Trombettas v Ingargiola

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Trombettas v Ingargiola 2012 NY Slip Op 30358(U) January 30, 2012 Supreme Court, Nassau County Docket Number: 1737/10 Judge: Denise L. Sher Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SCAN SHORT FORM ORDER SUPREME COURT OF THE STATE OF NEW YORK PRESENT: RON. DENISE L. SHER Acting Supreme Cour Justice TRIL/IAS PART 31 NASSAU COUNTY ELlA TROMBETTAS Plaintiff Index No. : 1737/10 Motion Seq. No. : 03 Motion Date: 01/06/12 - against - M INGARGIOLA and MAUREEN INGARGIOLA Defendants. The followine papers have been read on this motion: Papers Numbered Notice of Motion Affirmation and Exhibits and Memorandum of Law Affrmation in O osition and Exhibits Reply Affirmation 3212 , for an order granting them sumar Defendants move , pursuant to CPLR judgment dismissing plaintiff s Verified Complaint on the ground that there are no material issues of fact with regard to any alleged negligence against them. Plaintiff opposes the motion. This action arises out of a motor vehicle accident that occured on October 25 , 2009 , at approximately 5:30 p. , on Ocean Avenue , north of Route 27 , Lynbrook , Nassau County, New York. The accident involved two vehicles , a 1999 Mitsubishi convertible owned and operated by plaintiff and a 2008 Nissan owned by defendant Maureen Ingargiola and operated by defendant M. Ingargiola. Plaintiff commenced the action by the filing and service of a Sumons and Verified Complaint on or about Januar 9, 2010. Issue was joined on or about March 10 2010. It [* 2] is alleged that plaintiff was in the process of makng a left tur over a double yellow line on Ocean Avenue into a parking lot when her vehicle came into contact with defendants ' vehicle which was traveling in the adjacent lane from the opposite direction. Plaintiff claims that when her vehicle made the tu it was ten feet in front of defendants ' oncoming vehicle. Defendants submit that "the Police Accident Report states: ' Vehicle # 1 (Trombettas) while attempting to make a left tur into a private parking lot did strke vehicle #2 (Ingargiola). As to contributory fault Failure to Yield Right of Way ' is assessed against defendant." See Defendants ' Affirmation in Support Exhibit D. Defendants argue that " (iJt is not controverted that plaintiff crossed a double yellow line ten feet in front of plaintiff s oncoming vehicle which was proceeding legally at 20 to 25 miles per hour. Therefore , no material issues of fact exist , and plaintiff canot demonstrate , as a matter of law, that defendants were in any maner negligent. Plaintiff has the burden of proof to demonstrate that defendants were negligent and that defendant' (sic) negligence was a substantial factor in causing the accident." Defendants contend that the only negligence was that of plaintiff. In opposition to defendants ' motion , plaintiff argues that there are issues of material fact regarding how the subject accident occured. Plaintiff submits that the drivers of both vehicles involved in the accident " offered diametrically different versions of how this accident occured. Plaintiff adds (s Jtated differently, both plaintiff and driver- defendant believe that the other entered into their lane for oncoming traffic at the time of the impact. For example , Ms. Trombetts testified that at the time of the impact between the two vehicles , her car was withn her land of travel and stopped on Ocean Avenue. (Trombettas EBT p. 31). This , of course ," [* 3] facially conflcts with the testimony of the driver-defendant who stated that Ms. Trombettas (sic) vehicle entered into her lane (i. on-coming traffic) on Ocean Avenue (Ingargiola EBT p. 32).... Against this backdrop, defendants ' contention that the maner in which this accident occured is ' not controverted' is belied by the testimony of the two paries. There is absolutely no consensus on which vehicle was in the other vehicle s lane on Ocean Avenue at the time (sic) impact. " Plaintiff fuher argues that contrar to the assertion of defense counsel - Ms. Trombettas has provided a photograph of the accident location showing that Ocean Avenue, in her direction of travel did not have a solid double yellow line separating the opposite direction of travel." Plaintiff submits a photograph of the location of the accident to demonstrate that, at the location of the accident , there was a left arow painted on the ground. See Plaintiff s Affirmation in Opposition Exhibit C. Plaintiff also contends that even if the defendant- drver s version of the accident were (sic) accepted as tre , there would stil be a reasonable basis to find comparative fault against the defendant driver.... the testimony of the defendant- driver provides a reasonable basis to infer that she did not see a vehicle traveling in front of her or was otherwise traveling at a rate of speed in excess to that which was reasonable under the rainy conditions. As the driver- defendant