Del La Rosa v Santana

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Del La Rosa v Santana 2017 NY Slip Op 31724(U) July 5, 2017 Supreme Court, Bronx County Docket Number: 350189/15 Judge: Elizabeth A. Taylor Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] . t - • SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX: 1.A.S. PART 2 ASHANTI DEL LA ROSA, an infant by her father and natural guardian, HUASCAR DE LA ROSA and HUASCAR DE LA ROSA, Individually, Plaintiff, Index No. 350189/15 DECISION/ORDER - againstPresent: HON. ELIZABETH A. TAYLOR MICHELLE SANTANA, JOSE X. PAULINO, NUNEZ M.F. MORALES, EDWARD E. CASTRO, OM AFONSO-ANTICETO, MARIA SANCHEZ, VILMA MONTANO, CC PENTICOSTH and MARIA GONZALEZ, Defendants. The following papers numbered 1 to_ read on this motion, _ _ _ _ _ _ __ No_On Calendar of____ PAPERS NUMBERED Notice of Motion-Order to Show Cause - Exhibits and Affidavits Annexed-----------------_ _ _ 1_-2~6_-~7_ __ Answering Affidavit and Exhibits--------------------------------------------------------------------~3~8~-- Replying Affidavit and Exhibits-------------------------------------------------------------------------'4'"""-5'----Affidavit-------------------------------------------------------------------------------------------------------Pleadings -- Exhibit------------------------------------------------------------------------------------------Stipulation -- Referee's Report --Minutes-----------------------------------------------------------------Filed papers----------------------------------------------------------------------------------------------------Upon the foregoing papers and due deliberation thereof, the Decision/Order on this motion is as follows: Motion pursuant to CPLR 3212 for an order granting summary judgment dismissing the complaint and cross-claims against defendant Nunez M.F. Morales; and motion pursuant to CPLR 3212 for an order granting summary judgment dismissing the complaint and cross-claims against defendant Edward Castro, are consolidated herein for decision. Plaintiff commenced this personal injury action seeking damages for injuries allegedly sustained, as a result of a motor vehicle accident that occurred on July 4, 2013. It is undisputed that this action arises from a six-car, chain-reaction, motor vehicle accident. Defendant Nunez M.F. Morales operated the second vehicle and defendant Edward Castro operated the third vehicle (movants). Movants seek summary Page 1of4 [* 2] judgment dismissing the complaint and cross-claims alleging that at the time of the accident, their vehicles were stopped when their vehicles were struck from behind. It is noted defendant Castro commenced another action under index number 300592/14, involving the same accident. In that action, this court granted summary judgment on the issue of liability in favor of Mr. Castro and Mr. Nunez. However, the plaintiffs in this action were not parties to the action under index number 300592/14 and did not have the opportunity to be heard on the summary judgment motions in that action. It is well settled that "[i]n a chain collision accident, the operator of the middle vehicle [] establish[es] prima facie entitlement to judgment as a matter of law by demonstrating that the middle vehicle was properly stopped behind the lead vehicle when it was struck from behind by the rear vehicle and propelled into the lead vehicle" (Chuk Hwa Shin v Correale, 142 AD3d 518, 519 [2d Dept 2016] see Santos v Booth, 126 AD3d 506 [1st Dept 2015]; Arbizu v REM Transp., Inc., 20 AD3d 375 [2d Dept 2005]). To rebut the inference of negligence, the operator of the rear vehicle must provide a "nonnegligent" explanation for the accident (Volpe v Limoncel/i, 74 AD3d 795 [2d Dept 2010]). In support of the current motions, movants submit the deposition transcript of defendant Castro and the affidavit of defendant Nunez. Mr. Castro avers that after leaving the toll plaza at Sunken Meadow Parkway, he came to a stop in traffic for about five to ten seconds when his vehicle was struck from in the rear causing it to be propelled into the vehicle that was in front of it. He avers that he saw the vehicle driven by defendant Maria Gonzalez leave the toll plaza and pick up speed. He further Page 2 of 4 [* 3] attested that defendant Gonzalez hit a vehicle causing a "chain reaction" accident involving five other cars. Mr. Nunez avers that after leaving the toll plaza, he came to a stop in traffic when his vehicle was struck in the rear causing it to be propelled into the vehicle that was in front of it. This court finds the foregoing submissions sufficient to establish a presumption of negligence of the operator of the rear vehicle (see Santos, 126 AD3d 506; Arbizu, 20 AD3d). Therefore, movants have established entitled to summary judgment dismissing the complaint and cross-claims against them. As such, the burden shifts to plaintiff and co-defendants to raise an issue of fact. The only party to submit opposition papers are defendants CC Penticosth and Gonzalez. However, they fail to submit an affidavit from someone with personal knowledge of the facts either denying movants allegations or offering a "non negligent" explanation for the collision (see Santos, 126 AD3d 506). Further, the argument that the summary judgment motions are premature as additional discovery is necessary is without merit. The mere hope that evidence sufficient to defeat a motion for summary judgment may be uncovered during the discovery process is insufficient to deny the motion (see Flores v City of New York, 66 AD3d 599, 600 [1st Dept 2009]). Additionally, the parties have had the opportunity to submit facts "essential to justify opposition to the motion" and have failed to do so (Jeffrey v DeJesus, 116 AD3d 574, 575 [1st Dept 2014] [citations omitted]). The Clerk is directed to dismiss the complaint and cross-claims against defendants Nunez M.F. Morales and Edward Castro and to amend the caption as follows: Page 3of4 [* 4] • SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BRONX: ASHANTI DEL LA ROSA, an infant by her father and natural guardian, HUASCAR DE LA ROSA and HUASCAR DE LA ROSA, Individually, Plaintiff, Index No. 350189/15 - against - MICHELLE SANTANA, JOSE X. PAULINO, OM AFONSO-ANTICETO, MARIA SANCHEZ, VILMA MONTANO, CC PENTICOSTH and MARIA GONZALEZ, Defendants. The foregoing shall constitute the decision and order of this court. Dated..:._:_J_U_L_o_s_2_01_1_ Page 4of4

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