Ortega v Ners 2015 NY Slp Op 30987(U) May 4, 2015 Supreme Court, Bronx County Docket Number: 303825/2012 Judge: Lucndo Suarez Cases posted wth a "30000" dentfer,.e., 2013 NY Slp Op 30001(U), are republshed from varous state and local government webstes. These nclude the New York State Unfed Court Systems E-Courts Servce, and the Bronx County Clerks offce. Ths opnon s uncorrected and not selected for offcal publcaton.
[* 1] FLED May 08 2015 Bronx County Clerk } s/rreme court OF THE STATE of NEW YORK.. / 14 COUNTY OF BRONX:.A.S. PART 19 "..,,..,,,, ----------------------------------------------------,---------------X FRANCSCO ORTEGA and ECHELON ~AB CORP., - aganst - Plantffs, DECSON AND ORDER ndex No. 303825/2012 FRANKLN NERS and J&M PLUMBNG CORP., Defendants. -----------------------------------------------------~--------------X PRESENT: Hon. Lucndo Suarez Upon the notce of moton dated off ebruary 23, 2015 of plantff Francsco Ortega and the affrmaton, affdavt, and exhbts submtted n support thereof defendants affrmaton n opposton dated March 9, 2015 and the exhbts submtted therewth the affrmaton n support dated March 27, 2015 of plantff Echelon Cab Corp. the reply affrmaton dated Aprl 21, 2015 of plantff Francsco Ortega and due delberaton the court fnds: n ths acton arsng out ofa November 2, 2011 motor vehcle accdent n New York County, plantff Francsco Ortega moves pursuant t~ CPLR 3212 for summary judgment on the ssue of defendants lablty for causng ths rear end collson. Ortegas earler moton for summary judgment on lablty was dened wth leave to renew upon the completon of all dscovery. Submtted on the nstant moton are the pleadngs, a copy of [plantffs pror moton, plantffs affdavt, and the deposton transcrpt for defendant drver Frankln Ners ("Ners"). Plantff averred that he was stopped n the parkng lane on Broadway near West 18th Street when hs vehcle was struck n the rear. Ners!testfed that there were three lanes for movng traffc and a parkng lane on both sdes of a center medan on Broadway. He was travelng n the southbound left lane for twenty or thrty seconds at twenty mles per hour pror to the accdent. He was less than
[* 2] FLED May Q8 2015 Bronx County Clerk ten feet away from the ntersecton when he saw a black jeep stop across the left and center southbound lanes and perpendcular to Ners lane of traffc at West l l 8th Street. The jeep was stopped for three seconds. Fve seconds passed from the tme Ners frst saw the jeep to the tme he moved hs vehcle from the left lane to the rght lane. There W:as no vehcle to hs mmedate rght. Ners also looked n hs sdevew mrror before changng lanes, and he saw no traffc behnd hm. As he moved to the rght lane, Ners"lost control" of hs van and struqk the rear left sde of plantffs vehcle whch was parked next to the curb. Ners had appled hs brakes upon seeng the jeep, and hs foot was on the brake pedal for ten seconds before the mpact. Generally, a drver travelng behnd ab other vehcle has a duty to mantan a safe dstance behnd the front vehcle, whether t s movng or stbpped, to avod a rear end collson n the event the front vehcle slows down or stops, even suddenl)r, see New York Vehcle and Traffc Law l 129(a), and takng nto account the weather and road condtons. See Francsco v. Schoepfer, 30 A.D.3d 275, 817 N.Y.S.2d 52 (1st Dept 2006). A rear-end collson wth a stopped or stoppng vehcle consttutes a prma face case of neglgence on the part of the operator of the rear vehcle and mposes upon the drver of the rear vehcle to provde a non~neglgent explanaton for the accdent. See Cabrera v. Rodrguez, 72 A.D.3d 553, 900N.Y.S.2d29 (lstdept 2010) Woodleyv. Ramrez, 25 A.D.3d451, 810 N.Y.S.2d 125 (1st Dept 2006). Plantff has demonstrated hs enttlement to partal summary judgment. Defendants oppose the moton and argue that Ners was not at fault based upon the emergency doctrne. "The emergency doctrne recog~zes that when an actor s faced wth a sudden and unexpected crcumstance whch leaves lttle m no tme for thought, delberaton, or consderaton, or causes the actor to be reasonably so dsturbed that the actor must make a speedy decson wthout weghng alternatve courses of conduct, the actor may not be neglgent f the actons taken are reasonable and prudent n the emergency." Rvera v. New York Cty Transt Authorty, 77 N. Y.2d 322, 2
[* 3] FLED May 08 2015 Bronx County Clerk 327, 569 N.E.2d 432, 434, 567 N.Y.S.2d 629, 631 (1991). The doctrne does not apply to routne rear end accdents, see Johnson v. Phllps, 261A.D.2d269, 690 N.Y.S.2d 545 (1st Dept 1999), or where the party caused or contrbuted to the emergency. See Coullard v. Shaw Envtl. & nfrastructure Eng g of N. Y., P.C., 125 A.D.3d 509, 4 N.Y.S.3d ~76 (1st Dept 2015). The exstence of an emergency and the reasonableness of a partys response ordnarly present questons of fact, but n approprate crcums:tances, the ssues may be determnec as a matter oflaw. Alamo v. McDanel, 44 A.D.3d 149,! 152, 841N.Y.S.2d477, 480 (1st Dept 2007). Here, defendants faled to rase a tra~le ssue of fact based upon the emergency doctrne. See l Rentera v. Smakov, 109 A.D.3d 749, 972 N.Y.S.2d 15 (1st Dept 2013). Ners saw the jeep fve seconds before he reacted and wthn that tme, he looked n hs sdevew mrror and appled the brakes. See Dayong Lu v. Peng Cheng, 82 A.D.3d 4.05, 918 N.Y.S.2d 38 (1st Dept 2011). t s also unclear how Ners lost control of hs vehcle whch was travelng at ffteen mles per hour at the tme of the mpact. He dd not experence any mechanc~! problems before the accdent, the vehcle dd not come nto contact wth the jeep, and the vehcle dd 1not come nto contact wth a defect n the roadway. See Mkorsk v. Cty of New York, 3 A.D.3d 459, 770 N.Y.S.2d 860 (1st Dept 2004). Defendants argument wth regard to plf1ntff s contrbutory neglgence also fals. The fact that plantff was parked next to a fre hydrant merely furnshed the condton for the happenng of the accdent. See Sheehan v. New York, 40 N.Y.2~ 496, 354 N.E.2d 832, 387 N.Y.S.2d 92 (1976). n any event, 34 RCNY 4-08( e )(2) provdes that nc vehcle may stop, stand or park wthn ffteen feet of a fre hydrant between sunrse and sunset unless ~he drver remans n the drvers seat to move the vehcle when necessary. Ners admtted that plantff~as seated n the drvers seat at the moment of mpact. Accordngly, t s ORDERED, that the moton of plantff Francsco Ortega for partal summary judgment on the ssue of defendants lablty for causng the collson s granted and t s further 3
[* 4] FLED May 18 2015 Bronx County Clerk ORDERED, that the clerk of the court shall enter judgment n favor of plantff Francsco Ortega on the ssue of defendants lablty for causng the collson and t s further ORDERED, that plantff shall have the burden at the tme of tral to establsh that he suffered a "serous njury" wthn the meanng of the nsurance Law. ORDERED, that t Ths consttutes the decson and order of the court. Dated: May 4, 2015 4