Opinion
505279/2013
03-19-2018
Jason STARKMAN and Viviana Chiriboga, Plaintiffs, v. NEW YORK CITY TRANSIT AUTHORITY, William J. Hayes, Ivan Grbic, City of New York, New York City Police Department, John Doe I, believed to be an employee of the New York City Police Department and John Doe II, Defendants.
Firm Name: SALENGER, SACK, KIMMEL & BAVARO, LLP, Address: 180 FROEHLICH FARM BLVD, WOODBURY, NY 11797, Phone: 516-677-0100, Attorney for plaintiffs Firm Name: PRESTON LAW FIRM P.C., Address: 118A JACKSON AVE, SYOSSET, NY 11791, Phone: 516-322-3990, New York City Transit Authority, Address: 130 Livingston Street 11th Floor, Brooklyn, NY 11201, Phone: 718-694-5730, Attorneys for defendants NYC Transit & Hayes
Firm Name: SALENGER, SACK, KIMMEL & BAVARO, LLP, Address: 180 FROEHLICH FARM BLVD, WOODBURY, NY 11797, Phone: 516-677-0100, Attorney for plaintiffs
Firm Name: PRESTON LAW FIRM P.C., Address: 118A JACKSON AVE, SYOSSET, NY 11791, Phone: 516-322-3990, New York City Transit Authority, Address: 130 Livingston Street 11th Floor, Brooklyn, NY 11201, Phone: 718-694-5730, Attorneys for defendants NYC Transit & Hayes
Paul Wooten, J.
The following papers, numbered 1 to 6, were read on this motion by defendants
PAPERS/NUMBERED
Notice of Motion/ Order to Show Cause — Affidavits — Exhibits 1, 2
Answering Affidavits — Exhibits (Memo) 3, 4
Replying Affidavits (Reply Memo) 5, 6
Motions sequence numbers 4 and 6 are consolidated for disposition.
This action arises out of a four-car motor vehicle accident that occurred on November 16, 2012, on the Eastbound side of the Brooklyn-Queens Expressway (BQE) at or near its intersection with Atlantic Avenue, in Brooklyn, New York. Jason Starkman (Starkman) and Viviana Chiriboga (Chiriboga) (collectively, plaintiffs) commenced this action against the New York City Transit (NYCTA), William J. Hayes (Hayes) (together, the NYCTA defendants), Ivan Grbic (Grbic), the City of New York, New York City Police Department, John Doe I, believed to be an employee of the New York City Police Department (the City defendants), and John Doe II (all together, defendants), by filing a Summons and Verified Complaint on September 6, 2013. Before the Court is a motion by Grbic for an Order, pursuant to CPLR 3212, for summary judgment dismissing the Complaint as against him on the issue of liability (motion sequence 4) . Plaintiffs submitted opposition to the motion and the NYCTA defendants are in partial opposition. Also before the Court is a motion by the NYCTA defendants for an Order, pursuant to CPLR 3212, granting summary judgment in their favor, dismissing the Verified Complaint and any cross-claims against them (motion sequence 6). Plaintiffs are in opposition to the motion.
The Court notes that a complete search of the New York State Court Electronic Filing (NYSCEF) system reveals that Grbic's motion for summary judgment has not been uploaded to the electronic filing system, as required by the Supreme Court Kings County Court Rules governing e-filed cases. Nevertheless, Grbic did provide a physical copy of the motion papers with a valid stamp from the County Clerk's office indicating that the motion was filed with the Court. Thus, the Court will exercise its discretion and consider the motion on their merits.
