Young v Wagner

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Young v Wagner 2012 NY Slip Op 32928(U) December 3, 2012 Sup Ct, Suffolk County Docket Number: 32949/2010 Judge: Ralph T. Gazzillo 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] Index No : 32949/20 1 0 SIIOR'T FORM ORDER Supreme Court - State of New York IAS PART 6 - SUFFOLK COUNTY MOTION DATE: ADJ. DATE: MOT. SEQ: 07-1 8-2012 09-06-2012 002 MD PRESENT: Hon. RALPH T. GAZZILLO A.J.S.C. ___-____-_--__-_--__-----------------------------_------------X Linda Young. Plaintiff( s), - against - Melissa Wagner, Dorothy Konchar, Michael Milo and Stephen Milo, IJpon the following papers numbered 1 to 29 read on this motion pursuant to CPLR $3212; Notice of Motion and supporting papers numbered 1-17; Affirmation in Opposition and supporling papers numbered 18-20; Affirmation in Opposition and supporting papers numbered 2 1-23; Affirmation in Opposition and supporting papers numbered 24-26; Replying Affidavits and supporting papers numbered 27-29; it is, ORDERED that the motion (seq 002) by plaintiff for partial summary judgment on the issue of liability is denied with respect to all defendants Konchar and Wagner; and it is further ORDERED that counsel for movant shall serve a copy of this Order with Notice of Entrj upon counsel for all other parties, pursuant to CPLR $$2103(b)( l), (2) or ( 3 ) , within thirty (30) dlays of the date the order is entered and thereafter file the affidavitts) of service with the Clerk of the Court. Plaintiff, Linda Young, commenced this action to recover damages for personal injuries arising froin three separate motor vehicle accidents that she was involved in during 2010. Chronologically speaking, the first accident involved plaintiff and defendant Michael Milo on January 10, 201 0 when Milo (driving a vehicle owned by defendant Stephen Milo) hit plaintiff in a parking lot of an Ainoco gasoline station as he was exiting the gasoline pump area at 2 West Montauk Highway in Babylon. Tlic second accident took place on May 24, 20 10 when defendant Melissa Wagner allegedly rear-ended plaintiff while heading westbouiid on Montauk Highway in West Babylon. The last accident, involving plaintiff and defendant Dorothy Konchar, took place on August 1 3, 20 10 at the intersection of Eighth Street and Montauk Highway in Babylon after defendant Koiichar allegedly ran a stop sign at the intersection. [* 2] Plaintiff now moves for sunimary judgment in her favor on the issue of liability against all three defendants essentially alleging that the defendants have no lion-negligent explanation for striking her vehicle in each of the aforementioned accidents. With respect to the January 10, 20 10 accident, plaintiff testified at her deposition that she was operating her in the parking lot of the Ainoco gas station headed straight towards the convenience storc when she was struck in the driver s side door by defendant Michael Milo. Plaintiff further asserts that defendant Michael Milo testified that at the time of the accident, he was not looking forward and did not see plaintiff s vehicle prior to the impact. Defendant Michael Milo opposes the motion asserting that because of plaintiffs failure to take an evasive action raises triable issues of fact as to the plaintiffs negligence. Specifically; defendant Milo points to plaintiffs deposition testimony wherein she testified that [als I was going straight, he hit me .. In addition, plaintiff testified that she observed defendant Milo s vehicle while proceeding into the parking lot, but did not see the vehicle Defendant Milo asserts that this statement shows that the plaintiff failed to act reasonably to avoid the collision. The proponcnt of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (see, Alvarez v Prospect Hosp., 68 NY2d 320, 508 NYS2d 923 [1986]; Winegrad v New York Univ. Med. Center, 64 NY2d 85 1, 487 NYS2d 3 I6 [ 19851; Zuckerman v Ct of New York, 49 NY2d 557,427 NYS2d 925 [1980]). Failure to make such prima facie iy showing requires a denial of the motion, regardless of the sufficiency of the opposing papers bee, Ahiarez v Prospect Hosp., supra; Winegrad v New York Univ. Med. Center, supra). Once this showing has been made, however, the burden shifts to the party opposing the motion for summary .judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action (see, Alvavez v Prospect Hosp., supra; Zuckerinnn City of New Yovk, s u p ~ a ) . IJ Here, the conflicting deposition testimony of the parties as to the happening of the accident raises issucs of credibility which may not be resolved on a summary judgment motion (see Gordm v Honig, 40 AD3d 925, 837 NYS2d 197 120071;Ahr v Karolewski, 48 AD3d 719,853 NYS2d 172 [2008): Kdivns v Kirclzqffi 14 AD3d 493, 787 NYS2d 392 [2005]).Moreover, there are several triable issues of fact as to where the impact actually occurred and whether plaintiff failed to act reasonably under the circumstances. Therefore, plaintiff has failed to sustain the initial burden of establishing a prima facie entitlement to judgment