Baez v. Olis Car Serv. Inc.

2020 NY Slip Op 35562

• Court: New York Supreme Court, Bronx County
• Decided: June 10, 2020
• Status: Unpublished

Opinion

Baez v Olis Car Serv. Inc. 2020 NY Slip Op 35562(U) June 10, 2020 Supreme Court, Bronx County Docket Number: Index No. 31133/2019E Judge: John R. Higgitt Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. FILED: BRONX COUNTY CLERK 06/15/2020 03:10 PM INDEX NO. 31133/2019E NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 06/15/2020

SUPREME COURT OF THE STA TE OF NEW YORK COUNTY OF BRONX: IA PART 14 --------------------------------------------------------------------X DIANA M. BAEZ, DECISION AND ORDER Plaintiff, - against - Index No. 31133/2019£ OLIS CAR SERVICE INC. and MANUEL FELIZ CEPIN, Defendants. --------------------------------------------------------------------X Present: John R. Higgit1, J.S.C.

Upon plaintiff's February 24, 2020 notice of motion and the affinnation, affidavit and

exhibits submitted in support thereof; there being no opposition to the application; and due

deliberation; the court having advised the parties, by email directed to the addresses associated

with the action on the NYSCEF site, on May 15, 2020 that the motion would be decided on the

basis of the papers e-filed as of the close of business on the return date, and having received no

indication that the court's communication was not received by the parties; the court not having

received any response to its communication; the court's review of the records relating to this

matter indicating that the matter has not been settled, discontinued or otherwise disposed; and

due deliberation; plaintiffs motion for partial summary judgment on the issue of defendants'

liability for causing the subject motor vehicle accident and for dismissal of defendants' third,

fifth and tenth affinnative defenses is granted.

In support of the motion, plaintiff submits her affidavit in which she avers that the vehicle

she was driving had been stopped in traffic for several seconds when it was rear-ended by

defendants' vehicle, and that plaintiff had not abruptly changed .lanes or cut off any vehicle prior

to the accident.

Plaintiff also submits the police accident report containing the statement, ostensibly

[* 1] 2 of 4 FILED:. . . BRONX COUNTY CLERK 06/15/2020 03:10 PM INDEX NO. 31133/2019E NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 06/15/2020

attributable to defendant Cepin, that the accident was caused when he was temporarily unable to

see plaintiff's vehicle because of sun glare. While the report is uncertified, this statement is

· admissible as an admiss!on (see Thompson v Coca-Cola Bottling Co., 170 AD3d 588 [1st Dept

2019]; Liburd v Lulgjuraj, 156 AD3d 532 [1st Dept 201 7]), which defendant Cepin does not

deny making (see Estate of Mirjani v De Vito, 135 AD3d 616 [1st Dept 2016]).-

This proof is sufficient to meet plaintiff's prima facie burden of demonstrating

defendants' liabilitjr (see Downey v.Mazz10/i, 137 AD3d 498 [1st Dept_2016]). "A driver is

supposed to make reasonable use of his or her senses, drive at a safe rate . . of speed under existing

conditiqns, and maintain a safe distance from other motor vehicles, which was not done in this

case" (Miller v Desouza, 165 AD3d 550,550 [1st Dept 2018] [citations omitted]; see Vehicle

and Traffic Law§ l 129(a]). Sun glare does not excuse defendant Cepin's actions in striking the

re~r of plaintiffs vehicle (see .Johnson v Phillips, 261 AD2d 269 (1st Dept 1999]); Plaintiffs

"unre~utted testimony that [her] vehicle ... had been at a complete stop for several seconds when

it was struck in the rear by (defendants'] vehicle was sufficient as a matter oflaw to place sole

responsibility for the accident with [those defendants]" (id., 261 AD2d at 272), requiring

dismissal of defendants' third affirmative defense allegi_ng plaintiff's culpable conduct.

With respect to that aspect of the motion as seeks di°smissal of defendants' fifth

· affirmative defense alleging plaintiffs failure to wear a seatbelt, plaintiff averr~d that she was

wearing a seat belt at the time of the accident, and defendant failed ,to raise an issue of fact.

With respect to that aspect of the motion as seeks dismissal of defendants' tenth

affinnative defense alleging the application of the emergency doctrine, the emergency doctrine· is

generally inapplicable to routine rear-end motor vehicle accidents (see .John.,;011, supra), and is

inapplicable when the emergency is of the defendant's making (see Ruiz v Reyes; 148 AO3d 592

[* 2] 3 of 4 FILED: BRONX COUNTY CLERK 06/15/2020 03:10 PM INDEX NO. 31133/2019E NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 06/15/2020

[1st Dept 2017]). Defendants failed to raise an issue of fact as to whether the emergency doctrine

applie_s.

Accordingly, it is

ORDERED, that plaintiffs motion for partial summary judgment on the issue of

defendants' liability for causing the subject motor vehicle accident and for dismissal of

defendants' third, fifth and tenth affinnative defenses is granted, without opposition; and it is

further . . ORDERED, that defendants' third, fifth and tenth affinnative defenses are dismissed.

The parties are reminded of the 9:30 a.m. October 16, 2020 status conference before the

undersigned.

This constitutes the decision and order of the court.

Dated: June I 0, 2020

~on.~.s.c.

[* 3] 4 of 4