Parsehian v Consolidated Edison Co. of N.Y., Inc. 2024 NY Slip Op 31623(U) May 8, 2024 Supreme Court, New York County Docket Number: Index No. 159739/2022 Judge: James G. Clynes 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. INDEX NO. 159739/2022 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 05/08/2024
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COL"NTY PRESENT: HON. JAMES G. CLYNES PART llM Ju.,tice --------------·-------------------------------· ·-------------.... -----· --------·-X INDEX NO. I 59739/2022 TRACEY PARSEHIAN, MOTION DATE 04/0)/2024 Plaintiff, MOTION SEQ. NO. 001 - V -
CONSOLIDATED ED!S01' COMPANY OF NEW YORK, INC., DECISION+ ORDER O~ STEFAN B. KEENEY MOTION Defendants.
The following e-filed documents, listed by NYSCEF document number (Motion 00 I) 9. 10, I I, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21 were read on this motion to/for SUMMARY JUDGMENT (AFTER JOINDER)
Upon the foregoing documents, Plaintiff's motion for summary judgment in favor of
Plaintiff and against Defendants and to strike Defendants' Second Affirmative Defense of
assumption of the risk. Fourth Affirmative Defense of comparative fault andior culpable conduct,
Tenth Affirmative Defense of lack of seatbelt, Eleventh Affirmative Defense of lack of/negligent
use of safety devices, Twelfth Affim1ative Defense of emergency doctrine, and Fourteenth
Affirmative Defense of failure to comply with YTL is decided as follows:
Plaintiff seeks recovery for injuries allegedly sustained as a result of a May 27; 2022 motor
vehicle accident between a vehicle operated by Plaintiff and a vehicle owned by Defendant
Consolidated Edison Company of New York, Inc. and operated by Defendant Stefan B. Keeney.
In support of her motion, Plaintiff relies on a certified police report and her affidavit. The
certified police report identifies the parties and states that the responding officer assisted the drivers
with exchanging information, he reported no injuries involved, and that he advised his sergeant of
the accident. In her affidavit, Plaintiff averred that she was the seat belted driver in the third
159739/2022 PAR.'i;J.:JIIA'II, TRi\CEY vs. CONSOLIDATED EDISOS COMPANY OF' NEW YORK, Page I of S INC. ETAL Motio11 No. 001
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NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 05/08/2024
vehicle stopped for a red traffic signal at Lockwood Avenue and Webster Avenue; she was
completely stopped for minutes when Defendants' vehicle slammed into the rear of her stopped
vehicle and propelled it forward; her vehicle did not strike the vehicle in front of it.
Plaintiffs submission establishes a prima facie case of negligence against Defendants (see
Winegrad v New York University Medical Center, 64 NY2d 851, 853 [1985]). The burden
therefore shifts to Defendants to come forward "'·ith an adequate nonnegligent explanation for the
accident (Cruz v Lise. 123 AD3d 514 (1" Dep't 2014).
In opposition, Defendants submit the affidavit of Defendant Driver who avers that he was
operating Defendant Con Edison" s vehicle during the course of his employment, driving
westbound on Lockwood Avenue at 15 mph, he saw the vehicle in front of Plaintiffs make a left
tum and Plaintiffs vehicle came to a sudden stop while the light was green; prior to stopping,
Plaintiff did not put her hazard lights on or take evasive measures.
In reply, Plaintiff contends that Defendant Driver was obligated to maintain a safe distance
pursuant to VTL 1129 (a) and his failure to do so in the absence of an adequate, non-negligent
explanation constitutes negligence as a matter of law.
Pursuant to VTL 1129 (a), drivers have a duty to maintain safe distances between vehicles
and be prepared for vehicle stoppages (Johnson v Phillips, 261 AO2d 269,271 [1st Dept 1999]).
Further. it is well settled that a rear-end collision with a stopped or stopping vehicle establishes a
prima facie case of negligence on the part of the driver of the rear vehicle, and imposes a duty on
the part of the operator of the rear vehicle to come fonvard with an adequate nonnegligent
explanation for the accident (Morgan v Browner, 138 AD3d 560 [1st Dept 2016); Corrigan v
Porter Cab Corp., 101 AD3d 471 [1st Dept 2012]).
