Opinion
Index No. 605486/15 Mot. Seq. No. 001
01-07-2016
GRACE TAYLOR, Plaintiff, v. KERRI OBRIEN, Defendant.
Attorneys for Plaintiff Bergman, Bergman, Goldberg, Fields & Lamonsoff, LLP By: Allen Goldberg, Esq. Attorneys for Defendant Russo, Apoznanski & Tambasco By: Peter Mayer, Esq.
Unpublished Opinion
Mot. Date: 12-22-15
Submit Date: 12-22-15
Attorneys for Plaintiff
Bergman, Bergman, Goldberg, Fields & Lamonsoff, LLP
By: Allen Goldberg, Esq.
Attorneys for Defendant
Russo, Apoznanski & Tambasco
By: Peter Mayer, Esq.
Daniel Palmieri Judge
The following papers have been read on this motion:
Notice of Motion, dated 11-10-15 ............................................................... l
Affirmation in Opposition, dated 12-10-15 ............................................... 2
Reply Affirmation, dated 12-10-15 ............................................................. 3
The plaintiffs motion for summary judgment pursuant to CPLR §3212 is granted on the issue of liability or fault only.
The granting of summary judgment on the issue of liability or fault, does not include a determination of plaintiff's claim of serious injury as defined in article 51 of the Insurance Law. VanNostrand v. Froehlich, 44 A.D.3d 54 (2d Dept. 2007); Abbas v. Cole, 44 A.D.3d 31 (2d Dept. 2007); Zecca v. Riccardelli, 293 A.D.2d 31 (2d Dept. 2002).
This case arises out of a motor vehicle accident which took place on December 18, 2014 on westbound on the Northern State Parkway in Nassau County, N.Y.
Plaintiff states she was stopped in heavy traffic for "about five seconds" when struck in the rear by defendant. Defendant has submitted only an affirmation of her attorney who has not offered any excuse or reason why there is no affidavit from someone with knowledge of the event.
It is well settled that an attorney's affirmation that is not based on personal knowledge or supported by documentary evidence is of no probative value. Warrington v. Ryder Truck Rental, Inc., 35 A.D.3d 455 (2d Dept. 2006); Sampson v. Delaney, 34 A.D.3d 349 (1st Dept. 2006); cf. Davey v. Dolan, 46 A.D.3d 854 (2d Dept. 2007). Here, defendant's attorney does not profess to possess personal knowledge of any facts asserted and has not employed his affirmation as a vehicle to refer to other competent evidence.
It is well settled that summary judgment is a drastic remedy which should not be granted where there is any doubt about the existence of a triable issue of fact. Bhatti v. Roche, 140 A.D.2d 660 (2d Dept. 1988). It is nevertheless an appropriate tool to weed out meritless claims. Lewis v. Desmond, 187 A.D.2d 797 (3d Dept. 1992); Gray v. Bankers Trust Co. of Albany, N A., 82 A.D.2d 168 (3d Dept. 1981). Even where there are some issues in dispute in the case which have not been resolved, the existence of such issues will not defeat a summary judgment motion if, even when the facts are construed in the nonmoving party's favor, the moving party would still be entitled to relief. Brooks v. Blue Cross of Northeastern New York Inc., 190 A.D.2d 894 (3d Dept. 1993).
Generally speaking, to obtain summary judgment it is necessary that the movant establish its claim or defense by the tender of evidentiary proof in admissible form sufficient to warrant the court, as a matter of law, in directing judgment in its favor. CPLR 3212 (b). In negligence cases, there may be more than one proximate cause of the injury-causing occurrence (Lopez v Reyes-Flores, 52 A.D.3d 785 [2d Dept. 2008]), and thus the proponent of the motion must establish freedom from comparative negligence as a matter of law. Pollack v Margolin, 84A.D.3d 1341 (2d Dept. 2011). Absent this initial showing, the court should deny the motion, without passing on the sufficiency of the opposing papers. Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851 (1985).
If such & prima facie case is made, the burden shifts to the nonmoving party. To defeat the motion for summary judgment, the opposing party must come forward with evidence to demonstrate the existence of a material issue of fact requiring a trial. CPLR 3212 (b); see also GTF Marketing, Inc. v. Colonial Aluminum Sales, Inc., 66 N.Y.2d 965 (1985); Zuckerman v. City of New York, 49 N.Y.2d 557 (1980). The nonmoving party must lay bare all of the facts at its disposal regarding the issues raised in the motion. Mgrditchian v. Donato, 141 A.D.2d 513 (2d Dept. 1988). Conclusory allegations are insufficient (Zuckerman v. City of New York, supra), and the defending party must do more than merely parrot the language of the pleadings or bill of particulars. There must be evidentiary proof in support of the allegations. Fleet Credit Corp. v. Harvey Hutter & Co., Inc., 207 A.D.2d 380 (2d Dept. 1994); Toth v. Carver Street Associates, 191 A.D.2d631 (2d Dept. 1993).
