Opinion
Index No. 609409/2020 Mot. Seq. Nos. 001 MotD 002 MotD
02-09-2021
DINO BACELIC, Plaintiff, v. EDWARD W. GORDON and MAX A. GORDON, Defendants.
PLTF S ATTORNEY: OGEN & SEDAGHATI, P.C. DEFTS' ATTORNEY: CARIELLO LAW FIRM
ORIG. RETURN DATE: November 9, 2020
FINAL RETURN DATE: January 19, 2021
ORIG. RETURN DATE: January 19, 2021
FINAL RETURN DATE: January 19, 2021
PLTF S ATTORNEY: OGEN & SEDAGHATI, P.C.
DEFTS' ATTORNEY: CARIELLO LAW FIRM
Paul J. Baisley, Jr., J.S.C.
Upon the following papers read on these e-filed motions for summary judgment and to consolidate: Notice of Motion/ Order to Show Cause and supporting papers by plaintiff, filed October 22, 2020; by defendants, filed December 7, 2020; Notice of Cross Motion and supporting papers; Answering Affidavits and supporting papers by defendants, filed December 4, 2020; by plaintiff, filed January 12, 2021; Replying Affidavits and supporting papers by defendants, filed January 14, 2021; by plaintiff, filed January 18, 2021; Other_; it is
ORDERED that the motion (001) by plaintiff Dino Bacelic and the motion (002) by defendants Edward Gordon and Max Gordon are consolidated for the purpose of this determination; and it is further
ORDERED that the motion by plaintiff for, inter alia, summary judgment in his favor on the issue of defendants' liability is granted in part and denied in part; and it is further
ORDERED that the motion by defendants for an order consolidating this action with the action pending in this Court entitled GEICO General Insurance Company, a/s/o Dino Bacelic, plaintiff, against Edward W. Gordon and Max Gordon, defendants, assigned index number 605959/2020, or, in the alternative, for an order joining the two actions for trial is granted to the extent set forth herein, and is otherwise denied; and it is further
ORDERED that a separate note of issue and bill of costs shall be filed in each action, and that separate court fees shall be paid for each action; and it is further
ORDERED that a preliminary conference shall be held on March 2, 2021.
Plaintiff Dino Bacelic commenced this action to recover damages for personal injuries he allegedly sustained as a result of a motor vehicle accident that occurred on East Jericho Turnpike, near State Place, in Suffolk County, New York, on January 18, 2018. The complaint, filed on July 22, 2020, alleges that a vehicle owned by defendant Edward Gordon, and operated by defendant Max Gordon, collided with plaintiffs vehicle. Prior to the commencement of this action, on May 28, 2020, GEICO General Insurance Company ("GEICO"), as subrogee of Dino Bacelic, commenced a separate action in this Court, assigned index number 605959/2020, to recover payment it made to its insured for damages allegedly caused by defendants as a result of the same motor vehicle accident.
Plaintiff now moves for, inter alia, summary judgment in his favor on the issue of defendants' liability, and an order directing an immediate trial for the assessment of damages. Plaintiff also seeks, in effect, dismissal of defendants' first affirmative defense of culpable conduct and seventh affirmative defense of assumption of risk. In support of his motion, plaintiff submits, among other things, his affidavit and an uncertified police accident report. In opposition, defendants contend, in part, that plaintiffs motion was premature, and that the police accident reported submitted by plaintiff is not in admissible form. In support of their opposition, defendants submit the affirmation of their attorney.
Defendants also move to consolidate this action with the action pending in this Court entitled GEICO General Insurance Company, a/s/o Dino Bacelic, plaintiff, against Edward W. Gordon and Max Gordon, defendants, assigned index number 605959/2020, or, in the alternative, to join the two actions for trial. They argue, among other things, that the two actions arise out of the same motor vehicle accident, and involve common question of law and fact. Defendants also seek to amend the caption for this action. In support of their motion, defendants submit, among other things, a copy of the pleadings for the two actions. In opposition, plaintiff argues, in part, that both actions do not involve common questions of law and fact, and that consolidation would unduly prejudice plaintiff. Plaintiff also claims that GEICO was improperly served with defendants' motion papers by email. In reply, defendants argue, among other things, that GEICO's counsel confirmed service and receipt of their motion, and had no objection to it. Defendants submit emails between their counsel and GEICO's counsel.