BACKGROUND
Plaintiffs allege that on the date of the accident, Starkman was driving a Nissan Maxima Eastbound, in the left lane of the BQE. Starkman's Maxima was directly in front of a Mercedes-Benz vehicle, allegedly operated by John Doe II. John Doe II's vehicle was directly in front of a Honda Pilot operated by Grbic; and Grbic's Honda Pilot was in front of the NYCTA bus operated by Hayes. Plaintiffs allege that Starkman's Maxima slowed down and came to a complete stop as there, allegedly, was a stopped police vehicle directly in front of him. Plaintiffs aver that John Doe II's Mercedes came to an abrupt stop, at which point, John Doe II's vehicle was rear-ended by Grbic's Honda Pilot. The NYCTA bus, operated by Hayes, then rear-ended Grbic's Honda Pilot, causing it to rear-end John Doe II's Mercedes, a second time. Plaintiffs allege that the force of the second impact between Grbic's Honda Pilot with John Doe II's Mercedes propelled John Doe II's Mercedes forward, causing it to rear-end plaintiffs' Maxima. After the accident, plaintiffs allege that John Doe II fled the scene. As a result of the accident, Starkman alleges that he suffered serious personal injuries. Chiriboga, Starkman's wife, alleges a cause of action for loss of services.
Grbic also interposed a separate action captioned Ivan Grbic v. New York City Transit Authority and Williams Hayes , Index No. 502302/2013.
In support of his motion for summary judgment on liability, Grbic submits, inter alia , a copy of the pleadings; a copy of his Examination Before Trial (EBT) transcript dated January 7, 2015, a copy of Starkman's EBT transcript dated January 7, 2015, and a copy of Hayes's EBT transcript, dated October 21, 2016. Grbic argues that he is entitled to summary judgment on the issue of liability because his vehicle never struck plaintiffs' vehicle; thus, his conduct is not the proximate cause of plaintiffs' injuries.
In opposition to Grbic's summary judgment motion, plaintiffs submit, inter alia , a copy of Starkman's, Hayes' and Grbic's EBT transcripts. Plaintiffs argue that Grbic's motion should be denied since Grbic's account of how the accident happened differs from the accounts testified to by Hayes and Starkman. Specifically, plaintiffs argue that Hayes' testimony establishes that Grbic's vehicle was never at a complete stop when it was rear-ended by the NYCTA bus operated by Hayes. Moreover, plaintiffs contend that Gbric's testimony conflicts with Hayes' testimony regarding whether Grbic made contact with any other vehicle prior to his vehicle being rear-ended by Hayes' bus. Thus, plaintiffs argue that the conflicting accounts of how the accident happened create a triable issue of fact for a jury to determine.
SUMMARY JUDGMENT STANDARD
Summary judgment is a drastic remedy that should be granted only if no triable issues of fact exist and the movant is entitled to judgment as a matter of law (see Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986] ; Andre v. Pomeroy , 35 NY2d 361, 364 [1974] ; Winegrad v. NY Univ. Medical Cntr. , 64 NY2d 851, 853 [1985] ). The party moving for summary judgment must make a prima facie case showing of entitlement to judgment as a matter of law, tendering sufficient evidence in admissible form demonstrating the absence of material issues of fact (see Alvarez , 68 NY2d at 324 ; CPLR 3212[b] ). A failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see Smalls v. AJI Indus., Inc. , 10 NY3d 733, 735 [2008] ; Qlisanr, LLC v. Hollis Park Manor Nursing Home, Inc. , 51 AD3d 651, 652 [2d Dept 2008] ; Greenberg v. Manlon Realty , 43 AD2d 968, 969 [2d Dept 1974] ). Once a prima facie showing has been made, however, "the burden shifts to the nonmoving party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact that require a trial for resolution" ( Giuffrida v. Citibank Corp. , 100 NY2d 72, 81 [2003] ; Zuckerman v. City of NY , 49 NY2d 557, 562 [1980] ).
