2023 WL 3236030

Supreme Court, Appellate Division, First Department, New York.

Alwin MARTINEZ, Plaintiff–Respondent,

v.

ITF LLC, et al., Defendants,

Yesenia Camacho, Defendant–Respondent,

J.B. Hunt Transport, Inc., Defendant–Appellant.

Yesenia Camacho, Plaintiff–Respondent,

v.

ITF LLC, et al., Defendants,

J.B. Hunt Transport, Inc., Defendant–Appellant,

Alwin Martinez, Defendant–Respondent.

185-, 186-, 187

Index Nos. 20977/18E, 25135/18E

Case Nos. 2022-01483, 2022-01494, 2022-05075

Entered May 4, 2023

Synopsis

Background: Driver of automobile, which became disabled on highway, and motorist, who drove to scene to help driver, brought personal-injury action against operator of tractor–trailer and lessee of trailer, alleging that operator’s negligence caused accident in which tractor–trailer crashed into back of motorist’s stopped automobile. The Supreme Court, Bronx County, Ben R. Barbato, J., entered order granting plaintiffs’ motions for summary judgment on issue of liability and dismissing lessee’s affirmative defense of comparative negligence on part of driver and later entered order denying lessee’s motion to renew. Lessee appealed.

Holdings: The Supreme Court, Appellate Division, held that:

^[1] operator and lessee were liable for driver’s and motorist’s injuries;

^[2] emergency doctrine did not apply;

^[3] driver was not negligent;

^[4] call that driver made to motorist for assistance did not constitute intervening act that broke chain of causation; and

^[5] new evidence did not warrant allowing lessee to renew its opposition to motions for summary judgment.

Affirmed.

[1] Automobiles Care required of following vehicle  

Operator of tractor–trailer and lessee of trailer were liable for personal injuries that driver of automobile, which became disabled on highway, and motorist, who drove to scene to help driver, sustained in accident in which tractor–trailer crashed into back of motorist’s automobile, since tractor–trailer rear-ended motorist’s stopped automobile.  

[2] Automobiles Rear-end collision  

Rear-end collision with a stopped vehicle establishes a prima facie case of negligence on the part of the driver of the rear vehicle.  

[3] Automobiles Acts in emergencies

Emergency doctrine did not apply and thus did not preclude imposing liability on operator of tractor–trailer and lessee of trailer regarding collision in which tractor–trailer crashed into back of stopped automobile of motorist, who drove to scene to help driver of automobile that became disabled on highway, and allegedly caused injuries to motorist and driver; operator was driving over speed limit while talking on his cellphone just before collision, and operator had unobstructed view of highway with no other traffic in the area and saw motorist’s automobile for at least ten seconds before impact, yet he made no attempt to stop, move to the left, or blow his horn.  

[4] Automobiles Vehicles stopped for repairs  

Driver of automobile that became disabled on highway was not negligent, precluding affirmative defense of comparative negligence regarding driver’s personal-injury action that was brought against lessee of trailer and that arose from collision in which tractor–trailer crashed into back of stopped automobile of motorist, who drove to scene to help driver, where driver parked his disabled automobile completely on right shoulder of highway, outside flow of traffic.    

[5] Automobiles Proximate cause of injury  

Call that driver of automobile that became disabled on highway made to motorist for assistance did not constitute intervening act that broke chain of causation between negligence of operator of tractor–trailer in crashing into rear of motorist’s stopped automobile and injuries sustained by driver and motorist, and thus call did not preclude imposing liability on lessee of trailer, although motorist parked her automobile partially in rightmost lane of highway; fact that motorist could share some responsibility for injuries sustained by herself and driver did not absolve lessee from liability, as there could be more than one proximate cause of injuries.

[6] Summary Judgment Renewed or successive motions  

New evidence offered by lessee of trailer did not warrant allowing lessee to renew its opposition to motions for summary judgment as to liability that driver of automobile, which became disabled on highway, and motorist, who drove to scene to help driver, filed in their personal-injury action arising from accident in which tractor–trailer crashed into back of motorist’s stopped automobile; new evidence would not have changed trial court’s determination even had it been offered on original motions, and at most, new evidence was relevant to credibility of expert for driver and motorist, which was collateral issue.  