had thirt seconds to bring her vehicle to a stop to avoid the impact and did not, an issue of fact exists as to whether the driver- defendant' s operation of her car was a substantial factor in causing the accident." It is well settled that the proponent of a motion for sumar prima facie judgment must make a showing of entitlement to judgment as a matter of law by providing sufficient [* 4] 3 N. Y.2d Fox Film Corp. Y.2d 320 395 , 165 N. Y.S.2d 508 N. Y.S.2d 923 (1986); v. Bhatti S.2d 595 (1980); v. See Silman evidence to demonstrate the absence of material issues of fact. Alvarez 498 (1957); v. Zuckerman v. Twentieth Century- Prospect Hospital, 68 49 N. Y.2d 557, 427 City of New York, Roche 140 A.D.2d 660 528 N. Y.S.2d 1020 (2d Dept. 1988). To obtain sumar judgment , the moving par must establish its claim or defense by tendering sufficient evidentiar proof, in admissible form , sufficient to warant the cour , as a matter of See Friends of Animals, Inc. law , to direct judgment in the movant's favor. Mfrs., Inc. 46 N. 2d 1065 416 N. v. 64 N. Y.2d Farrell Lines Inc., prima facie If a suffcient Associated Fur S.2d 790 (1979). Such evidence may include deposition transcripts , as well as other proof anexed to an attorney Olan v. 1092 See s affrmation. CPLR ~ 3212 (b); 489 N. Y.S. 2d 884 (1985). showing is demonstrated , the burden then shifts to the non-moving par to come forward with competent evidence to demonstrate the existence of a material issue of fact , the existence of which necessarily precludes the granting of sumar See Zuckerman judgment and necessitates a trial. 49 N. City of New York, 2d 557; 427 When considering a motion for sumar judgment, the fuction of supra. S.2d 595 (1980), v. the cour is not to resolve issues but rather to determine if any such material issues of fact exist. v. See Silman supra. Twentieth Century- Fox Film Corp. 3 N. Y.2d 395 , 165 N. 2d 498 (1957), Mere conclusions or unsubstantiated allegations are insufficient to raise a triable issue. v. See Gilbert Frank Corp. Federal Ins. Co. 70 N. 2d 966 525 N. Y.S. 2d 793 (1988). Furher , to grant sumar judgment , it must clearly appear that no material triable issue of fact is presented. The burden on the cour in deciding this tye of motion is not to resolve issues of fact or determine matters of credibilty, but merely to determine whether such issues exist. See Barr v. Albany County, 50 N. Y.2d 247 428 N. S.2d 665 (1980); Daliendo [* 5] Johnson 147 A. D.2d 312 543 N. Y.S.2d 987 (2d Dept. 1989). It is the existence of an issue , not See Barrett its relative strength that is the critical and controllng consideration. Y. 520 (1931); v. Cross Cross 112 AD.2d 62 , 491 N. 156 249 N. precludes sumar against. See Weiss S.2d 458 (3d Dept. 1964); Defendants , in their motion , have demonstrated judgment. Therefore , Jacobs , 255 S.2d 353 (1st Dept. 1985). The evidence should be constred in a light most favorable to the par moved Garfield 21 AD. 2d v. prima facie entitlement to sumar the burden shifts to plaintiff to demonstrate an issue of fact which judgment. v. See Zuckerman City of New York 49 N. Y.2d 557 , 427 N. Y.S.2d 595 (1980). It is the existence of an issue , not its relative strength that is the critical and controllng consideration in the determination of a sunar Y. 520 (1931); Cross v. Cross 112 AD. , 491 N. granted in negligence cases. S.2d 458 (3d Dept. 1964). See Connell v. Jacobs , 255 S.2d 353 (1st Dept. 1985). The evidence should be constred in a light most favorable to the par moved Garfield 21 AD.2d 156 249 N. v. See Barrett judgment motion. against. See Weiss Summar judgment is rarely Buitekant 17 AD. 2d 944 , 234 N. S.2d 336 (1 Dept. 1962). After applying the law to the facts in this case , the Cour finds that plaintiff has met her burden and demonstrated issues of fact which preclude sumar judgment. As previously stated in rendering a decision on a summar judgment motion , the Cour is not to resolve issues of fact or determine matters of credibilty. The Cour finds that the facts and circumstaces surounding the motor vehicle accident do indeed involve determining the credibilty of the paries involved in said accident. The Cour holds that the paries ' conflcting versions of the accident raise triable issues of fact. [* 6] Therefore , based upon the foregoing, defendants ' motion , pursuant to CPLR ~ 3212 an order granting them summar judgment dismissing plaintiffs Jor Verified Complaint on the ground that there are no material issues of fact with regard to any alleged negligence against them is hereby DENIED. All paries shall appear for Trial in Nassau County Supreme Cour, Differentiated Case Management Part (DCM) at 100 Supreme Cour Drive , Mineola , New York, on Februar 6 2012, at 9:30 a. This constitutes the Decision and Order of this Cour. Dated: Mineola , New York Januar 30 , 2012 ENTERED FEB 022012 N4SSAU COUNTY CIUNTYILEH" ,"IIE

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