Coronavirus (COVID-19) Alert: Our firm is open and serving the needs of existing and new clients.

SE HABLA ESPAÑOL               ГОВОРИМ ПО РУССКИ               MÓWIMY PO POLSKI

Coronavirus (COVID-19) Alert: Our firm is open and serving the needs of existing and new clients.

Construction Accidents | Car Accidents
Workers Compensation

Injured in an Accident? We Can Help. Call for a Free Consultation. 24/7

212-808-0448

Struck in the Rear at a Traffic Light

The defendant motor vehicle driver struck the plaintiff’s motor vehicle in the rear while stopped at a traffic light in Westchester County, New York. The defendant claimed brake failure. BBNR made a motion asking the court to determine that the defendant was at fault as a matter of law. The judge granted our motion and the only issue left for a jury to decide was how much money to award. The case settled shortly after winning this decision.

DOROTHY OGLESBY v. KATHERINE IZAGUIRRE and TEOBALDO IZAGUIREE

Supreme Court, County of Westchester, Index No. 3466/11

This action arises out of a vehicle collision that occurred on August 21, 2009, at about 4:20PM, when the vehicle operated by plaintiff was struck in the rear by the vehicle operated by defendant Katherine Izaguirre and owned by defendant Teobaldo Izaguirre. In her affidavit in support of this motion for partial summary judgment, plaintiff states that at the time of the incident she was stopped in traffic for a red light when her car was struck in the rear. She states that she was fully stopped for over 30 seconds before she was struck. She further states that she did not hear sound of brakes, horns or screeching tires.

Plaintiff submits the Police Accident Report in support of her motion.. In the report, the officer who responded to the scene writes that defendant Katherine Izaguirre stated that her brakes did not work which caused her to rear end plaintiff’s car. The officer also states that plaintiff’s car was stopped in traffic.

This motion is opposed by defendants. In her affidavit, defendant Katherine Izaguirre states that at the time in question, plaintiff’s vehicle stopped short. Although she attempted to stop, she was unable to do so before striking plaintiff’s car. Defendants also contend that this motion is premature. In reply to the opposition, plaintiff notes that the statements contained in the affidavit of defendant Katherine Izaguirre are contrary to the statements she gave to the police at the scene of the accident.

It is well settled that 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 negllgence by providing a non negligent explanation for the collision (Kastritsios v Marcello, 84 AD3d 1174 [2d Dept 2011]; Cortes v Whelan, 83 AD3d 763 [2d Dept 2011]; Stanton v Dragos Lav Ilic, 69 AD3d 606 [2d Dept 20 l O). Here, plaintiff submits her affidavit in which she states that she was stopped at a red light when her vehicle was struck in the rear by defendants’ vehicle. This establishes her prima facie entitlement to judgment as a matter of law on the issue of liability. (Kastritsios v. Marcello, 84 AD3d 1174 [2d Dept 2011]). In response to the motion, defendants submit the affidavit of defendant Katherine Izaguirre who makes the claim that plaintiff’s vehicle made an abrupt stop. This claim, standing alone, is insufficient to rebut the presumption of negligence on the part oftl1e following vehicle (Kastritsios v Marcello, 84 AD3d 1174 [2d Dept 2011]; Stanton v Dragos Lav Ilic, 69 AD3d 606 [2d Dept 2010]; Soto­ Maroquin v Mellet, 63 AD3d 449 [2d Dept 2009]; Campbell v City of Yonkers, 37 AD3d 750 [2d Dept 2007]; Dickie v Shi, 304 AD2d 786 [2d Dept 2003]).

Additionally, the explanation given by defendant Katherine Izaguirre to the police officer at the time of the accident, is insufficient, without more, to defeat this motion. In instances where the driver of the rear vehicle alleges that the accident was caused by brake failure, the driver must present evidence demonstrating that the brake problem was unanticipated and that reasonable care has been exercised to keep the brakes in good working order (Reid vRayamajhi, 17 AD3d 557 [2d Dept 2005]). Here, defendants fail to submit any evidence that the alleged brake failure was unanticipated and that they exercised reasonable care in maintaining the brakes in proper working order.

Lastly, contrary to defendants’ contention, this motion is not premature. Defendants fail to offer any evidence to suggest that discovery may lead to relevant evidence or that facts essential to opposing the motion are exclusively within the knowledge and control of plaintiff. The mere hope or speculation that evidence sufficient to defeat a motion for summary judgment may be uncovered during the discovery process is an insufficient basis for denying the motion (Cortes v. Whelan, 83 AD3d 763 [2d Dept 2011]; Kimyagarov v Nixon Taxi Corp., 45Ad3d 736 [2d Dept 2007]).