Attorneys and Law Firms

Coffey Modica O’Meara Capowski LLP, White Plains (John F. Watkins of counsel), for appellant.

Pollack, Pollack, Isaac & DeCicco, LLP, New York (Brian J. Isaac of counsel), for Alwin Martinez, respondent.

Avanzino & Moreno, P.C., Brooklyn (Stuart Long of counsel), for Yesenia Camacho, respondent.

Manzanet–Daniels, J.P., Singh, Moulton, Rodriguez, Pitt–Burke, JJ.

Opinion

*1 Order, Supreme Court, Bronx County (Ben R. Barbato, J.), entered on or about March 28, 2022, which, to the extent appealed from as limited by the briefs, granted plaintiffs’ motions for summary judgment on liability and dismissed defendant J.B. Hunt Transport Inc.’s affirmative defense alleging comparative negligence by plaintiff Alwin Martinez, unanimously affirmed, without costs. Order, same court and Justice, entered on or about November 2, 2022, which denied J.B. Hunt’s motion to renew, unanimously affirmed, without costs.

Plaintiffs were injured in an incident in which Martinez’s vehicle became disabled on the highway and plaintiff Yesenia Camacho drove to the scene to help him. Camacho testified that although she first parked behind Martinez on the shoulder, she eventually moved her vehicle so that it extended partially into the right-hand lane of the highway so that she could help jump start Martinez’s vehicle. While plaintiffs were waiting for Martinez’ vehicle to charge, a tractor–trailer driven by defendant Furdat Yuldashev crashed into the back of Camacho’s vehicle, injuring both plaintiffs. Defendant J.B. Hunt Transport, Inc. was the lessee of the trailer.

^{[1] [2]}Plaintiffs established entitlement to summary judgment on liability, as a rear-end collision with a stopped vehicle establishes a prima facie case of negligence on the part of the driver of the rear vehicle (Reyes v. Gropper, 212 A.D.3d 565, 565, 183 N.Y.S.3d 369 [1st Dept. 2023]). In opposition, defendants failed to provide an adequate nonnegligent explanation for the accident, as no party disputes that Yuldashev’s tractor–trailer rear-ended Camacho’s stopped vehicle (see id.).

^[3]Furthermore, the emergency doctrine is inapplicable, since Yuldashev himself created the emergency (see Vanderhall v. MTA Bus Co., 160 A.D.3d 542, 542–543, 74 N.Y.S.3d 548 [1st Dept. 2018]; Johnson v. Phillips, 261 A.D.2d 269, 271, 690 N.Y.S.2d 545 [1st Dept. 1999]). As the evidence in the record makes clear, just before the collision, Yuldashev was driving over the speed limit while talking on his cellphone. In addition, the dash cam video showed he had an unobstructed view of the roadway with no other traffic in the area and saw Camacho’s vehicle for at least 10 seconds before the impact, yet he made no attempt to stop, move to the left, or blow his horn (see Fernandez v. Ortiz, 183 A.D.3d 443, 444, 121 N.Y.S.3d 867 [1st Dept. 2020]; Acevedo v. Akhtar, 204 A.D.3d 596, 597, 165 N.Y.S.3d 314 [1st Dept. 2002]).

^{[4] [5]}Supreme Court correctly dismissed J.B. Hunt’s affirmative defense with respect to Martinez’s comparative negligence, since the evidence shows that he parked his disabled vehicle completely on the right shoulder of the roadway, outside the flow of traffic. Furthermore, we reject J.B. Hunt’s argument that Martinez’s call to Camacho for assistance constituted an intervening act that broke the chain of causation. Although the record shows that Camacho parked her vehicle partially in the rightmost lane of the highway, that Camacho may share some responsibility for plaintiffs’ injuries does not absolve J.B. Hunt from liability, as there may be more than one proximate cause of an injury (see Hain v. Jamison, 28 N.Y.3d 524, 530, 46 N.Y.S.3d 502, 68 N.E.3d 1233 [2016]).

*2 ^[6]Finally, Supreme Court properly denied J.B. Hunt’s motion to renew. The new evidence offered on the motion would not have changed the court’s determination even had it been offered on the original motion. At most, the new evidence was relevant to the credibility of plaintiff’s expert, which is a collateral issue (see Crooms v. Sauer Bros. Inc., 48 A.D.3d 380, 381–382, 853 N.Y.S.2d 29 [1st Dept. 2008]).

