      09-5010-cv
      Kang v. Hertz Vehicles LLC

1                           UNITED STATES COURT OF APPEALS
2                               FOR THE SECOND CIRCUIT

3                                  SUMMARY ORDER
4 RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
5 FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
6 APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
7 IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
8 ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDER"). A PARTY CITING A SUMMARY ORDER
9 MUST   SERVE   A   COPY   OF   IT   ON   ANY   PARTY   NOT   REPRESENTED   BY   COUNSEL.

10    At a stated term of the United States Court of Appeals for the
11    Second Circuit, held at the Daniel Patrick Moynihan United States
12    Courthouse, 500 Pearl Street, in the City of New York, on the
13    5th day of October, two thousand ten.

14    PRESENT:

15                ROBERT D. SACK,
16                REENA RAGGI,
17                GERARD E. LYNCH,

18                             Circuit Judges.

19    --------------------------------------
20     Jea Keng Kang,

21                         Plaintiff-Appellant,

22                 - v -                                           No. 09-5010-cv

23     Hertz Vehicles LLC and Morris
24     Marshall Jr.,

25                         Defendants-Appellees.

26    --------------------------------------


27    Appearing for Appellant:       Sang J. Sim, Sim & Park, LLP, New York,
28                                   N.Y.


29    Appearing for Appellees:       Kent B. Dolan, Lifflander & Reich LLP,
30                                   New York, N.Y.
1         Appeal from a decision and order of the United States
2    District Court for the Eastern District of New York (Raymond J.
3    Dearie, Chief Judge).

4         UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND
5    DECREED that the judgment of the district court be, and it hereby
6    is, VACATED and REMANDED.

 7        Plaintiff-Appellant Jea Keng Kang appeals from the district
 8   court's November 10, 2009, decision and order granting summary
 9   judgment in favor of Defendants-Appellees Hertz Vehicles LLC
10   ("Hertz") and Morris Marshall, Jr., on the plaintiff's claim for
11   negligence and personal injury arising from a motor vehicle
12   accident. We assume the parties' familiarity with the underlying
13   facts, the procedural history of the case, and the issues on
14   appeal.

15        "We review a district court's grant of summary judgment de
16   novo, construing the evidence in the light most favorable to the
17   non-moving party and drawing all reasonable inferences in its
18   favor." Allianz Ins. Co. v. Lerner, 416 F.3d 109, 113 (2d Cir.
19   2005). "[S]ummary judgment is appropriate where there exists no
20   genuine issue of material fact and, based on the undisputed
21   facts, the moving party is entitled to judgment as a matter of
22   law." D'Amico v. City of N.Y., 132 F.3d 145, 149 (2d Cir. 1998);
23   see also Fed. R. Civ. P. 56(c)(2).

24        This case arises from a motor vehicle accident that took
25   place on the Grand Central Parkway in Queens, New York, in
26   October 2006. Kang alleges that while driving on the Parkway,
27   his car was hit near the rear left tire by Marshall's Hertz van,
28   causing Kang's vehicle to spin leftward across several lanes and
29   collide with the concrete barrier dividing the highway from
30   oncoming traffic. Marshall denies causing the accident,
31   contending that Kang's car made impact with the Hertz van only
32   after Kang had already spun out from his lane and bounced off the
33   concrete barrier. In addition to Kang's and Marshall's
34   deposition testimony, the parties submitted evidence on summary
35   judgment in the form of deposition testimony from four non-party
36   passengers who were riding in the Hertz van, each of whom relayed
37   an account of the accident that was similar in most respects to
38   Marshall's.

39        The district court granted summary judgment in favor of the
40   defendants, finding "no evidence from which a reasonable juror
41   could infer that Marshall was speeding, driving erratically, or
42   was otherwise negligent in causing the accident." Kang v. Hertz
43   Vehicles, LLC, No. CV 08-1283 (RJD), 2009 WL 3762648, at *1

                                     2
1    (E.D.N.Y. Nov. 10, 2009). "To the contrary," the court noted,
2    "the uncontroverted record evidence, including the deposition
3    testimony of passengers in Marshall's van at the time of the
4    incident, suggests that Kang, and not Marshall, was speeding and
5    that he caused the accident when he suddenly and without notice
6    cut in front of Marshall's van." Id.

