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