We have considered J.B. Hunt’s remaining arguments and find them unavailing.

All Citations

— N.Y.S.3d —-, 2023 WL 3236030, 2023 N.Y. Slip Op. 02385

© 2023 Thomson Reuters. No claim to original U.S. Government Works.  

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2023 WL 3328668

Supreme Court, Appellate Division, Second Department, New York.

Louis DOWD, appellant,

v.

KHARIEH BROS., INC., etc., et al., respondents.

2021–05388

Index No. 519857/18

Argued—March 23, 2023

May 10, 2023

Synopsis

Background: Motorist brought action against driver of moving vehicle, owner of moving vehicle, and lessee of moving vehicle, for personal injuries allegedly sustained when attempting to get into the driver’s seat of his parked vehicle when the door was struck by the moving vehicle. The Supreme Court, Kings County, Carolyn E. Wade, J., granted summary judgment in favor of driver, owner, and lessee. Motorist appealed.

Holdings: The Supreme Court, Appellate Division, held that:

^[1] motorist was sole proximate cause of accident, and

^[2] owner of leased vehicle was not liable for personal injuries resulting from use of that vehicle.

Affirmed.

[1] Summary Judgment Negligence in general  

A defendant moving for summary judgment in a negligence action has the burden of establishing, prima facie, that he or she was not at fault in the happening of the subject accident.  

[2] Negligence Possibility of multiple causes

There can be more than one proximate cause of an accident.  

[3] Negligence Proximate Cause  

Generally, it is for the trier of fact to determine the issue of proximate cause.     

[4]Negligence Proximate Cause  

The issue of proximate cause may be decided as a matter of law where only one conclusion may be drawn from the established facts.    

[5] Automobiles Vehicles at rest or unattended  

Motorist was sole proximate cause of accident in which moving vehicle struck the door of his vehicle when he was attempting to get into the driver’s seat of his parked vehicle; motorist violated the Vehicle and Traffic Law by opening the door on the side of his parked vehicle adjacent to moving traffic when it was not reasonably safe to do so, and was negligent in failing to see what, by the reasonable use of his senses, he should have seen. N.Y. Vehicle and Traffic Law § 1214.

[6] Automobiles Borrower or hirer  

Owner of leased vehicle was not liable for personal injuries resulting from use of that vehicle, where owner was engaged in business of leasing motor vehicles, subject accident occurred during period of lease, and there was no allegation that negligent maintenance contributed to accident. 49 U.S.C.A. § 30106(a).  

Attorneys and Law Firms

Hassin Law Group (Sim & DePaola, LLP, Bayside, N.Y. [Sang J. Sim], of counsel), for appellant.

Newman Law Associates, PLLC, New York, N.Y. (Jon E. Newman and Gregory P. Bakos of counsel), for respondents.

FRANCESCA E. CONNOLLY, J.P., JOSEPH J. MALTESE, JOSEPH A. ZAYAS, JANICE A. TAYLOR, JJ.

DECISION & ORDER

*1 In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Carolyn E. Wade, J.), dated June 23, 2021. The order granted the defendants’ motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

In March 2017, the plaintiff allegedly was injured while attempting to get into the driver’s seat of his parked vehicle on Wythe Avenue in Brooklyn. The subject block of Wythe Avenue is a one-way street, with one lane for travel and one lane on each side of the street for parking. The accident occurred when the plaintiff opened the front driver’s side door of his parked vehicle, and the door was struck by a box truck that was driving past the plaintiff’s vehicle. The box truck was operated by the defendant Sean McNay, owned by the defendant Kharieh Bros., Inc. (hereinafter Kharieh Bros.), and allegedly leased to the defendant CBS Corporation (hereinafter CBS).

The plaintiff commenced this action against the defendants to recover damages for personal injuries, alleging that the defendants were negligent in, among other things, their ownership, maintenance, and operation of the box truck. The defendants moved for summary judgment dismissing the complaint. By order dated June 23, 2021, the Supreme Court granted the motion. The plaintiff appeals.