A driver of a vehicle approaching another vehicle from the rear must maintain a reasonably safe distance and rate of speed under the prevailing conditions to avoid colliding with the other vehicle (see Vehicle and Traffic Law § 1129 [a]; Capuozzo v Miller, 188 A.D.3d 1137, 2020 NY Slip Op 07026 [2d Dept 2020]; Newman v Apollo Tech Iron Work Corp., 188 A.D.3d 902, 135 N.Y.S.3d 133 [2d Dept 2020]; Yassin v Blackman, 188 A.D.3d 62, 131 N.Y.S.3d 53 [2d Dept 2020]). A rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the operator of the rear vehicle, and thereby requires that operator to rebut the inference of negligence by providing a nonnegligent explanation for the collision (see Doloresv Grandpa's Bus Co., 189 A.D.3d 1539, 135 N.Y.S.3d 295 [2d Dept 2020]; Capuozzo v Miller, supra; Newman v Apollo Tech Iron Work Corp., 188 A.D.3d 902, 135 N.Y.S.3d 133 [2d Dept 2020]). A nonnegligent explanation may include evidence of a mechanical failure, a sudden, unexplained stop of the leading vehicle, an unavoidable skidding on wet pavement, or any other reasonable cause (see Clements v Giatas, 178 A.D.3d 894, 112 N.Y.S.3d 539 [2d Dept 2019]; Grant v Carrasco, 165 A.D.3d 631, 84 N.Y.S.3d 235 [2d Dept 2018]; Tumminello v City of New York, 148 A.D.3d 1084, 49 N.Y.S.3d 739 [2d Dept 2017]). However, a driver who follows another vehicle must anticipate that the leading vehicle may stop, even suddenly and frequently, based on prevailing traffic conditions (see Perez v Persad, 183 A.D.3d 771, 123 N.Y.S.3d 683 [2d Dept 2020]; Fang Xia v Saft, 177 A.D.3d 823, 113 N.Y.S.3d 249 [2d Dept 2019]; Catanzaro v Edery, 172 A.D.3d 995, 101 N.Y.S.3d 170 [2d Dept 2019]). Although a plaintiff is no longer required to show the absence of his or her comparative fault to establish prima facie entitlement to summary judgment on the issue of a defendant's liability, (see Rodriguez v City of New York, 31 N.Y.3d 312, 76 N.Y.S.3d 898 [2018]; Dolores v Grandpa's Bus Co., 189 A.D.3d 1539, 135 N.Y.S.3d 295 [2d Dept 2020]; Abtey v Trivigno, 188 A.D.3d 629, 134 N.Y.S.3d 401 [2d Dept 2020]), the issue of a plaintiffs comparative negligence may be decided in the context of a summary judgment motion where the plaintiff seeks summary judgment dismissing an affirmative defense alleging comparative negligence (see Maliakel v Morio, 185 A.D.3d 1014, 126 N.Y.S.3d 369 [2d Dept 2020]; Balladares v City of New York, 177 A.D.3d 942, 114 N.Y.S.3d 448 [2d Dept 2019]; Poon v Nisanov, 162 A.D.3d 804, 79 N.Y.S.3d 227 [2d Dept 2018]).
Plaintiff established his prima facie entitlement to summary judgment in his favor on the issue of defendant driver's liability (see Newman v Apollo Tech Iron Work Corp., supra; Hall v Powell, 183 A.D.3d 576, 121 N.Y.S.3d 632 [2d Dept 2020]; Rosenblum v Schloss, 175 A.D.3d 1339, 105 N.Y.S.3d 894 [2d Dept 2019]). Although the police accident report submitted by plaintiff and its contents constitute inadmissible hearsay, since the police accident report has not been certified, and a foundation for its admissibility has not been laid by some other method (see Yassin v Blackman, 188 A.D.3d 62, 131 N.Y.S.3d 53 [2d Dept 2020]), plaintiffs affidavit was sufficient to make a prima facie case of entitlement to summary judgment on the issue of defendant driver's negligence. By his affidavit, plaintiff avers that his vehicle was stopped for traffic for approximately three seconds when it was struck in the rear by a vehicle operated by defendant driver (see Newman v Apollo Tech Iron Work Corp., supra; Hall v Powell, supra; Rosenblum v Schloss, supra). In opposition, defendants failed to raise a triable issue of fact as to whether there was a nonnegligent explanation for the accident (see Hall v Powell, supra; Gelo v Meehan, 177 A.D.3d 707, 110 N.Y.S.3d 333 [2d Dept 2019]; Montalvo v Cedeno, 170 A.D.3d 1166, 96 N.Y.S.3d 638 [2d Dept 2019]). Defendants proffered only their attorney's affirmation, which, standing alone, was insufficient to raise a triable issue of fact (see CPLR 3212 [b]; Liu v Lowe, 173 A.D.3d 946, 102 N.Y.S.3d713 [2d Dept 2019]; Morales v Amar, 145 A.D.3d 1000, 44 N.Y.S.3d 184 [2d Dept 2016]).
