Bamidele v. Andrade

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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DAMOLA BAMIDELE,

Plaintiff, MEMORANDUM AND ORDER

- against - 2:21-cv-2479 (GRB) (AYS)

JERY A. ANDRADE, LILY

TRANSPORTATION CORP.,

Defendants.

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APPEARANCES

SANDERS, SANDERS, BLOCK & WOYCIK

Attorneys for Plaintiff

100 Garden City Plaza, Suite 500

Garden City, NY 11501

By: David Matthew Kittrell, Esq.

RAVEN & KOLBE, LLP

Attorneys for Defendants

126 East 56th Street, Suite 202

New York, NY 10022

By: Danielle Rudkin, Esq.

GARY R. BROWN, District Judge:

INTRODUCTION

Plaintiff Damola Bamidele brought this diversity action against defendants

Jery A. Andrade and Lily Transportation Corp. asserting defendants were negligent

when their truck rear-ended Bamidele’s vehicle. Presently before the Court is

Bamidele’s motion for partial summary judgment on the issue of liability. For the

reasons below, Bamidele’s motion is granted.

BACKGROUND

The following relevant facts, drawn from the parties’ Local Rule 56.1

statements and the evidentiary record, are undisputed unless otherwise noted. See

DEs 14-2, 15-1.

On August 24, 2020 at around 3:55 A.M., Bamidele and Andrade drove their

respective vehicles eastbound on the Long Island Expressway. DE 14-2, ¶ 1.

Bamidele’s Toyota Corolla was in the right lane; Andrade’s Mack tractor trailer was

in the center lane. DE 14-11, Dep. Tr. of Damola Bamidele at 24:10–19; DE 14-12,

Dep. Tr. of Jery A. Andrade at 21:8–16. As they approached Exit 41N, an

unidentified vehicle behind and to the left of Andrade’s truck came “too close” to his

lane. DE 14-2, ¶ 1; DE 14-12 at 25:23–28:14. In response, Andrade swerved right,

rear-ending Bamidele’s car, which was slowing as it moved from the right lane onto

the exit ramp. DE 14-11 at 23:15–24:10, 26:13–25, 34:23–35:3; DE 14-12 at 21:8–16.

Andrade did not see Bamidele’s car before hitting him. DE 14-12 at 21:20–23.

The Police Accident Report and the Incident Report record statements by the

witnesses which are not inconsistent with the sequence of events. DE 14-3 (Andrade

“states that he went into [Bamidele’s] lane to avoid a [motor vehicle] and hit”

Bamidele’s vehicle); DE 14-7 at 5, Defs. Initial Disclosures, Ex. E (stating defendant

“hit the car of next right side . . . thinking that someone was in [sic] my left side”)).

Bamidele brought this action initially in New York Supreme Court, Nassau

County on October 28, 2020. DE 1, ¶ 1. On April 8, 2021, Bamidele served its Bill of

Particulars, prompting defendants to remove the action to this Court on May 4, 2021.

Id. ¶¶ 11, 13. The parties proceeded directly into discovery, and plaintiff filed the

instant summary judgment motion on February 24, 2022. DE 14.

LEGAL STANDARD

This motion for partial summary judgment is decided under an oft-repeated

and well-understood standard of review, as discussed in Bartels v. Inc. Vill. of Lloyd

Harbor, 97 F. Supp. 3d 198, 211 (E.D.N.Y. 2015), aff’d, 643 F. App’x 54 (2d Cir. 2016),

which discussion is incorporated by reference herein. In sum, the question before the

Court is whether, based upon the undisputed or improperly disputed facts, the

movant is entitled to judgment.

DISCUSSION

Bamidele moves for summary judgment on the issue of defendants’ negligence

liability. “To establish a cause of action sounding in negligence, a plaintiff must

establish [1] the existence of a duty on defendant’s part to plaintiff, [2] breach of the

duty and [3] damages.” Greenberg, Trager & Herbst, LLP v. HSBC Bank USA, 17

N.Y.3d 565, 576 (N.Y. 2011) (citing Akins v. Glens Falls City School Dist., 53 N.Y.2d

325, 333 (N.Y. 1981)).

Defendants do not dispute that their “vehicle came into contact with the rear

and driver’s side of [Bamidele’s] vehicle.” Def. Opp. at 2 (“This much is not in

dispute.”). “A driver of a vehicle approaching another vehicle from the rear is

required to maintain a reasonably safe distance and rate of speed under the

prevailing conditions to avoid colliding with the other vehicle.” Witonsky v. New York

City Transit Auth., 145 A.D.3d 938, 939 (N.Y. App. Div., 2d Dep’t 2016) (quoting

Nsiah–Ababio v. Hunter, 78 A.D.3d 672, 672 (N.Y. App. Div., 2d Dep’t 2010)). New

York law therefore imposes a presumption of negligence upon defendants rear-ending

another vehicle. Krynski v. Chase, 707 F. Supp. 2d 318, 323 (E.D.N.Y. 2009) (“While

the presumption of negligence is not limited to rear-end collisions with slowing or

stationary vehicles, it applies with particular force in these instances . . . .”).