^{[1] [2] [3] [4]}“A defendant moving for summary judgment in a negligence action has the burden of establishing, prima facie, that he or she was not at fault in the happening of the subject accident” (Boulos v. Lerner–Harrington, 124 A.D.3d 709, 709, 2 N.Y.S.3d 526; see McPhaul–Guerrier v. Leppla, 201 A.D.3d 920, 921, 162 N.Y.S.3d 116; Richardson v. Cablevision Sys. Corp., 173 A.D.3d 1083, 104 N.Y.S.3d 655). “In determining a motion for summary judgment, the evidence must be viewed in the light most favorable to the nonmoving party” (Boulos v. Lerner–Harrington, 124 A.D.3d at 709, 2 N.Y.S.3d 526). There can be more than one proximate cause of an accident (see Cox v. Nunez, 23 A.D.3d 427, 427, 805 N.Y.S.2d 604), and “[g]enerally, it is for the trier of fact to determine the issue of proximate cause” (Kalland v. Hungry Harbor Assoc., LLC, 84 A.D.3d 889, 889, 922 N.Y.S.2d 550). The issue of proximate cause may be decided as a matter of law where only one conclusion may be drawn from the established facts (see id. at 889, 922 N.Y.S.2d 550).

^[5]In support of that branch of their motion which was for summary judgment dismissing the complaint insofar as asserted against CBS and McNay, the defendants established their prima facie entitlement to judgment as a matter of law by submitting evidence which established that the plaintiff violated Vehicle and Traffic Law § 1214 by opening the door on the side of his vehicle adjacent to moving traffic when it was not reasonably safe to do so, and was negligent in failing to see what, by the reasonable use of his senses, he should have seen, and that this negligence was the sole proximate cause of the accident (see Elmekki v. Covington, 207 A.D.3d 436, 437, 169 N.Y.S.3d 515; Persaud v. Hub Truck Rental Corp., 170 A.D.3d 907, 908, 96 N.Y.S.3d 99; Williams v. Persaud, 19 A.D.3d 686, 686, 798 N.Y.S.2d 495). In opposition, the plaintiff failed to raise a triable issue of fact as to whether either CBS or McNay was at fault in the happening of the accident (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572). Accordingly, the Supreme Court properly granted that branch of the defendants’ motion which was for summary judgment dismissing the complaint insofar as asserted against CBS and McNay.

*2 ^[6]The Graves Amendment provides that the owner of a leased or rented motor vehicle cannot be held liable for personal injuries resulting from the use of such vehicle if the owner (1) is engaged in the trade or business of renting or leasing motor vehicles, and (2) engaged in no negligence or criminal wrongdoing contributing to the accident (see 49 USC § 30106[a]; Harewood v. Zip Car, 189 A.D.3d 1192, 1193, 134 N.Y.S.3d 264; Edwards v. J & D Express Serv. Corp., 180 A.D.3d 871, 116 N.Y.S.3d 597). Therefore, to establish its prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against it, Kharieh Bros. was required to show on the defendants’ motion (1) that it owned the box truck driven by McNay, (2) that it engaged in the business of leasing or renting motor vehicles, (3) that the subject accident occurred during the period of the lease or rental, and (4) that there is no triable issue of fact as to the plaintiff’s allegation that negligent maintenance contributed to the accident (see Caputo v. Brown, 196 A.D.3d 456, 458, 150 N.Y.S.3d 733; Lozano v. Magda, Inc., 165 A.D.3d 1249, 84 N.Y.S.3d 802; Ballatore v. HUB Truck Rental Corp., 83 A.D.3d 978, 979–980, 922 N.Y.S.2d 180). Here, Kharieh Bros. met its prima facie burden (see Caputo v. Brown, 196 A.D.3d at 458, 150 N.Y.S.3d 733; Zielinski v. New Jersey Tr. Corp., 170 A.D.3d 927, 928–929, 96 N.Y.S.3d 78). In opposition, the plaintiff failed to raise a triable issue of fact. Accordingly, the Supreme Court properly granted that branch of the defendants’ motion which was for summary judgment dismissing the complaint insofar as asserted against Kharieh Bros.

CONNOLLY, J.P., MALTESE, ZAYAS and TAYLOR, JJ., concur.

All Citations

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