgment as to liability and to strike their first and second affirmative defenses regarding plaintiffs alleged comparative negligence and failure to wear a seatbelt should be denied as premature as it is only through discovery that they may have the means to show the existence of a material issue of fact.
ln reply, plaintiff asserts that defendants have failed to offer a non-negligent explanation for the rear-end collision or submit an affidavit from the driver attesting to the same.
Summary judgment pursuant to CPLR S 3212 provides a mechanism for the prompt disposition, prior to trial, of civil actions which can be decided as a matter of law (see generally, Brill v. City of New York, 2 NY3d 648, 650 ). On a motion for summary judgment, the moving party must make out a prima facie case by submitting evidence in admissible form which establishes its entitlement to judgment as a matter of law (see, Marshall v Arias, 12 AD3d 423, 424[2d Dept 2004]). Upon such a showing, the burden shifts to the non-moving party to present admissible evidence which demonstrates the necessity of a trial as to an issue of fact (see, Zolin v Roslyn Synagogue, 154 AD2d 369, 369 [2d Dept 1989]). The non-moving party must be afforded every favorable inference that can be drawn from the evidentiary facts established (see, McArdle v M & M Farms, 90 AD2d 538 [2d Dept i982]). However, conclusory, unsupported allegations or general denials are insufficient to defeat a motion for summary judgment (see, William lselin Co. lnc. v Landau ,71NY2d 420,427 ; Stern v Stern, 87 AD2d 887, 887 [2d Dept 1982]).
As a preliminary matter, plaintiffs pre-discovery motion for summary judgment is not premature (see, Rainford v Han, 18 AD3d 638, 639-40 [2d Dept 2005]). Indeed, the Appellate Division, Second Department has held that, “The purported need to conduct discovery [does] not warrant denial” of a motion for summary judgment where “[t]he opponents of the motion had personal knowledge of the relevant facts” (see id Emil Norsic & Son. lnc. v L.p. Transp., lnc., 30 AD3d 368, 369 [2d Dept 2006]; Rainford, 18 AD3d at 639-40, supra: Niyazov v Bradford, 13AD3d 501 , 502 [2d Dept 2004]; Morissaint v Raemar Corp.,271 AD2d 5A6,587 I2d Dept 20001). Here, the relevant facts underlying the alleged accident would be within Noam Yisrael Hirschorn’s personal knowledge as he was the driver of the vehicle that allegedly struck plaintiffs vehicle in the rear. Accordingly, defendants’ “purported need to conduct discovery does not warrant denial of the motion” (see, Emil Norsic & Son. lnc. 30 AD3d at 369 suora; Rainford, 18 AD3d at 639-40, supra).
Turning to the substance of plaintiff’s motion, plaintiff contends that defendants violated Vehicle and Traffic Law g 1129(a). Under New York Vehicle and Traffic Law Sec. 1129(a) “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.” Therefore, “[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. (Nsiah-Ababio v Hunter, 78 AD3d 672, 672 [2d Dept 2010]; NY Veh & Traf. Law Sec. 1129). ln that regard, “a rear-end collision 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 nonnegligent explanation for the collision” (Ortiz v Hub Truck Rental Corp , 82 AD3d 725,726 [2d Dept 2011]).
Here, plaintiff has met his burden by submitting evidence sufficient to establish his prima facie entitlement to summary judgment on the issue of liability (see, Emil Norsic & Son. lnc., 30 AD3d at 368, supra). lndeed, plaintiff has submitted an affidavit in which he attests that he was driving in the left on Belt Parkway when he “felt a sudden impact upon the rear of [his] vehicle by the defendant’s motor vehicle (see, Pl. Exh. B; Clements v Giatas, 178 AD3d 894, 895 [2d Dept 2019]; Oniz,82 AD3d at 727 , supra).
ln opposition to plaintiffs prima facie showing of negligence, defendants failed to raise a triable issue of fact as to the existence of a non-negligent explanation for the rear end collision (see, Ortiz, 82 AD3d a|727, supra). lndeed, defendants neither contest that they struck plaintiffs vehicle in the rear nor provide a non-negligent explanation for the rear-end collision (see, id.; Nivazov v Hunter EMS, lnc., 154 AD3d 954, 955 [2d Dept 20171; Zweeres v Materi, 94 AD3d 1111,1112 [2d Dept 2012]; Smith v Seskin,49 AD3d 628,629 [2d Dept 2008]; Nivazov, 13 AD3d at 502; supra; Morissaint, 271 AD2d at 587, supra). Accordingly, as defendants have failed to rebut plaintiff’s prima facie showing of negligence, the branch of plaintiff’s motion seeking summary judgment on the issue of liability is granted.
Similarly, as defendants have not raised a triable issue of fact as to whether plaintiff caused the alleged accident or “whether any culpable conduct” by plaintiff “contributed to the happening of the subject accident” (see, supra), plaintiffs application to strike defendants’ first affirmative defense regarding the same is granted (see, Rodriquez ,31 NY3d at 324, supra; Nivazov, 154 AD3d 955, supra; Comas-Bourne v City of New York, 146 AD3d 855, 856 [2d Dept 2017]).
Furthermore, plaintiff’s application to strike defendants’ second affirmative defense regarding his alleged failure to wear a seatbelt is granted. Notably, in his affidavit, plaintiff avers that he was wearing a seatbelt at the time of the alleged accident (see, Pl. Exh. B; Giwa v Bloom, 154 AD3d 921,923 [2d Dept 2017]; Johnson v Barry, No. 32570/2018E, 2019 WL 4922536, at 1 [NY Sup Ct Aug 26,20191; see also, Brabham v City of New York, 105 AD3d 881, 883 [2d Dept 2013]). ln response, defendants did not oppose plaintiff’s statement or submit any evidence to rebut plaintiff’s assertion (see, id.). Accordingly, this branch of plaintiff’s motion is granted, and defendants’ second affirmative defense as to the same is dismissed.
ln sum, the branch of plaintiff’s motion for summary judgment on the issue of liability is granted. The Court further grants the branch of plaintiff’s motion to strike defendants’ first and second affirmative defenses regarding plaintiffs alleged comparative negligence and failure to wear a seatbelt.
This constitutes the Decision and Order of the Court
Dated: May 6, 2021
Donna-Marie E. Golia, J.S.C.