Plaintiff also demonstrated his prima facie entitlement to summary judgment in his favor on the issue of defendant owner's liability (see Alvarez v Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923 [1986]). Vehicle and Traffic Law § 388 (1) provides that the owner of a motor vehicle is liable for damages resulting from the negligence of one who uses or operates that vehicle with the permission, express or implied, of such owner (see Matter of Allstate Ins. Co. v Jae Kan.Shim, 185 A.D.3d 919, 128 N.Y.S.3d 49 [2d Dept 2020]; Kelly v Starr, 181 A.D.3d 799, 120 N.Y.S.3d 373 [2d Dept 2020]). To impose liability pursuant to Vehicle and Traffic Law § 388 (1), the plaintiff must demonstrate "negligence in the use or operation of the vehicle, and that the negligence was a cause of the injury" (Gray v Air Excel Serv. Corp., 171 A.D.3d 1026, 1028, 98 N.Y.S.3d 259 [2d Dept 2019], quoting Ciminello v Sullivan, 65 A.D.3d 1002,1003, 885 N.Y.S.2d 118 [2d Dept 2009]). The strong presumption of permissive use afforded by Vehicle and Traffic Law § 388 can only be rebutted by substantial evidence demonstrating that the driver of the vehicle was not operating the vehicle with the owner's consent (see Matter of Allstate Ins. Co. v Jae Kan.Shim, supra; Blassberger v Varela, 129 A.D.3d 756, 11 N.Y.S.3d 238 [2d Dept 2015]; Han v BJ Laura &Son, Inc., 122 A.D.3d 591, 996 N.Y.S.2d 132 [2d Dept 2014]). By their verified answer, defendants admit that the vehicle operated by defendant driver was owned by defendant owner (see CPLR 3018 [a]). Thus, defendant driver's negligence can be imputed to defendant owner, through the presumption that defendant driver was operating the vehicle with its express or implied consent (see Vehicle and Traffic Law § 388 [1]; Edwards v J&D Express Serv. Corp., 180 A.D.3d 871, 116 N.Y.S.3d 597 [2d Dept 2020J). In opposition, defendants failed to raise a triable issue of fact with respect to defendant owner's liability (see Abtey v Trivigno, supra', Edwards v J&D Express Serv. Corp., supra).
As to the branch of plaintiffs motion seeking to dismiss defendants' affirmative defenses, when moving to dismiss an affirmative defense, the plaintiff bears the burden of demonstrating that the affirmative defense is without merit as a matter of law because it either does not apply under the factual circumstances of the case, or it fails to state a defense (see Lewis v US Bank N.A., 186 A.D.3d 694, 130 N.Y.S.3d 22 [2d Dept 2020]; Shah v Mitra, 171 A.D.3d 971, 98 N.Y.S.3d 197 [2d Dept 2019]; Wells Fargo Bank, N.A. v. Rios, 160 A.D.3d 912, 74 N.Y.S.3d 321 [2d Dept 2018]). In the context of a motion to dismiss an affirmative defense, if there is any doubt as to the availability of an affirmative defense, it should not be dismissed (see Lewis v U.S. Bank N.A., supra; LG Funding, LLC v United Senior Props, of Olathe, LLC, 181 A.D.3d 664, 122 N.Y.S.3d 309 [2d Dept 2020]; Shah v Mitra, supra).
Plaintiffs submissions were also sufficient to make a prima facie case that he was free from comparative fault (see Lopez v Dobbins, 164 A.D.3d 776, 79 N.Y.S.3d 566 [2d Dept 2018]; Poon v Nisanov, supra; Figueroa v MTLR Corp., 157 A.D.3d 861, 69 N.Y.S.3d 359 [2d Dept 2018]). In opposition, defendants failed to raise a triable issue of fact as to plaintiff s comparative fault (see Lopez v Dobbins, supra; Poon v Nisanov, supra). Plaintiff also demonstrated that the assumption of risk doctrine is not applicable under the circumstances of this action (see Custodi v Town of Amherst, 20 N.Y.3d 83, 957 N.Y.S.2d 268 [2012]; Trupia v Lake George Cent. School Dist., 14 N.Y.3d 392, 901 N.Y.S.2d 127 [2010]). Thus, plaintiffs application to dismiss defendants' first and seventh affirmative defenses is granted.