When deciding a summary judgment motion, the Court's role is solely to determine if any triable issues exist, not to determine the merits of any such issues (see Sillman v. Twentieth Century-Fox Film Corp. , 3 NY2d 395, 404 [1957] ). The Court views the evidence in the light most favorable to the nonmoving party, and gives the nonmoving party the benefit of all reasonable inferences that can be drawn from the evidence (see Negri v. Stop & Shop, Inc. , 65 NY2d 625, 626 [1985] ; Boyd v. Rome Realty Leasing Ltd. Partnership , 21 AD3d 920, 921 [2d Dept 2005] ; Marine Midland Bank, N.A. v. Dino & Artie's Automatic Transmission Co. , 168 AD2d 610 [2d Dept 1990] ). If there is any doubt as to the existence of a triable fact, the motion for summary judgment must be denied ( Rotuba Extruders v. Ceppos , 46 NY2d 223, 231 [1978] ; CPLR 3212[b] ).
DISCUSSION
In New York, " ‘[e]vidence of negligence is not enough by itself to establish liability,’ for it also must be prove[n] that the negligence was a proximate, or legal, cause of the event that produced the harm sustained by the plaintiff" ( Hain v. Jamison , 28 NY3d 524, 528 [2016] ). "A defendant's negligence qualifies as a proximate cause where it is ‘a substantial cause of the events which produced the injury’ " ( id. at 529 quoting Mazella v. Beals , 27 NY3d 694, 706 [2016] ). Generally, "the question of whether a particular act of negligence is a substantial cause of the plaintiff's injuries is one to be made by the factfinder, as such a determination turns upon questions of foreseeability and " ‘what is foreseeable and what is normal may be the subject of varying inferences’ " ( Hain , 28 NY3d at 529 ). However, a Court can determine the issue of proximate cause, as a matter of law, where "only one conclusion may be drawn from the established facts" ( Hain , 28 NY3d at 529 ; Derdiarian, 51 NY2d at 315 ).
A movant seeking summary judgment is required to make a prima facie showing that he or she is free from comparative fault (see Jones , 106 AD3d at 1052 ; Berish v. Vasquez , 121 AD3d 634 [2d Dept 2014] ; Fried v. Misser , 115 AD3d 901 [2d Dept 2014] ). "The mere fact that other persons share some responsibility for plaintiff's harm does not absolve defendant from liability because there may be more than one proximate cause of an injury" ( Hain , 28 NY3d at 529 ; Mazella , 27 NY3d at 706 ; Jones v. Vialva-Duke , 106 AD3d 1052, 1052 [2d Dept 2013] quoting Cox v. Nunez , 23 AD3d 427, 428 [2d Dept 2005] ). Additionally, "[w]here the acts of a third person intervene between the defendant's conduct and the plaintiff's injury, the causal connection is not automatically severed" ( Derdiarian v. Felix Contract Corp. , 51 NY2d 308, 315 [1980] ). In such a case, "liability turns upon whether the intervening act is a normal or foreseeable consequence of the situation created by the defendant's negligence" ( Hain , 28 NY3d at 529, Derdiarian, 51 NY2d at 315 ; see also Calderon v. Harrel , 237 AD2d 318, 318-19 [2d Dept 1997] ).
"A driver of a vehicle approaching another vehicle from the rear is required to maintain a reasonable safe distance and rate of speed under the prevailing conditions to avoid colliding with the other vehicle" (see Hearn v. Manzolillo, 103 AD3d 689, 690 [2d Dept 2013] ; Fajardo v. City of New York , 95 AD3d 820, 820-821 [2d Dept 2012], quoting Ortiz v. Hub Truck Rental Corp. , 82 Ad3d 725, 726 [2d Dept 2011] ; see also Vehicle and Traffic Law 1129[a] ). Moreover, "a rear end-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, requiring that operator to come forward with evidence of a non-negligence explanation for the collision in order to rebut the inference of negligence" (see Bowen v. Farrell , 140 AD3d 1001,1002 [2d Dept 2016] ).
