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Decided on September 1, 2010
Supreme Court, Kings County

27819/08
Plaintiff was represented by Marshall S. Bluth, Esq., 733 Third Ave., NY, NY 10017. Defendants were represented by Smith Mazure Director Wilkins Young & Yagerman, PC, 111 John St., NY, NY 10038.
Herbert Kramer, J.
Was the defendant driver faced with an emergency situation when the garbage truck that he had been following began to suddenly back up after being stopped? This court holds that the
defendant was not faced with an emergency situation and the action of backing up into the plaintiff's stopped vehicle was negligent as a matter of law.
Plaintiff moves for summary judgment on the issue of liability. This action arises out of a motor vehicle accident. It is undisputed that both plaintiff and defendant were fully stopped prior to the defendant backing up and hitting plaintiff's car. Defendant alleges that he had been following a garbage truck when the garbage truck stopped to load garbage. Allegedly, the garbage truck suddenly began to reverse which forced the defendant to back up. Defendant did not see the plaintiff's vehicle prior to the collision. Defendant's vehicle was not hit by the garbage truck. Plaintiff testified that she was not aware of the alleged garbage truck in front of defendant's vehicle as her visibility was blocked due to the size of defendant's bus.
On a summary judgment motion the court must view the evidence in the light most favorable to the party opposing the motion, giving that party the benefit of every reasonable inference and determine whether there are any triable issues of fact outstanding. Branham v. Loews Orpheum Cinemas, Inc., 8 NY3d 931 [2007]. The court must determine if the moving party's papers justify holding as a matter of law that the cause of action or defense has no merit. Marine Midland Bank,
N.A. v. Dino & Artie's Automatic Transmission Co., 168 AD2d 610 [1990]. It is well established that summary judgment is a drastic remedy that should not be granted where there is any doubt as to the existence of a material issue of fact or where the issue is arguable. Stillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395 [1957]. "It is necessary for the movant to establish her cause of action or defense sufficiently to warrant the court as a matter of law in directing judgement in his favor (CPLR 3212, sub [b]) and she must do so by tender of evidentiary proof in admissible form." [*2]Lopez v. Senatore, 97 AD2d 787 [2nd Dept 1983] quoting Friends of Animals v. Associated Fur. Mfrs., 46 NY2d 1065 [1979].
Summary judgment is rarely warranted in negligence actions. However in cases where there is no conflict in the evidence, the defendants driver's conduct falls below any permissible standard of due case and the plaintiff's conduct was not involved summary judgement may be granted. See Lopez v. Senatore, 97 AD2d 787 [1983].
Plaintiff submits that as a matter of law the defendant was negligent in the operation of his vehicle. In support of the motion Plaintiff asserts that the collision is analogous to a hit in the rear collision which establishes a prima facie case of negligence on the part of the operator of the offending vehicle.See, Johnson v. Phillips, 261 AD2d 690 [1999]. When a rear end collision occurs with a stopped vehicle the injured parties of the first vehicle are entitled to summary judgment on liability, unless the driver of the following vehicle can provide a non-negligent explanation, in evidentiary form for the collision. Id.
The evidence submitted in support of the motion are the deposition of both plaintiff and defendant, the police report and MV-104 form. The police report and MV-104 form have been submitted as party admissions and to in an attempt to cast doubt on defendant's credibility regarding the existence of the garbage truck. Credibility is not an appropriate issue to be resolved on a summary judgment motion. See, Nye v. Putnam Nursing & Rehabilitation Center, 62 AD3d 767 [2d Dept 2009]. Regardless, the admissibility of said documents is irrelevant to the determination that defendant was, as a matter of law, negligent in the operation of his vehicle. As the outcome of the motion would be the same whether the garbage truck was present or not and taking the evidence in the light most favorable to the party opposing the motion it is assumed that the garbage truck was present.
Vehicle and Traffic Law

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New York Law