Accordingly, it is:

ORDERED that plaintiff’s motion for summary judgment on the issue of liability is granted; and it is further,

ORDERED that the parties are directed to appear in the Preliminary Conference Part, Room 800 on March 1, 2012, at 9:30AM to set a schedule for the completion of discovery on the issue of damages.

Dated: February 2, 2012

Hon. Joan B. Lefkowitz, J.S.C.

Select A Practice Area

Construction Accident

$1,700,000

$1.7 million verdict in New York County against the driver of a delivery truck who struck a man as he was crossing the street within the crosswalk in Manhattan.

Motor Vehicle Accident

$3,600,000

$3.6 Million settlement in New York Supreme Court for a Spanish speaking construction worker who fell off a 6 foot ladder and landed onto metal and wooden debris. The worker required lumbar spinal surgery for his injuries and needed surgeries to both knees from the fall. The worker could not return to work and suffered depression from his injuries resulting in a suicide attempt.

Construction Accident

$3,200,000

$3.2 million verdict in Queens Supreme Court for an undocumented Polish speaking construction worker who fell 12 feet during a demolition project. The worker fractured a vertebrae and herniated several discs in his spine requiring surgery. The plaintiff was unable to return back to work due to his injuries.

Motor Vehicle Accident

$1,500,000

$1.5 million verdict in Supreme Court Kings County for a woman struck by a car that jumped the curb and hit the pedestrian while standing on the sidewalk across from Prospect Park, Brooklyn.

Slip And Fall Accident

$1,900,000

$1.9 million verdict in New York Supreme Court for a bank manager who slipped and fell on a wet floor, resulting in spinal injuries. The building owner knew about a recurring leak inside the basement cafeteria but failed to correct the problem.

Construction Accident

$2,000,000

$2 million settlement in Queens Supreme Court for Polish construction worker who fell 2 stories from a bucket. The worker’s supervisor told the construction worker to ride the material bucket down to use the bathroom because it would save time. The worker fractured his pelvis in several places requiring surgery and was unable to return to work.

Medical Malpractice

$4,500,000

Defense counsel offers 11 cents to settle before trial and the jury renders a verdict of $4.5 million dollars for a medical malpractice victim and his wife. The action was commenced in New York Supreme Court for a patient who suffered massive internal bleeding during a lower back surgery when the surgeon negligently cut an artery and failed to promptly treat the condition, causing a loss of oxygen and injury to the brain. The anesthesiologist failed to properly monitor the patient’s vitals during the surgery and alert the surgeon of the drop in blood pressure.

Assault

$1,250,000

$1.25 million settlement in New York Supreme Court against building owner for negligent security that caused two women to be assaulted while leaving work. A masked man entered their elevator from a floor that was supposed to be closed off for construction. The assailant used a metal pipe to attack the two women. The two women split the settlement monies.

Construction Accident

$1,500,000

$1.5 Million settlement in New York Supreme Court for a construction worker who was struck by a piece of concrete that fell on his head and back. Workers above were chipping concrete despite knowing that people were working directly below them. The plaintiff required surgery on his neck but made a good recovery.

Medical Malpractice

$3,900,000

$3.9 million settlement in Supreme Court Kings County for a Brooklyn man who suffered a stroke shortly following an eye surgery. The patient was given medical clearance for local anesthesia but instead was placed under general anesthesia for 7 hours. The patient’s blood pressure was not well controlled resulting in a 30 minute hypertensive emergency near the end of the operation. The patient died after 7 years of living in different nursing homes.

CLIENT REVIEWS

    I did not think myself that we will win this difficult matter and become victorious, especially after being rejected by numerous other attorneys…but your professionalism Brett, dedication and determination, not to mention a huge heart, was how we prevailed

ALEKSANDER J.

    When I brought my situation to a local attorney he directed me to Brett Nomberg, and I’m so glad he did. Someone always was able to give me a status of what was going on. Your team made my wife and I realize we were dealing with a truly professional firm and at the same time, sympathetic to our needs. Great job. Excellent Customer Service.

GREG M.

    I want to thank you for all the help and support that was given to my parents by you and your colleagues. Your firm’s time, effort and dedication, is without question second to none and this led to a successful settlement

PAT R.

    We can’t thank you enough for the wonderful representation you provided and for believing in our case. It was very vindicating to have a judge and jury decide in our favor.

JANE AND TOM D.