1597J9i2022 PARSEHIAN, TRACEY vs. CONSOLIDATED EDISON COMPANY OF NEW YORK, Page 2 of5 INC. Kr AL Motion No. 00 I
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Here, Defendant Driver stated that he rear-ended Plaintiff because Plaintiff stopped short
while at the intersection with a green light. However, "[a] claim that the lead vehicle made a
sudden stop, standing alone, is insufficient to rebut the presumption of negligence on the part of
the rear driver" (Morgan, 138 AD3d at 560). Similarly, the assertion that the stop occurred while
Plaintiff was presumably proceeding with a green light present a material question of fact for trial
(Chowdhury v 1\1atos, 118 AD3d 488 [ 1st Dept 2014} ["even crediting the testimony of defendant
Collazo that Mohammed abruptly stopped in the middle of the intersection and not for a red light,
defendants have failed to proffer a nonnegligent explanation for the rear-end collision"]). The
motion is granted.
The branch of Plaintiff's motion to strike Defendants' Second Affirmative Defense of
assumption of the risk, Fourth Affirmative Defense of comparative fault and/or culpable conduct,
Tenth Affirmative Defense of lack of seatbelt, Eleventh Affirmative Defense of lack of/negligent
use of safety devices, Twelfth Affirmative Defense of emergency doctrine, and Fourteenth
Affirmative Defense of failure to comply with VTL is granted in part. Through her affidavit,
Plaintiff established that she was wearing her seatbelt. Defendants have failed to offer any
evidence that Plaintiff was not wearing her seatbelt at the time of the accident. To the extent that
Defendants attempt to invoke the emergency doctrine, the emergency doctrine is typically
inapplicable to routine rear-end traffic accidents (Johnson v Phillips, 261 AD2d 269 [1st Dept
1999]). The emergency doctrine is inappropriate in cases where the subject accident resulted from
an occurrence which the parties had reason to anticipate. Here, Defendant Driver failed to
maintain a reasonably safe distance from Plaintiff's vehicle. Drivers are charged with a
responsibility to maintain a safe distance between vehicles and to be prepared for such vehicle ·
stoppages (VTL 1129). Thus, even accepting as true Defendant Driver's testimony that Plaintiffs
159739/2022 PARSEHIAN, TR.\.CEY vs. CONSOUDATED EDISON C0\1PAl\'Y OF NEW \'ORK, Page3of5 INC. ETAL '\lotion No. 001
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vehicle stopped at the green light, it does not explain why Defendant Driver failed to keep a safe
distance between himself and the vehicle ahead of him (Acevedo v Akhtar, 204 AD3d 596 [1st
Dept 2022]). Thus, Defendants Tenth Affirmative Defense of lack of seatbelt and Twelfth
Affirmative Defense of emergency doctrine are dismissed.
With regard to the remaining affirmative defenses, the Court of Appeals has held that a
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Parsehian v Consolidated Edison Co. of N.Y., Inc. 2024 NY Slip Op 31623(U) May 8, 2024 Supreme Court, New York County Docket Number: Index No. 159739/2022 Judge: James G. Clynes 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. INDEX NO. 159739/2022 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 05/08/2024
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COL"NTY PRESENT: HON. JAMES G. CLYNES PART llM Ju.,tice --------------·-------------------------------· ·-------------.... -----· --------·-X INDEX NO. I 59739/2022 TRACEY PARSEHIAN, MOTION DATE 04/0)/2024 Plaintiff, MOTION SEQ. NO. 001 - V -
CONSOLIDATED ED!S01' COMPANY OF NEW YORK, INC., DECISION+ ORDER O~ STEFAN B. KEENEY MOTION Defendants.
The following e-filed documents, listed by NYSCEF document number (Motion 00 I) 9. 10, I I, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21 were read on this motion to/for SUMMARY JUDGMENT (AFTER JOINDER)
Upon the foregoing documents, Plaintiff's motion for summary judgment in favor of
Plaintiff and against Defendants and to strike Defendants' Second Affirmative Defense of
assumption of the risk. Fourth Affirmative Defense of comparative fault andior culpable conduct,
Tenth Affirmative Defense of lack of seatbelt, Eleventh Affirmative Defense of lack of/negligent
use of safety devices, Twelfth Affim1ative Defense of emergency doctrine, and Fourteenth
Affirmative Defense of failure to comply with YTL is decided as follows:
Plaintiff seeks recovery for injuries allegedly sustained as a result of a May 27; 2022 motor
vehicle accident between a vehicle operated by Plaintiff and a vehicle owned by Defendant
Consolidated Edison Company of New York, Inc. and operated by Defendant Stefan B. Keeney.