A. Grbic's motion for summary judgment on liability (Motion Sequence 4)
Upon considering the foregoing papers, the Court finds that Grbic's motion for summary judgment on the issue of liability must be granted. Specifically, the Court finds that any purported negligence by Grbic did not proximately cause plaintiffs' injuries as Starkman's and Hayes' EBT testimonies, both of which Grbic proffers and relies upon, establish that John Doe II's Mercedes never struck plaintiffs' Maxima after getting rear-ended by Grbic's vehicle (see Niosi v. Jones, 133 AD3d 578, 579 [2d Dept 2015] ; Fonteboa v. Nugget Cab Corp. , 123 AD3d 759, 760 [2d Dept 2014] ; Hyeon Hee Park v. Hi Taek Kim , 37 AD3d 416, 423 [2d Dept 2007] ; Good v. Atkins , 17 AD3d 315, 316 [2d Dept 2005] ; Lejkowski v. Siediarz , 2 AD3d 791, 791 [2d Dept 2003] ).
This legal concept is analyzed by the Appellate Division, Second Department in Good v. Atkins (infra ). In Good , plaintiffs Regina S. and Edward J. Good's vehicle was involved in a multiple-vehicle, chain-reaction collision ( Good , 17 AD3d at 315 ). Defendant Atkins, Jr., alleged that as he switched lanes, the vehicles in front of him in the new lane stopped, causing his vehicle to strike the vehicle which was immediately in front of him in the new lane. Behind Atkins was a Nissan Pathfinder, which stopped without striking Atkins' vehicle, and behind the Pathfinder was the vehicle containing the plaintiffs, which stopped without striking the Pathfinder (id. ). Defendant LaRosa, who had been driving behind an SUV, alleged that the driver of the SUV suddenly applied his brakes and swerved out of the lane (id. ). The SUV had been trailing the plaintiffs' vehicle, and soon after the SUV swerved out of the lane, LaRosa struck the rear of the plaintiffs' vehicle, causing the plaintiffs' vehicle to strike the rear of the Pathfinder (id. ). Atkins alleged that the collision between the plaintiffs' vehicle and the Pathfinder, in turn, caused the Pathfinder to strike the rear of his vehicle (id. ).
The Appellate Division, Second Department opined that Atkins Jr. was entitled to summary judgment, as matter of law since plaintiffs' vehicle was able to stop without hitting the Pathfinder, any purported negligence on the part of Atkins was not a proximate cause of the collision between the plaintiffs' vehicle and LaRosa's vehicle ( id. at 316 ).
Here, similar to Good , Hayes testified that "after the [Honda] Pilot tapped him [the Mercedes Benz] a second time, for no apparent reason, he [the Mercedes-Benz] accelerated -- [h]e took off, and slammed into the back of the car in front of him, which stunned me -- I didn't know why" (see Notice of Motion [MS 4], exhibit H, Hayes' Tr at 19). Hayes testified that John Doe II's Mercedes-Benz accelerated into the car in front of it after the impact with Grbic's Honda Pilot (id. at 19-20). Hayes stated that John Doe II's Mercedes vehicle did not hit the car in front as a result of the impact from the Pilot (id. at 19-20). When asked "did you actually witness two impacts to the Pilot? Hayes responded as follows:
A: Did I see the Pilot hit the Mercedes when the Mercedes slammed on the brakes? Yes. Did I see myself hit the Pilot? Yes. Did I see the Pilot re-bump the Mercedes? Yes. Did I see the Mercedes take off and hit the Nissan [plaintiff's vehicle], yes" (id. at 23).
Hayes also testified that prior to the bus rear-ending Grbic's car, he observed the Pilot's brake light were on (id. at 25). Most importantly, Hayes testified that after the second collision between Grbic's vehicle and the Mercedes Benz, neither vehicle made contact with plaintiffs' vehicle. Hayes testified as follows:
"Q: what about from the second impact; this is you hitting the Pilot, the Pilot hitting the Mercedes, did the Mercedes then hit the Nissan [plaintiffs' vehicle] or was that Mercedes-Maxima collision as a result of the Mercedes trying to leave the scene of the accident?
