Mitchell v Abraham

[*1] Mitchell v Abraham 2011 NY Slip Op 51275(U) Decided on July 8, 2011 Supreme Court, Queens County Markey, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 8, 2011
Supreme Court, Queens County

Shanalee Mitchell, Plaintiff,

against

Jessica Abraham et al., Defendants.



6037/2011

 

For the Plaintiff: Russo, Daniel & Ladato, LLP, 1975 Hempstead Turnpike, East Meadow, NY 11554 [no papers submitted on this motion]

For the Defendants Jessica Abraham and Gary A. Smith: Kim, Patterson & Sciarrino, P.C., by Jerome D. Patterson, Esq., 42-40 Bell Blvd., Bayside, New York 11361

For the Defendants Marie Guirlane Edouard and Edith F. Edouard: Adams, Hanson, Finder, Hughes, Rego, Kaplan and Fishbein, by James P. McCarthy & Matthew Rego, Esqs., 1991 Marcus Ave., Lake Success, NY 11042

Charles J. Markey, J.

Defendants Marie Guirlane Edouard and Edith F. Edouard ("Edouard") move for summary judgment contending that the accident occurred solely as a result of the negligence of the co-defendants Jessica Abraham and Gary A. Smith. Edith Edouard has averred that she was operating a vehicle on 118th Avenue in Queens County, when the vehicle operated by co-defendant Gary A. Smith failed to stop at a stop sign. Co-defendant Gary Smith ("Smith"), in his opposing affidavit, insists that he stopped at a stop sign and that the vehicle operated by Edouard was travelling at "an extremely high rate of speed."

Just recently, in Gallagher v McCurty, ___AD3d ____, 2011 WL 2573571, 2011 NY Slip Op 05663 [2nd Dept. June 28, 2011], wherein the trial court granted a motion for summary [*2]judgment where one party attempted to create an issue of fact by accusing the other party of travelling too fast, the appellate court stated:

The defendant made a prima facie showing of his entitlement to judgment as a matter of law by presenting evidence that he entered the intersection with the right-of-way, and that, by failing to yield, the plaintiff violated Vehicle and Traffic Law § 1142(a), which constituted negligence as a matter of law ( see, Thompson v. Schmitt, 74 AD3d 789; McCain v. Larosa, 41 AD3d 792, 793; Gergis v. Miccio, 39 AD3d 468). As the driver with the right-of-way, the defendant "was entitled to anticipate that the plaintiff would obey traffic laws which required her to yield" ( Yelder v. Walters, 64 AD3d 762, 764; see, Thompson v. Schmitt, 74 AD3d at 790; Klein v. Crespo, 50 AD3d 745, 745—746). In opposition, the plaintiff's contention that the defendant was traveling at an excessive rate of speed was conclusory and speculative, and, on this record, failed to raise a triable issue of fact (see, Thompson v. Schmitt, 74 AD3d at 790; Yelder v. Walters, 64 AD3d at 765; McCain v. Larosa, 41 AD3d at 793).

The present action is different in that co-defendant Gary A. Smith insists in his affidavit that he stopped at the stop sign. Whether Smith is being truthful or not is a matter of credibility that should await discovery and trial before a trier of fact. In this regard, the Court notes that no examinations before trial have been taken.

Finally, despite references by all defendants to plaintiff's cross motion for summary judgment, the fact remains that no cross motion was brought to the courtroom with proof that a fee was paid.

The parties, on the face of this record, with conflicting versions and hinging on credibilty determinations, should await full discovery on the facts and circumstances of this case before burdening the Court with summary judgment motions.

The foregoing constitutes the decision, order, and opinion of the Court.

______________________________Hon. Charles J. Markey

Justice, Supreme Court, Queens County

Dated: Long Island City, New York

July 8, 2011