| Melendez v McCrowell |
| 2016 NY Slip Op 04028 [139 AD3d 1018] |
| May 25, 2016 |
| Appellate Division, Second Department |
[*1]
| Michael Melendez et al.,Respondents, v Patrick McCrowell et al., Appellants, et al.,Defendants. |
Segal McCambridge Singer & Mahoney, New York, NY (James R. Callan andJon Michael Dumont of counsel), for appellants.
Goldblatt & Associates, P.C., Mohegan Lake, NY (Kenneth B. Goldblatt ofcounsel), for respondents.
In an action to recover damages for personal injuries, etc., the defendants PatrickMcCrowell and Marten Transport, Ltd., appeal from an order of the Supreme Court,Rockland County (Berliner, J.), dated July 7, 2015, which denied their motion, in effect,for summary judgment dismissing the amended complaint insofar as asserted againstthem and granted the plaintiffs' cross motion for summary judgment on the issue ofliability insofar as asserted against them.
Ordered that the order is affirmed, with costs.
The plaintiffs allege that the plaintiff Michael Melendez (hereinafter the injuredplaintiff), while driving a pickup truck owned by his employer during the course of hisemployment, was involved in a motor vehicle accident with a tractor-trailer on Interstate87 in Rockland County. The tractor-trailer was operated by the defendant PatrickMcCrowell and owned by McCrowell's then-employer, the defendant Marten Transport,Ltd. (hereinafter together the appellants).
The injured plaintiff applied for workers' compensation benefits from his employer'sworkers' compensation carrier. In its determinations, dated July 31, 2012 and September5, 2012, respectively, the Workers' Compensation Board found that the injured plaintiffsustained a work-related injury to his back and neck and experienced relatedposttraumatic headaches as a result of his work-related injury. The Workers'Compensation Board noted that the injured plaintiff had returned to work within theweek and determined that, at that time, there was either no evidence or insufficientevidence that the injured plaintiff sustained a permanent restriction or loss of use as aresult of the accident.
In July 2013, the injured plaintiff, and his wife suing derivatively, commenced thisaction against the appellants and others to recover damages, inter alia, for personalinjuries. After discovery was complete, the appellants moved, in effect, for summaryjudgment dismissing the amended complaint insofar as asserted against them. Theyargued, relying on the Workers' Compensation Board determination, that, pursuant to thedoctrine of collateral estoppel, the injured [*2]plaintiffdid not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the accident. In addition to opposing the appellants' motion, theplaintiffs cross-moved for summary judgment on the issue of liability against theappellants. The Supreme Court denied the appellants' motion and granted the plaintiffs'cross motion.
"The quasi-judicial determinations of administrative agencies are entitled tocollateral estoppel effect where the issue a party seeks to preclude in a subsequent civilaction is identical to a material issue that was necessarily decided by the administrativetribunal and where there was a full and fair opportunity to litigate before that tribunal"(Auqui v Seven Thirty One Ltd.Partnership, 22 NY3d 246, 255 [2013]). "Whether collateral estoppel should beapplied in a particular case turns on 'general notions of fairness involving a practicalinquiry into the realities of the litigation' " (id. at 255, quoting Jeffreys v Griffin, 1 NY3d34, 41 [2003] [internal quotation marks omitted]). Contrary to the appellants'contention, they failed to establish that the issue in this action is identical to thatnecessarily decided in the prior proceeding by the Workers' Compensation Board or thatthe plaintiffs were accorded a full and fair opportunity to contest the issue in thatproceeding (see Auqui v Seven Thirty One Ltd. Partnership, 22 NY3d at 255;Jenkins v Meredith Ave. Assoc., 238 AD2d 477, 479 [1997]; see also Dacey v City of NewYork, 127 AD3d 1010, 1010 [2015]). In this action, the plaintiffs alleged thatthe injured plaintiff sustained an acquired traumatic brain injury in the nature of aconcussive brain injury as a result of the accident, an injury which was not an issueraised before or considered by the Workers' Compensation Board.
With respect to the plaintiffs' cross motion, "[w]hen the driver of an automobileapproaches another automobile from the rear, he or she is bound to maintain a reasonablysafe rate of speed and control over his or her vehicle, and to exercise reasonable care toavoid colliding with the other vehicle" (Singh v Avis Rent A Car Sys., Inc., 119 AD3d 768, 769[2014]; see Gallo v Jairath,122 AD3d 795, 796 [2014]; Taing v Drewery, 100 AD3d 740, 741 [2012]).
A plaintiff in a personal injury action who moves for summary judgment on the issueof liability has the burden of establishing, prima facie, both that the defendant wasnegligent and that he or she was free from comparative fault (see Thoma v Ronai,82 NY2d 736, 737 [1993]; Matos v Tai, 124 AD3d 848 [2015]; France Herly Bien-Aime vClare, 124 AD3d 814, 814 [2015]). "A rear-end collision with a stopped orstopping vehicle establishes a prima facie case of negligence on the part of the operatorof the rear vehicle, thereby requiring that operator to rebut the inference of negligence byproviding a nonnegligent explanation for the collision" (Whelan v Sutherland, 128AD3d 1055, 1056 [2015]; see Tutrani v County of Suffolk, 10 NY3d 906, 908 [2008];Brothers v Bartling, 130AD3d 554, 555 [2015]).
Here, the plaintiffs established their prima facie entitlement to judgment as a matterof law by submitting McCrowell's deposition testimony, the injured plaintiff's depositiontestimony, and the injured plaintiff's affidavit, which demonstrated that the injuredplaintiff's vehicle was stopped in heavy traffic when it was struck in the rear by theappellants' vehicle (seeGutierrez v Trillium USA, LLC, 111 AD3d 669, 671 [2013]; Jumandeo v Franks, 56 AD3d614, 614 [2008]; Vecchio v Hildebrand, 304 AD2d 749, 750 [2003]).
In opposition, the appellants failed to raise a triable issue of fact. McCrowell'sstatement in his affidavit that the injured plaintiff brought his vehicle to a stop at least150 feet behind the stopped vehicle in front of him did not adequately rebut the inferenceof negligence given McCrowell's deposition testimony that he was able to bring hisvehicle to a stop behind the injured plaintiff's vehicle on two occasions prior to theaccident in heavy stop-and-go traffic without incident during the one minute that theinjured plaintiff was traveling in front of McCrowell's vehicle (see Hackney v Monge, 103AD3d 844, 845 [2013]; Taing v Drewery, 100 AD3d at 741; Shamah vRichmond County Ambulance Serv., 279 AD2d 564, 565 [2001]). Even if theinjured plaintiff's vehicle came to a sudden stop, "vehicle stops which are foreseeableunder the prevailing traffic conditions, even if sudden and frequent, must be anticipatedby the driver who follows, since he or she is under a duty to maintain a safe distancebetween his or her car and the car ahead" (Shamah v Richmond County AmbulanceServ., 279 AD2d at 565).
The appellants' remaining contentions are either without merit or need not be reached[*3]in light of our determination.
Accordingly, the Supreme Court properly denied the appellants' motion and grantedthe plaintiffs' cross motion. Mastro, J.P., Rivera, Austin and LaSalle, JJ., concur.