Defendants’ concession thus establishes Bamidele’s prima facie case for negligence

liability, “thereby requiring [defendants] to rebut the inference of negligence by

providing a non-negligent explanation for the collision.” Witonsky, 145 A.D.3d at 939

(quoting Scheker v. Brown, 85 A.D.3d 1007, 1007 (N.Y. App. Div., 2d Dep’t 2010));

e.g., Mangual v. Pleas, 2004 WL 736817, at *3 (S.D.N.Y. Apr. 6, 2004) (“A plaintiff

makes out a prima facie case of negligence with proof that defendant’s vehicle rear-

ended plaintiff’s vehicle, or where there is no dispute to that effect.”).

Additionally, defendants violated New York Vehicle and Traffic Law § 1128(a)

by switching lanes without “first ascertain[ing] that such movement can be made

with safety” – which, considering a driver’s “duty not to merge into a lane of moving

traffic until it is safe to do so, . . . constitutes negligence as a matter of law.” Choo v.

Virginia Transportation Corp., 204 A.D.3d 743, 744 (N.Y. App. Div., 2d Dep’t 2022);

e.g., Charles v. Nicholson, 203 A.D.3d 1124, 1124 (N.Y. App. Div., 2d Dep’t 2022);

Carthen v. Sherman, 169 A.D.3d 416, 417 (N.Y. App. Div., 1st Dep’t 2019); Thompson

v. Pizzaro, 155 A.D.3d 423, 423 (N.Y. App. Div., 1st Dep’t 2017); Vainer v. DiSalvo,

79 A.D.3d 1023, 1024 (N.Y. App. Div., 2d Dep’t 2010) (“A violation of the Vehicle and

Traffic Law,” which in that case included § 1128(a) “constitutes negligence as a

matter of law.”).

Defendants attempt to rebut the inference of liability by invoking the

“emergency doctrine.” Def. Opp. at 5–9. The emergency doctrine “‘recognizes that

when an actor is faced with a sudden and unexpected circumstance which leaves little

or no time for thought, deliberation or consideration, or causes the actor to be

reasonably so disturbed that the actor must make a speedy decision without weighing

alternative courses of conduct, the actor may not be negligent if the actions taken are

reasonable and prudent in the emergency context’ provided the actor has not created

the emergency.” Caristo v. Sanzone, 96 N.Y.2d 172, 174 (N.Y. 2001) (quoting Rivera

v. New York City Transit Auth., 77 N.Y.2d 322, 327 (N.Y. 1991)). The emergency

doctrine “is typically not available to defendants in rear-end collisions.” Jacobellis v.

New York State Thruway Auth., 51 A.D.3d 976, 977 (N.Y. App. Div., 2d Dep’t 2008)

(citing Campanella v. Moore, 266 A.D.2d 423, 424 (N.Y. App. Div., 2d Dep’t 1999)).

“The possibility that a car in an adjacent lane would try to enter [a defendant’s]

lane is not a sufficiently unforeseeable or unexpected event as to warrant invocation

of the emergency doctrine.” Krynski, 707 F. Supp. 2d at 325–26. This holding is

convincing here, considering Andrade merely reacted to an unidentified vehicle

closing in on his lane, “approaching his trailer on the left.” DE 15-2, Aff. of Danielle

M. Rudkin ¶¶ 9, 11. Corroborating this sequence of events, the Incident Report filled

out by Andrade on the day of the collision states he hit Bamidele’s car “thinking that

someone was in [sic] my left side.” DE 14-7 at 5. Like the defendants in Lowhar-

Lewis v. Metro. Transp. Auth., defendants’ “own submissions regarding the incident

demonstrate[] that the [Andrade] was not reacting to an emergency, but, rather, to a

common traffic occurrence.” 97 A.D.3d 728, 729 (N.Y. App. Div., 2d Dep’t 2012). The

emergency doctrine does not apply where, as here, a defendant “should reasonably

have anticipated and been prepared to deal with the situation with which she was

confronted.” Hardy v. Sicuranza, 133 A.D.2d 138, 139 (N.Y. App. Div., 2d Dep’t 1987);

see Smith v. Perfectaire Co., 270 A.D.2d 410, 410 (N.Y. App. Div., 2d Dep’t 2000)

(citing Moore v. Bame, 257 A.D.2d 716, 717 (N.Y. App. Div., 3d Dep’t 1999)).

As a matter of law, the emergency doctrine does not apply to these facts.

Defendants have therefore failed to rebut the presumption of negligence, meaning

Bamidele warrants partial summary judgment on the issue of liability. Plaintiff’s

motion is granted.

CONCLUSION

For the reasons discussed above, plaintiff’s motion for partial summary

judgment is granted.

SO ORDERED.

Dated: Central Islip, New York /s/ Gary R. Brown

September 13, 2022 GARY R. BROWN

United States District Judge