A: It was a result of the action of the driver of the Mercedes that caused the impact between the Mercedes and the Nissan. Whether he was trying to flee initially, I could not tell you. Did he eventually flee, yes" (id. at 50).
Similarly, Starkman also testified that prior to his vehicle being rear-ended, he heard screeching of tires and a couple booms (see id. , exhibit G, Starkman's Tr at 35). In particular, he stated that he heard three "booms", then approximately five seconds later, his vehicle was rear-ended (see id. at 36). Thus, the testimonies establish that neither Grbic's Honda Pilot nor John Doe II's Mercedes struck plaintiffs' vehicle after John Doe II's Mercedes was rear-ended by Grbic's Honda Pilot. Therefore, consistent with the Appellate Division, Second Department's ruling in Good , Grbic's conduct cannot be said to be the proximate cause of plaintiffs' injuries.
In opposition to Grbic's prima facie case, plaintiffs argues that Hayes' testimony establishes that Grbic violated VTL § 1128 inasmuch as his vehicle rear-ended John Doe II's vehicle, which is negligence per-se. The Court finds this argument insufficient to raise a triable issue of fact on the issue of proximate cause. Even if, assuming arguendo , Grbic did in fact violate VTL § 1128, the bright line rule in New York is that "evidence of negligence is not enough by itself to establish liability,' for it also must be proved that the negligence was a proximate, or legal, cause of the event that produced the harm sustained by the plaintiff" ( Hain , 28 NY3d at 528 ). Here, plaintiffs fail to present evidence that Grbic's vehicle proximately caused the collision between their vehicle and John Doe II's Mercedes, while John Doe II allegedly fled the accident scene.
The Court also finds unpersuasive plaintiffs' and Hayes' arguments that Grbic's motion should be denied since Grbic's testimony regarding whether his vehicle was at a full stop, and his testimony regarding whether his vehicle made contact with any other vehicles prior to being rear-ended by the NYCTA defendants' bus conflicts with Hayes' EBT testimony. Starkman's own testimony establishes that he heard three booms, prior to his vehicle being rear-ended (see Notice of Motion [MS 4], Starkman's Tr at 35). Hayes' testimony established that neither Grbic's vehicle nor John Doe II's vehicle made contact with plaintiffs' vehicle. Thus, plaintiffs' arguments regarding whether Grbic's vehicle was at a full stop prior to being rear-ended by Hayes' bus, attempt to create a feign issue of fact with respect to Grbic's liability in causing plaintiffs' injuries. Whether Grbic's vehicle made contact with other vehicles prior to and after making contact with the NYCTA defendants' vehicle at best may create an issue of fact with respect to any liability between Grbic, the NYCTA defendants and John Doe II. Therefore, Grbic's motion for summary judgment dismissing plaintiff's claims on the issue of liability is granted.
B. The NYCTA defendants' motion for summary judgment (Motion Sequence 6)
In support of their summary judgment motion on liability, the NYCTA defendants argue that the collision between plaintiffs' Maxima and John Doe II's Mercedes was a separate collision in which the NYCTA defendants had no involvement. The NYCTA defendants also argue that John Doe II's action of fleeing the scene of the accident, after his Mercedes had been rear-ended by Grbic's Honda Pilot, constitutes an independent intervening act which does not follow the original negligence.
The Court finds that the NYCTA defendants' motion for summary judgment on the issue of liability must also be granted. This is so, because the testimony before the Court establishes that Hayes' conduct did not proximately cause plaintiffs' injuries since neither Grbic's vehicle nor John Doe II's Mercedes struck plaintiffs' vehicle, after Hayes rear-ended Grbic's Honda Pilot ( Niosi , 133 AD3d at 579 [summary judgment granted where "the operator of a vehicle that was propelled into another vehicle by a following vehicle presents evidence that he or she was able to safely bring his or her vehicle to a stop behind the lead vehicle before being struck in the rear by a following vehicle, that operator has established his or her prima facie entitlement to judgment as a matter of law"] ). Hayes testified that after rear-ending Grbic's vehicle, causing same to rear-end John Doe II's vehicle, both Grbic and John Doe II's vehicle safely stopped, without colliding or making contact with plaintiffs' vehicle. Thus, any negligent act by Hayes was not the proximate cause of plaintiffs' injuries.