Contrary to defendants' contention, plaintiffs motion was not premature, as defendants failed to demonstrate how further discovery might reveal or lead to relevant evidence, or that facts essential to oppose the motion were exclusively within plaintiffs control (see Ordonez v Lee, 177 A.D.3d 756, 110 N.Y.S.3d 339 [2d Dept 2019]; Gonzalez v Goudiaby, 177 A.D.3d 656, 109 N.Y.S.3d 890 [2d Dept 2019]; Romain v City of New York, 177 A.D.3d 590, 112 N.Y.S.3d 162 [2d Dept 2019]). As defendant driver has personal knowledge of the relevant facts underlying the accident, the purported need to conduct discovery does not warrant denial of the motion (see Pierre v Demoura, 148 A.D.3d 736, 48 N.Y.S.3d 260 [2d Dept 2017]; Turner v Butler, 139 A.D.3d 715, 32 N.Y.S.3d 174 [2d Dept 2016]). The "mere hope or speculation that evidence sufficient to defeat a motion for summary judgment may be uncovered' by further discovery is an insufficient basis for denying the motion (Lopez v WS Distrib. Inc., 34 A.D.3d 759, 760, 825 N.Y.S.2d 516, 517 [2d Dept 2006]; see Jobson v SM Livery, Inc., 175 A.D.3d 1510, 109 N.Y.S.3d 376 [2d Dept 2019]; Skura v Wojtlowski, 165 A.D.3d 1196, 87 N.Y.S.3d 100 [2d Dept 2018]). Plaintiffs application to set the matter down for an immediate trial for the assessment of damages, however, is denied.
The Court now turns to defendants' motion for consolidation, or, in the alternative, for a joint trial. The determination to grant a motion to consolidate or for a joint trial pursuant to CPLR 602 rests with the sound discretion of the trial court (see Robinson v 47 Thames Realty, LLC, 158 A.D.3d 780, 68 N.Y.S.3d 758 [2d Dept 2018]; Scotto v Kodsi, 102 A.D.3d 947, 958 N.Y.S.2d 740 [2d Dept 2013]). Absent a showing of prejudice to a substantial right by party opposing the motion, a motion to consolidate or for a joint trial should be granted when common questions of law or fact exist (see Robinson v 47 Thames Realty, LLC, supra', Longo v Fogg, 150 A.D.3d 724, 55 N.Y.S.3d 61 [2d Dept 2017]; Bruno v Capetola, 101 A.D.3d 785, 957 N.Y.S.2d 156 [2d Dept 2012]). The interests of justice and judicial economy are better served by consolidation or a joint trial in those actions sharing material questions of law or fact (see Lombardi v Lombardi, 164 A.D.3d 665, 83 N.Y.S.3d 232 [2d Dept 2018]; Bruno v Capetola, supra). However, a motion to consolidate or for a joint trial may be denied when the actions are at markedly different procedural stages (see Cromwell v CRP 482 Riverdale Ave., LLC, 163 A.D.3d 626, 80 N.Y.S.3d 423 [2d Ve&lWM]', Skelly v Sachem Cent. Sch. Dist., 309 A.D.2d 917, 766 N.Y.S.2d 108 [2d Dept 2003]; Cont. Bldg. Co. v Town of N. Salem, 150 A.D.2d 518, 541 N.Y.S.2d 112 [2d Dept 1989]).
Here, a joint trial of the two actions is appropriate, as they arise out of same motor vehicle accident, and involve common questions of law and fact (see Oboku v New York City Tr. Auth., 141 A.D.3d 708, 35 N.Y.S.3d 710 [2d Dept 2016]; Whiteman v Parsons Transp. Group of N. Y, Inc., 72 A.D.3d 677, 900 N.Y.S.2d 87 [2d Dept 2010]; Mas-Edwards v Ultimate Servs., Inc,, 45 A.D.3d 540, 845 N.Y.S.2d 414 [2d Dept 2007]). A joint trial will avoid unnecessary duplication of proceedings, save unnecessary costs and expenses, and prevent the injustice which would result from divergent determinations based on the same facts (see Oboku v New York City Tr. Auth., supra'. Mas-Edwards v Ultimate Servs,, Inc., supra). Although defendants moved for consolidation of the actions, the more appropriate method of achieving that purpose is a joint trial, particularly since the actions involve different plaintiffs (see Whiteman v Parsons Transp. Group of N. Y, Inc., supra', Mas-Edwards v Ultimate Servs., Inc., supra). Moreover, plaintiff, in opposing the motion, failed to demonstrate prejudice to a substantial right if the actions are tried jointly (see Mas-Edwards v Ultimate Servs., Inc., supra). Plaintiffs argument that GEICO was improperly served with defendants' motion is unavailing. Defendants have submitted an email by GEICO's counsel confirming receipt of their motion and memorializing that there was no opposition to it. Thus, the two actions will be joined for trial. In light of the Court's determination, defendants' application to amend the caption as proposed is denied.
Accordingly, the motion by plaintiff and the motion by defendants are granted in part and denied in part.