Opinion
16822/14
01-14-2016
Aharon Kroizer and MIRI KROIZER, Plaintiff(s), v. Chaim Einhorn and YESHIVA CHAIM D'BORO PARK, Defendant(s).
Attorney for Plaintiff Lester B. Herzog, Esq. 1729 East 15th Street Brooklyn, NY 11229 (718) 376-7635 Attorney for Defendant Phillip A. Rydz, Esq. Adams, Hanson, Rego & Kaplan 1991 Marcus Avenue, Suite 305 Lake Success, NY 11042 (516) 502-1340
Attorney for Plaintiff Lester B. Herzog, Esq. 1729 East 15th Street Brooklyn, NY 11229 (718) 376-7635 Attorney for Defendant Phillip A. Rydz, Esq. Adams, Hanson, Rego & Kaplan 1991 Marcus Avenue, Suite 305 Lake Success, NY 11042 (516) 502-1340 Francois A. Rivera, J.
Recitation in accordance with CPLR 2219 (a) of the papers considered on the motion of the plaintiffs Aharon Kroizer and Miri Kroizer, filed on November 13, 2014, under motion sequence number two for an order: (1) pursuant to CPLR 3212 granting summary judgment in their favor and (2) for an award of costs, disbursements, and reasonable attorney's fees. - Notice of Motion - Affirmation in Support - Exhibits A - J - Affirmation in Opposition - Reply Affirmation
BACKGROUND
On December 3, 2014, plaintiff commenced the instant action for damages for personal injuries and derivative claims by filing a summons and verified complaint with the Kings County Clerk's office. By joint answer dated December 22, 2014, defendants Chaim Einhorn and Yeshiva Chaim D'Boro Park joined issue. A note of issue has not been filed.
The instant action is to recover damages for personal injuries sustained as a result of a motor vehicle accident. Plaintiff alleges in his complaint and bill of particulars that on December 30, 2013, at approximately 9:00 a.m., he was operating his vehicle on 60th Street, in Brooklyn, New York. At that date and time, Chaim Einhorn (hereinafter Einhorn) was operating a school bus owned by co-defendant Yeshivah Eitz Chaim D' Boro Park traveling on 21st Avenue. Einhorn made a left turn from 21st Avenue onto 60th Street. Einhorn lost control of his vehicle and drove across the oncoming lane of traffic on 60th Street and collided with Kroizer who was traveling in the opposite direction.
LAW AND APPLICATION
It is well established that summary judgment may be granted only when it is clear that no triable issue of fact exists (Alvarez v Prospect Hospital, 68 NY2d 320 [1986]). The burden is upon the moving party to make a prima facie showing that he or she is entitled to summary judgment as a matter of law by presenting evidence in admissible form demonstrating the absence of material facts (Guiffirda v Citibank, 100 NY2d 72 [2003]).
A failure to make that showing requires the denial of the summary judgment motion, regardless of the adequacy of the opposing papers (Ayotte v Gervasio, 81 NY2d 1062 [1993]). If a prima facie showing has been made, the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of material issues of fact (Alvarez v Prospect Hospital, supra, 68 NY2d at 324).
"Pursuant to CPLR 3212 (b) a court will grant a motion for summary judgment upon a determination that the movant's papers justify holding, as a matter of law, "that there is no defense to the cause of action or that the cause of action or defense has no merit." Further, all of the evidence must be viewed in the light most favorable to the opponent of the motion (Marine Midland Bank v Dino & Artie's Automatic Transmission Co., 168 AD2d 610 [1990])" (People ex rel. Spitzer v Grasso, 50 AD3d 535, 544 [1st Dept 2008]).
New York Vehicle and Traffic § 1126 (a) provides: When official markings are in place indicating those portions of any highway where overtaking and passing or driving to the left of such markings would be especially hazardous, no driver of a vehicle proceeding along such highway shall at any time drive on the left side of such markings. The plaintiff established his entitlement to judgment as a matter of law by submitting evidence showing that Einhorn violated Vehicle and Traffic Law § 1126 (a) by crossing over a double yellow line, and thereby caused the collision (Marsicano v Dealer Storage Corp, 8 AD3d 451[2nd Dept 2004]). Einhorn testified that as he was making the left turn a cup of coffee that was on the dashboard of the bus fell and coffee spilled onto his lap. He further testified that do to his shock of the coffee spilling on him he accidentally pressed on the gas rather than the brake after completing the turn, which caused him to cross over the double yellow lines and collide with the plaintiff. Einhorn and Kroizers' testimony establish that Einhorn violated VTL 1126(a) and that plaintiff is free from comparative fault.
As the plaintiffs have met their burden on liability the burden is shifted to the defendants to raise a triable issue of fact (Alvarez v Prospect Hospital, 68 NY2d 320—324 [1986]). This they have not done. The defendant objects to the deposition transcripts relied upon by the plaintiff as they are not sworn to by the deponent. However, the transcripts are certified by the reporter and are, therefore, admissible (see CPLR Rule 3116 [b]). The defendants remaining contentions do not raise a triable issue of fact. Plaintiffs' Motion for Costs , Disbursements and Attorney's Fees
"Under the general rule, attorney's fees are incidents of litigation and a prevailing party may not collect them from the loser unless an award is authorized by agreement between the parties, statute or court rule" (Pickett v 992 Gates Ave. Corp., 114 AD3d 740 [2nd Dept 2014] citing Hooper Assoc. v AGS Computers, 74 NY2d 487, 491 [1989]). Plaintiffs have offered no factual or legal basis for the awarding of attorney's fees.
CPLR 8106 provides that costs upon a motion may be awarded to any party, in the discretion of the court, and absolutely or to abide the event of the action. CPLR 8101 provides that the party in whose favor a judgment is entered is entitled to costs in the action, unless otherwise provided by statute or unless the court determines that to so allow costs would not be equitable, under all of the circumstances (CPLR 8001). The party to whom costs are awarded is entitled to recover reasonable and necessary expenses as are taxable according to course and practice of the court, by express provision of law or by order of the court [CPLR 8301(a)]. Plaintiffs have not obtained a judgment in their favor and are, therefore, not entitled to costs pursuant to CPLR 8101or disbursements pursuant CPLR 8001. The court in an exercise of discretion declines to award cost in connection with the instant motion pursuant to CPLR 8106.
CONCLUSION
Plaintiffs' motion for summary judgment is granted.
Plaintiffs' motion for costs, disbursements and attorney's fees is denied.
The foregoing constitutes the decision and order of this Court. Enter:
J.S.C.