### 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

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### --------------------------------------------------------------------X DIANA M. BAEZ, Plaintiff,

- against

- OLIS CAR SERVICEINC. and MANUEL FELIZ CEPIN, Defendants. 

### --------------------------------------------------------------------X Present: John R. Higgit1, J.S.C. DECISION AND ORDER Index No. 31133/2019£

Upon plaintiff's February 24, 2020 notice ofmotion 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 theNYSCEF site, on May 15, 2020 that the motion would be decided on the basis ofthe papers e-filed as ofthe close ofbusiness on the return date, and having received no indication that the court's communication was not received bythe parties; the court not having received any response to its communication; the court'sreview ofthe records relating to this matter indicating that the matterhas not been settled, discontinued orotherwise disposed; and due deliberation; plaintiffs motion for partial summaryjudgment on the issue ofdefendants' liability for causing the subject motor vehicle accident and for dismissal ofdefendants' third, fifth and tenth affinnative defenses is granted. In support ofthe motion, plaintiffsubmits 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 plaintiffhad not abruptly changed .lanes orcut offany vehicle prior to the accident. Plaintiffalso submits thepolice accidentreport containing the statement, ostensibly



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### FILED: BRONX COUNTY CLERK 06/15/2020 03:10 PM INDEX NO. 31133/2019E NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 06/15/2020

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attributable to defendant Cepin, that the accident was caused when he was temporarily unable to
see plaintiff's vehicle because ofsun glare. While the report is uncertified, this statement is

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

2019]; Liburdv

### Lulgjuraj, 156 AD3d 532 [1st Dept 2017]), which defendant Cepin does not deny making 

### (see Estate of Mirjani vDe

### Vito, 135 AD3d 616 [1st Dept 2016]).- This proofis sufficient to meet plaintiff's prima facie burden ofdemonstrating defendants' liabilitjr (see Downey

### v.Mazz10/i, 137 AD3d 498 [1st Dept_2016]). "A driver is supposed to make reasonable use ofhis orher senses, drive at a safe rate ofspeed 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 doesnot excuse defendant Cepin's actions in striking the
re~r ofplaintiffs 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 oflawto place sole responsibility for the accident with [those defendants]" (id., 261 AD2d at 272), requiring dismissal ofdefendants' third affirmative defense allegi_ng plaintiff'sculpable conduct. With respect to that aspect ofthe motion as seeks di°smissal ofdefendants' fifth

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

wearing a seat belt at the time ofthe accident, and defendant failed ,to raise an issue offact. With respect to that aspect ofthe motion as seeks dismissal ofdefendants' tenth affinnative defense alleging the application ofthe 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 ofthe defendant's making (see Ruiz v Reyes; 148 AO3d 592

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### FILED: BRONX COUNTY CLERK 06/15/2020 03:10 PM INDEX NO. 31133/2019E NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 06/15/2020

4 of 4 [1st Dept 2017]). Defendants failed to raise an issue offact as to whetherthe emergency doctrine applie_s.Accordingly, it is ORDERED, that plaintiffsmotion for partial summaryjudgment on the issue of defendants' liability for causing the subject motor vehicle accident and for dismissal of defendants' third, fifth and tenth affinnative defenses isgranted, without opposition; and it is further

. . ORDERED, that defendants' third, fifth and tenth affinnative defenses are dismissed. The parties are reminded ofthe 9:30 a.m. October 16, 2020 status conference before the undersigned. This constitutes the decision and order ofthe court. Dated: June I0, 2020



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