Additionally, the Court agrees with the NYCTA defendants' contention that John Doe II actions after his vehicle was rear-ended by Grbic's Honda Pilot, namely, rear-ending plaintiffs' Maxima while allegedly trying to flee the scene of the accident was an independent intervening act that severed the chain of proximate cause between the contacts between the NYCTA defendants bus, Grbic's Honda Pilot, and John Doe's Mercedes (see Mahmood v. Pinto , 17 AD3d 641, 641 [2d Dept 2005] ).
In Mahmood , a vehicle operated by Tierney skidded across the center and left lanes and finally struck the center divider on the expressway (id. ). As a result of the movements of the Tierney vehicle, co-defendant Louis Pinto, who was driving his motor vehicle a distance behind the Tierney vehicle, applied his brakes (id. ). Defendant Robert Service, Jr., who was driving a van owned by the defendant Coca—Cola Bottling Company of New York, attempted to avoid hitting the Pinto vehicle by moving to the right. Service's vehicle struck the Pinto vehicle and a vehicle operated by Adeeba Mahmood (id. ). Mahmood pulled her car over to the raised shoulder of the expressway, exited her vehicle, when she was struck and killed by a motor vehicle operated by the defendant Sun Hui Monroe (id. ).
The Mahmood Court opined that even if Tierney, Pinto, and Robert Service, Jr. were negligent in either causing the accidents involving their respective motor vehicles or in leaving their vehicles on the roadway or shoulder, it would not be reasonable to infer that their conduct was the proximate cause of the collision between Monroe's vehicle and the decedent (see id., see also Jackson v. Noel , 299 AD2d 456 [2d Dept 2002] ). The Mahmood Court explained that was Monroe's apparent loss of control of the car which she was operating was a superseding event which severed whatever causal connection there might have been between the earlier incidents and the alleged negligence of the moving defendants (see Mahmood , 17 AD3d at 641 ).
Here, similar to Mahmood , this Court finds that notwithstanding any negligent conduct by Grbic and Hayes, it would not be reasonable to infer that their conduct proximately caused the collision between John Doe II's Mercedes and plaintiffs' Maxima as John Doe II attempted to flee the scene of the accident. Thus, the causal nexus between the first three collisions was severed by John Doe II's conduct after the fact.
The Court also finds that plaintiffs fail to raise a triable issue of fact as plaintiffs' arguments in opposition to the NYCTA defendants' motion are essentially the same arguments made in opposition to Grbic's motion for summary judgment on the issue of liability. Therefore, the NYCTA defendants' motion for summary judgment for an Order dismissing plaintiffs' Complaint as asserted against them is granted. In light of the Court's ruling above, any cross-claims asserted by Grbic against the NYCTA defendants, and the NYCTA defendants' cross-claims against Grbic for damages resulting from plaintiffs' injuries are dismissed.
CONCLUSION
Accordingly is it hereby,
ORDERED that defendant Grbic's motion for summary judgment dismissing the Complaint and all cross-claims against him on the issue of liability [MS 4] is granted, and the Complaint and all cross-claims against him are hereby dismissed; and it is further,
ORDERED that the NYCTA defendants' motion for summary judgment for an Order dismissing the Complaint on the issue liability dismissing the Complaint and all cross-claims as against them [MS 6], is granted, and the Complaint and all cross-claims against them are dismissed; and it is further,
ORDERED that counsel for the NYCTA defendants is directed to serve a copy of this Order with Notice of Entry upon plaintiffs and the County Clerk who shall enter judgment accordingly.
This constitutes the Decision and Order of the Court.