In support of her motion, Plaintiff relies on a certified police report and her affidavit. The
certified police report identifies the parties and states that the responding officer assisted the drivers
with exchanging information, he reported no injuries involved, and that he advised his sergeant of
the accident. In her affidavit, Plaintiff averred that she was the seat belted driver in the third
159739/2022 PAR.'i;J.:JIIA'II, TRi\CEY vs. CONSOLIDATED EDISOS COMPANY OF' NEW YORK, Page I of S INC. ETAL Motio11 No. 001
[* 1] 1 of 5 ·'·---"" -,,-- 9 """',,-.~ ·• ·,~- · ~ • - ' ~-• •••~ INDEX NO. 15 973 9 / 2 02 2
NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 05/08/2024
vehicle stopped for a red traffic signal at Lockwood Avenue and Webster Avenue; she was
completely stopped for minutes when Defendants' vehicle slammed into the rear of her stopped
vehicle and propelled it forward; her vehicle did not strike the vehicle in front of it.
Plaintiffs submission establishes a prima facie case of negligence against Defendants (see
Winegrad v New York University Medical Center, 64 NY2d 851, 853 [1985]). The burden
therefore shifts to Defendants to come forward "'·ith an adequate nonnegligent explanation for the
accident (Cruz v Lise. 123 AD3d 514 (1" Dep't 2014).
In opposition, Defendants submit the affidavit of Defendant Driver who avers that he was
operating Defendant Con Edison" s vehicle during the course of his employment, driving
westbound on Lockwood Avenue at 15 mph, he saw the vehicle in front of Plaintiffs make a left
tum and Plaintiffs vehicle came to a sudden stop while the light was green; prior to stopping,
Plaintiff did not put her hazard lights on or take evasive measures.
In reply, Plaintiff contends that Defendant Driver was obligated to maintain a safe distance
pursuant to VTL 1129 (a) and his failure to do so in the absence of an adequate, non-negligent
explanation constitutes negligence as a matter of law.
Pursuant to VTL 1129 (a), drivers have a duty to maintain safe distances between vehicles
and be prepared for vehicle stoppages (Johnson v Phillips, 261 AO2d 269,271 [1st Dept 1999]).
Further. it is well settled that a rear-end collision with a stopped or stopping vehicle establishes a
prima facie case of negligence on the part of the driver of the rear vehicle, and imposes a duty on
the part of the operator of the rear vehicle to come fonvard with an adequate nonnegligent
explanation for the accident (Morgan v Browner, 138 AD3d 560 [1st Dept 2016); Corrigan v
Porter Cab Corp., 101 AD3d 471 [1st Dept 2012]).
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Here, Defendant Driver stated that he rear-ended Plaintiff because Plaintiff stopped short
while at the intersection with a green light. However, "[a] claim that the lead vehicle made a
sudden stop, standing alone, is insufficient to rebut the presumption of negligence on the part of
the rear driver" (Morgan, 138 AD3d at 560). Similarly, the assertion that the stop occurred while
Plaintiff was presumably proceeding with a green light present a material question of fact for trial
(Chowdhury v 1\1atos, 118 AD3d 488 [ 1st Dept 2014} ["even crediting the testimony of defendant
Collazo that Mohammed abruptly stopped in the middle of the intersection and not for a red light,
defendants have failed to proffer a nonnegligent explanation for the rear-end collision"]). The
motion is granted.