 7        We are sympathetic with what we take to be the district
 8   court's view that the weight of the evidence favors the
 9   defendants' account of how the accident took place. We
10   nonetheless conclude that the evidence presented sufficient
11   disputes of material fact to permit a rational jury to find in
12   favor of the plaintiff. For example, Kang testified that, at the
13   time of the accident, he was driving at a reasonable speed and
14   that he "just went straight without changing any car lanes," when
15   he felt an impact at the left rear of his car, causing his car to
16   spin around and hit the central divider. Joint Appendix 64-65.
17   If the jury believes this testimony, it could reasonably infer
18   that whoever hit Kang's car must have been negligent in doing so,
19   since a reasonable driver does not ordinarily hit a car that is
20   traveling in front of him at a steady speed. Cf. Celentano v.
21   Moriarty, 75 A.D.3d 572, 573, 904 N.Y.S.2d 908, 908 (2d Dep't
22   2010) (noting in an analogous context that "[a] rear-end
23   collision with a stopped vehicle creates a prima facie case of
24   negligence against the operator of the moving vehicle and imposes
25   a duty on that operator to provide a non-negligent explanation
26   for the collision"); Avant v. Cepin Livery Corp., 74 A.D.3d 533,
27   534, 904 N.Y.S.2d 381, 382 (1st Dep't 2010) (same with respect to
28   car stopped at red light).*

29        Although Kang's testimony does not itself establish that
30   Marshall's van was the vehicle that hit his car, deposition
31   testimony by two of the passengers in the Hertz van would support
32   such a finding. Alvin Davis testified that the left side of
33   Kang's car "made contact" with the right side of the Hertz van
34   just before Kang's car spun out in front of the van. Joint
35   Appendix 287-88, 293-94. Luis Cortes testified that Kang was
36   passing the Hertz van on the right when Kang's car "clipped" the
37   van, causing Kang's car to spin out. Joint Appendix 235-36.
38   While both passengers testified that it was Kang who hit the
39   Hertz van, and not the other way around, a reasonable jury could
40   still decide, first, to credit Kang's testimony that he was
41   driving within his lane at a reasonable speed when another
42   vehicle hit his, and second, to infer from the passengers'


          *
            The parties do not dispute that New York law governs
     Kang's negligence claim.
                                     3
1    testimony that the Hertz van was the vehicle that collided with
2    Kang's car, while simultaneously rejecting those passengers'
3    testimony that the collision was Kang's, and not Marshall's,
4    fault. We note that the jury, in evaluating the credibility of
5    these witnesses' testimony, could also choose to give
6    significance to the fact that each of the witnesses who were
7    passengers in the van at the time of the accident were, like
8    Marshall, employees of the defendant Hertz.

 9        In sum, the record contains evidence from several witnesses
10   that a collision took place between the two vehicles prior to
11   Kang's car spinning out. Kang argues that Marshall must have
12   caused this collision, while the van passengers say that Kang was
13   the cause. Both Kang and Marshall testify that they were driving
14   straight in their lanes at a reasonable speed at the time the
15   accident occurred. Yet the fact of an initial collision implies
16   that one party must have deviated in some respect in order to hit
17   the other. Although the evidence in support of Kang's position
18   seems to us to be outweighed by that in support of Marshall's (a
19   perception apparently shared by the district court), "the
20   weighing of the evidence is a matter for the factfinder at trial,
21   not for a court considering a motion for summary judgment."
22   Kaytor v. Elec. Boat Corp., 609 F.3d 537, 550 (2d Cir. 2010).

23        For the foregoing reasons, the judgment of the district
24   court is hereby VACATED and REMANDED for further proceedings.

25                       FOR THE COURT:
26                       Catherine O'Hagan Wolfe, Clerk of Court
27

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