as a matter of law. Accordingly, the portion of motion by plaintiff which is directed at defendant Milo for suininary judgment is denied. With respect to the May 24, 201 0 accident, plaintiff alleges that defendant Wagner rear- ended her vehicle while both vehicles were heading westbound on Montauk Highway. Plaintiff testified that the rcason she stopped her vehicle was due to a family of geese crossing the roadway. Defendant Wagner testified that the plaintiff came to a sudden stop twice just after traffic had [* 3] Young ii Wagner, et ai hdi92 NO 3294912010 Page 3 of $ stopped for a rcd light. Thereafter, defendant Wagner testified that her vehicle slid into the p I a i lit i f f s vehicle. Arear-end collision with a stopped or stopping vehicle creates a prima facie case of liability with respect to the operator of the rearmost vehicle, thereby requiring that operator to rebut the inference of negligence by providing a nonnegligent explanation for the collision (citations omitted). One of several nonnegligent explanations for a rear-end collision is a sudden stop of the lead vehicle (Chepel v Meyers, 306 A.D.2d 23, 237). Although thc rear driver is bound to maintain a reasonably safc rate of speed and control over his vehicle to avoid colliding with a vehicle in front of his (see Power v Hupart, 260 AD2d 458; VTI, 5 1 129[a]), drivers are also duty bound not to stop suddenly or to slow down without proper signaling in order to avoid a collision from thc rear (see Chepel v Meyers, 306 AD2d 235; Purcell v Axclsen, 286 AD2d 379; Coloniia v Suarez, 278 AD2d 355). A situation in which the forward driver stopped suddenly or slowed down quickly without proper signaling qualifies as a non-ncgligent explanation for a rear-end collision (see Chepel 1) Meyers, 306 AD2d 23 5 ; Filipptzzzo v Santiago, 277 AD2d 4 19; Power v Huparf, 260 AD2d 458). Moreover. the issue of whether debris (in this case geese) in roadway caused an emergency situation (resulting in the front car stopping short) is usually a question for the trier of fact (Haider u. Zadrozuly, 61 AD3d 1077; Schlanger v. Doe, 53 AD3d 827). On the record before the court on this motion, there are contradictory versions of how this accident occurred. Consequently, there are material issues of fact requiring a trial (see Zuckerman v City of New York, 49 NY2d 557). With regard to the August 13?20 10 accidcnt, plaintiff alleges that defendant Konchar ran a stop sign at the intersection of Eighth Street and Montauk Highway and therefore was the sole cause of the collision with the plaintiff entitling plaintiff to summary judgment on the issue of liability with rcspect to defendant Konchar. Dcfendant s counsel does not dispute that defendant Konchar was partially responsible for the collision, but argues that plaintiffs failure to exercise reasonable care to avoid a collision may require her to be held to be partially at fault for tlie accident. In support of Konchar s position, counsel submits the sworn deposition testimony of plaintiff wherein the plaintiff acknowledges first seeing def endant Konchar s vehicle when approaching the intersection of 6thStreet with Montauk ITighway. Plaintiff testified that she was in the left lane of Montauk Highway and remained in thiU lane traveling at a speed of 40 mph and did not slow down, change lanes or taking another evasive action to avoid the impact with Ms. Koncliar s vehicle. Furthermore, Konchar claims that the fact that plaintiffs vehicle flipped over following the impact, makes it likely that plaintiff was traveling at an excessive rate of speed. Accordingly, defendant argues that these issues preclude the Court from granting partial summary judgment to plaintiff. Although defendant Konchar has acknowledged partial liability with respect to tlie collision, [* 4] Yoirng v Wagner, e l a1 Iridex No 32949/2010 I agr 4 of 4 it appears that there is a question of fact with regard to whether plaiiitifi s failure to take any ev,a:;ive action contributed to the accident. Plaintiffs testimony reveals that she did not turn, brake or slow down despitc the fact that she observed defendant Koncliar s vehicle for a period of time prior tto tlie collision (see, King v Washburn, 273 A.D.2d 725; Greco v Boyce, 262 A.D.2d 734). On the record before the court on this motion, there are contradictory versions of how this accident occurred. Consequently, there are material issues of fact requiring a trial (see Zuckermian v City of New Ywk, 49 NY2d 557). Accordingly, tlie motion is decided as set forth herein. NON-FINAL DISPOSITION Robert K. Young & Associates. P.C. Attorneys for Plaintiff - Young 2284 Babylon Turnpike Merrick, N.Y. 11566 Russo, Apomanski Tambasco Attorneys for Defendant - Milo 875 Merri clc Avenue Westbury. N.Y. 1 1590 Abainont & Associates Attorneys for Defendant - Wagner 200 Garden City Plaza, Suite 400 Garden City, N.Y. 11530 Stewart FI. Friedman, Esq. Attorneys for Defendant - Konchar 401 Franltlin Avenue, Suite 3 14 Garden City, N.Y. 1 1530 1

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