On such a motion the court must draw all reasonable inferences in favor of the nonmoving party. Nicklas v Tedlen Realty Corp., 305 A.D.2d 385 (2d Dept. 2003); Rizzo v. Lincoln Diner Corp., 215 A.D.2d 546 (2d Dept. 1995). The role of the court in deciding a motion for summary judgment is not to resolve issues of fact or to determine matters of credibility, but simply to determine whether such issues of fact requiring atrial exist. Dyckman v. Barrett, 187 A.D.2d 553 (2d Dept. 1992); Barr v. County of Albany, 50 N.Y.2d 247, 254 (1980); James v. Albank, 307 A.D.2d 1024 (2d Dept. 2003); Heller v. Hicks Nurseries, Inc., 198 A.D.2d 330 (2d Dept. 1993). The Court need not, however, ignore the fact that an allegation is patently false or that an issue sought to be raised is merely feigned. Sexstone v. Amato, 8 A.D.3d 1116 (4th Dept. 2004). The Court may also search the record and grant summary judgment in favor of a nonmoving party with respect to a cause of action or issue that is the subject of a motion for summary judgment without the necessity of a cross-motion. CPLR 3212(b); Katz v. Waitkins, 306 A.D.2d 442 (2d Dept. 2003).
A rear-end collision with a stopped or stopping vehicle creates a prima facie case of negligence with respect to the operator of the rearmost vehicle, and the party who was struck from behind may thus establish entitlement to judgment as a matter of law that he/she was not responsible for the accident. Sehgal v. www.nvairportsbus.com, Inc, 100 A.D.3d 860 (2d Dept. 2012); Smith v. Seskin, 49 A.D.3d 628 (2d Dept. 2008); Francisco v. Schoepfer, 30 A.D.3d 275 (1st Dept. 2006); Velasquez v. Denton Limo Inc., 7 A.D.3d 787 (2d Dept. 2004); see also Schmidt v. Guenther, 103 A.D.3d 1162 (4th Dept. 2013). Accordingly, plaintiff has made out a prima facie showing that he/she is entitled to summary judgment as to defendant.
Once a prima facie showing has been made the burden is on the operator of the moving vehicle to rebut the inference of negligence by providing a non negligent explanation for the collision. Katz v. Masada II Car & Limo Service, Inc., 43 A.D.3d 876, 877 (2d Dept. 2007).
A driver of a vehicle approaching another vehicle from the rear is required to maintain a reasonably safe rate of speed and control over his or her vehicle and to exercise reasonable care to avoid colliding with the other vehicle. Vavoulis v. Adler, 43 A.D.3d 1154 (2d Dept. 2007); Velasquez v. Denton Limo Inc., 7 A.D.3d 787 (2d Dept. 2004). The following vehicle is under a duty to maintain a safe distance between his vehicle and the vehicle ahead. Vehicle and Traffic Law section 1129 [a], Leal v. Wolff, 224 A.D.2d 392 (2d Dept. 2005).
Applying these well-established standards to the case at bar, the Court finds that the plaintiff has made out a claim for summary judgment as to the issue of liability or fault. Defendant has not met her burden of providing a non negligent explanation for the accident. It is not disputed that plaintiff was fully stopped at impact. Cheow v. Jin, 121 A.D.3d 1058 (2d Dept. 2014). Cf Spinosa v. Golden Touch Transportation of NY, 122 A.D.3d 916 (2d Dept. 2014). Romero v. AL Haag & Son Plumbing & Heating, Inc., 113 A.D.3d 746 (2d Dept. 2014). Moreover, vehicle stops which are foreseeable under prevailing traffic conditions, even if sudden and frequent must be anticipated by the driver who follows since he/she is under a duty to maintain a safe distance. Robayo v Aghaabdul, 109 A.D.3d 892 (2d Dept. 2013).
The contention of defendant that the motion should be denied because discovery has not been completed is without merit. A motion for summary judgment may be opposed with the claim that facts essential to justify opposition may exist but that such material facts are within the exclusive knowledge and possession of the moving party. CPLR §3212(f). However, the opposing party must make an evidentiary showing supporting this conclusion and not base the need for further discovery on speculation or conjecture. Firth v. State, 287 A.D.2d 771 (3d Dept. 2001); Urcan v. Cocarelli, 234 A.D.2d 537 (2d Dept. 1996). Defendant has not submitted sufficient evidence to support her contention that further discovery will alter the result here.
Although defendant claims that there has been no response to its demands for a bill of particulars a perusal of the demand reveals two thirds of the questions go to the issue of damages which remains open and in contention and at least nine of the 30 questions are answered or addressed in the moving papers.
The Court has not considered the police accident report signed by the investigating officer because although certified, does not give the source of the information and does not state that it is based on the observations of the officer. See generally, Rodriguez v. Ryder Truck, Inc., 91 A.D.3d 935 (2d Dept. 2012); Toussaint v. Ferrara Bros. Cement Mixer, 33 A.D.3d 991 (2d Dept. 2006); Liguori v. City of New York, 250 A.D.2d 738 (2d Dept. 1998). Although it has been held that an admission of a party to a police officer may be considered as such (Guevara v. Zaharakis, 303 A.D.2d 555 [2d Dept. 2003]) here as noted above the police report does not give the source of the statement. Aetna Casualty & Surety Company v Stone, 170 A.D.2d 599 (2d Dept. 1991).
All parties shall appear at a preliminary conference at the Supreme Courthouse, 100 Supreme Court Drive, Mineola, N. Y., on February 25,2016, at 9:30 a.m., lower level. No adjournments of this conference will be permitted without permission of this Court. All parties are forewarned that failure to attend the conference may result in Judgment by Default, the dismissal of pleadings (see 22 NYCRR 202.27) or monetary sanctions (22 NYCRR 130-2.1 et seq.).
All requests or contentions not specifically addressed are deemed denied.
This shall constitute the Decision and Order of this Court.