The branch of Plaintiff's motion to strike Defendants' Second Affirmative Defense of
assumption of the risk, Fourth Affirmative Defense of comparative fault and/or culpable conduct,
Tenth Affirmative Defense of lack of seatbelt, Eleventh Affirmative Defense of lack of/negligent
use of safety devices, Twelfth Affirmative Defense of emergency doctrine, and Fourteenth
Affirmative Defense of failure to comply with VTL is granted in part. Through her affidavit,
Plaintiff established that she was wearing her seatbelt. Defendants have failed to offer any
evidence that Plaintiff was not wearing her seatbelt at the time of the accident. To the extent that
Defendants attempt to invoke the emergency doctrine, the emergency doctrine is typically
inapplicable to routine rear-end traffic accidents (Johnson v Phillips, 261 AD2d 269 [1st Dept
1999]). The emergency doctrine is inappropriate in cases where the subject accident resulted from
an occurrence which the parties had reason to anticipate. Here, Defendant Driver failed to
maintain a reasonably safe distance from Plaintiff's vehicle. Drivers are charged with a
responsibility to maintain a safe distance between vehicles and to be prepared for such vehicle ·
stoppages (VTL 1129). Thus, even accepting as true Defendant Driver's testimony that Plaintiffs
159739/2022 PARSEHIAN, TR.\.CEY vs. CONSOUDATED EDISON C0\1PAl\'Y OF NEW \'ORK, Page3of5 INC. ETAL '\lotion No. 001
[* 3] 3 of 5 INDEX NO. 159739/2022
vehicle stopped at the green light, it does not explain why Defendant Driver failed to keep a safe
distance between himself and the vehicle ahead of him (Acevedo v Akhtar, 204 AD3d 596 [1st
Dept 2022]). Thus, Defendants Tenth Affirmative Defense of lack of seatbelt and Twelfth
Affirmative Defense of emergency doctrine are dismissed.
With regard to the remaining affirmative defenses, the Court of Appeals has held that a
plaintiff may be entitled to partial summary judgment on the issue of a defendant's liability even
if a defendant raises an issue of fact regarding a plaintiffs comparative negligence (Carlos
Rodriguez, Appellant, v City of NY, Respondent., 31 NY3d 312 [201 8]). The issue of a plaintiffs
comparative negligence is addressed and determined when considering the damages that a
defendant owes to a plaintiff (Id. at 3). To be entitled to summary judgment on the issue of
liability, a plaintiff is not required to demonstrate the absence of fault on her part (Rodriguez v City
ofNew York, 31 NY3d 312 [20181). Nor is she required to establish that defendant's conduct was
the sole proximate cause of the accident. (Simmons v Bergh, 192 AD3d 547 [ l st Dept 2021 ]).
In this case, Plaintiff has not shown that Defendants' conduct was the sole cause of that
accident and Defendant Driver's affidavit establishes that Plaintiff may be partially responsible for
her injuries. Therefore, the branch of Plaintiffs motion to dismiss Defendants' Second
Atlirmative Defense, Fourth Affirmative Defense, Eleventh Affirmative Defense and Fourteenth
Affirmative Defense is denied. Accordingly, it is
ORDERED that the branch of Plaintiff's motion for summary judgment on liability in
Plaintiffs favor and against Defendants is GRANTED; and it is further
ORDERED that the branch of Plaintiff's motion to dismiss Defendants' Tenth Affirmative
Defense and Twelfth Affirmative Defense is GRANTED; and it is further
159739/2022 PARS.:IIIAN, TRAO:Y vs. CO'.',iSOLlDATED EDISO:"J COMPANY OF NEW YORK. Page4of5 INC. ET AL Motion No. 00 I
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ORDERED that the branch of Plaintiffs motion to dismiss Defendants· Second
Affirmative Defense, Fourth Affirmative Defense, Eleventh Affirmative Defense and Fourteenth
Affirmative Defense is DENIED; and it is further
ORDERED that \Vithin 30 days of entry. Plaintiff shall serve a copy of this Decision and
Order upon Defendants with Notice of Entry.
This constitutes the Decision and Order of the Court.
5/812024 DATE
CHF.CKONE: ASE DISPOSED ON-FINAL DISPOSITION
RANTED DlENIED RA:-.TED IN PART
APPLICATION: ETTLEORDER lIBMIT ORDER
CHECK IF APPROPRIATE: NCLlJDF,S TRANSFER/REASSIGN IDUCIARY APPOINTMEl'ff DEFERENCE
159739/2022 PARSEHIAN, TRACEY vs. CONSOLIDATED EDISON COMPANY OF NEW YORK, Page 5 ofS INC ETAL Motion No. 001
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