The opinion
Robinette v Feuerwerker
2025 NY Slip Op 33012(U)
July 23, 2025
Supreme Court, Kings County
Docket Number: Index No. 509495/2025
Judge: Wavny Toussaint
Cases posted with a "30000" identifier, i.e., 2013 NY Slip
Op 30001(U), are republished from various New York
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This opinion is uncorrected and not selected for official
publication.
FILED: KINGS COUNTY CLERK 07/25/2025 INDEX NO. 509495/2025
NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 07/28/2025
At an IAS Term, Part 70 of the Supreme Court
of the State of New York, held in and for the
County of Kings, at the Courthouse, at 360
Ada~s Street, Brooklyn, New York, on the
a) day of July, 2025.
PRESENT:
HON. WA VNY TOUSSAINT,
Justice.
JACQUELINE A. ROBINETTE, Index No.: 509495/2025
Plaintiff,
(Y\ s *'
DECISION AND ORDER
-against-
JOSEPH FEUERWERKER, QUINN M. MCHUGH and
ERICAMCHU,
Defendants.
The following papers numbered 1 to read herein Papers Numbered
Notice of Motion/Order to Show Cause/
and Affidavits (Affirmations) Annexed 20-30
Cross Motion and Affidavits (Affirmation) Annexed
Answers/Opposing Affidavits (Affirmations) 37-38· 40-43
Reply Affidavits (Affirmations) 44
Affidavit (Afiirmation)
Other Papers
Plaintiff moves (Seq. I) for an order, pursuant to CPLR § 3212, granting summary
judgment as to defendants' liability; dismissing defendants Quinn M. McHugh and Erica
McHugh's "First", "Sixth", and "Eleventh" affirmative defenses and defendant Joseph
Feuerwerker's affirmative defense of comparative negligence as set forth in the "Sixth"
paragraph of the answer; and for a finding that the defendants were the sole proximate cause
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FILED: KINGS COUNTY CLERK 07/25/2025 INDEX NO. 509495/2025
NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 07/28/2025
of the accident and that plaintiff is free from comparative fault. Defendants oppose the
motion.
BACKGROUND
In this motor vehicle accident case, plaintiff alleges that on January 18, 2024 at about
10: 18 a.m., heavy traffic caused her to come to a stop while traveling west bound on the
Staten Island Expressway (1-278), near Bradley Avenue, in Richmond County, New York.
A few seconds after coming to a stop, plaintiff alleges her vehicle was struck in the rear by
the vehicle owned and operated by defendant Joseph Feuerwerker ("Feuerwerker"). A few
moments after this initial impact, the vehicle operated by defendant Quinn M. McHugh and
owned by defendant Erica McHugh (the "McHughs"), struck the rear of Feuerwerker's
vehicle, thereby causing Feuerwerker's vehicle to lurch forward, striking plaintifrs vehicle
a second time.
On March 21, 2025, plaintiff initiated this action by summons and complaint alleging
she sustained serious perst:mal injuries because of the accident. Issue was joined on April
11, 2025 and May 6, 2025, respectively, when defendants interposed answers.
THE PARTIES' CONTENTIONS \
Plaintiff now moves (Seq. 1) for summary judgment as to liability arguing there is no
non-negligent explanation for defendants' rear-end collisions with plaintiffs stopped
vehicle. On this basis, plaintiff argues the affirmative defenses asserted by defendants must
be dismissed and plaintiff found free from comparative fault. The McHughs contend the
motion is premature as a deposition of plaintiff and the other parties have not been conducted
to ascertain the details of the accident. They further contend, that where plaintiff alleges a
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chain reaction of two impacts and as the police report only references a single impact,
questions of fact are raised as to how the accident occun-ed. Feuerwerker additionally
contends plaintiff cannot rely on the accident repo11 to establish liability, as courts have held
that a report prepared by a police officer who did not ,vitness the accident does not constitute
admissible evidence and in any event, the report is not certified and thus not in admissible
form. Further, Feuerwerker contends the self-serving affidavit from plaintiff is not enough
to establish liability.
In reply, plaintiff argues, among other things, that defendants concede lack of
comparative fault as they do not directly address the issue in the opposition papers.
Additionally, plaintiff argues there is no question of fact as to the McHughs' liability based
on their confirmation that their vehicle struck Feuerwerker's in the rear, and because
J
Feuerwerker does not assert the emergency doctrine as a defense. Plaintiff argues none of
the defendants directly refute plaintiff's claim that her vehicle was fully stopped at the time
of the rear-end impacts. Plaintiff also argues the motion is not premature and that defendants
fail to demonstrate how further discovery would lead to evidence relieving them from
liability.
DISCUSSION
In support of the motion, plaintiff relied primarily on her own affirmation, the Bill of
Particulars and, contrary to Feuerwerker's contention, the certified Police Accident Report.
These submissions, taken together, demonstrate that plaintiffs vehicle was at a complete
I
stop before the rear-end impacts occurred. Plaintiff stated the car ahead of hers came to a
stop in traffic, at which point she brought her vehicle to a complete stop behind it, and that
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NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 07/28/2025
her vehicle never moved again until the time of the initial rear impact. This statement is
confirmed by the Bill of Particulars and the certified Police Accident Report.
Here, plaintiff established primafacie entitlement to judgement as a matter of law on
the issue of liability by demonstrating that she was fully stopped at the time her vehicle was
rear-ended by the vehicle operated by Feuerwerker, which was subsequently struck by the
vehicle operated by defendant Quinn McHugh. It is well established that ' [a] rear-end
1
coll is ion with a stopped or stopping vehicle establishes a prima facie case of negligence on
the part of the operator of the rear vehicle, requiring that operator to come forward with
evidence of a nonnegligent explanation for the collision in order to rebut the inference of
negligence" (Chowdburyv Elshaer, 233 AD3d 1022, 1024 [2d Dept 2024]; Lopez v Dobbins,
164 AD3d 776, 777 [2d Dept 2018]). The plaintiff also established primafacie entitlement
to judgment as a matter oflaw dismissing defendants' affirmative defenses by demonstrating
that she was not comparatively at fault in the happening of the accident (Barr v Canales,
231 AD3d 786, 788 [2d Dept 2024]).
In opposition, defendants failed to raise any triable issues of fact regarding whether
they had a non-negligent explanation for the accident or whether plaintiff was comparatively
at fault in the happening of same (Barr, 231 AD3d at 787; Alvarez v Prospect Hosp., 68
NY2d 320, 324 [1986]).
CONCLUSION
Accordingly, it is hereby
ORDERED, that plaintiffs motion (Seq. 01) for summary judgment on the issue of
liability, is granted; and it is further
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NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 07/28/2025
ORDERED, that defendants Quinn M. McHugh and Erica McHugh's "First",
"Sixth", and "Eleventh" affirmative defenses and defendant Joseph Feuerwerker's
affirmative defense of comparative negligence as set forth in the "Sixth" paragraph of the
answer, are all dismissed; and it is further
ORDERED, that discovery may continue as to the fault to be apportioned between
the co-defendants and on the issue of plaintiff's damages.
This constitutes the decision and order of the Court.
ENTER
-
J.S.C.
HON. WAVNY TOUSSAINT
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