Scipio v Nikac

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Scipio v Nikac 2017 NY Slip Op 33355(U) December 5, 2017 Supreme Court, Westchester County Docket Number: Index No. 52678/17 Judge: Lewis J. Lubell Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: 1] WESTCHESTER COUNTY CLERK 12/06/2017 10:12 AM NYSCEF DOC. NO. 33 INDEX NO. 52678/2017 RECEIVED NYSCEF: 12/06/2017 \.. "- Wood" 12/15/1~ @ CAR I)orfan DorianWood'12/15/17 @ 9:30. 9:30 CAR ) ) To commence commence the the 30. 30 day day statutory statutory To time period period for appeals appeals as o~ o.f right right time (CPLR 5513[a]}, 5513[a]), you you are are advised_ advised to (CPLR serve serve aa . copy copy of this this order~ 6rder~ with with notice of entry, entry, upon all parties parties upon all notice of SUPREME COURT COURT OF THE THE STATE STATE e>f of NEW NEW YORK YORK SUPREME COUNTY OF WESTCHESTER WESTCHESTER COUNTY .. --------- ·--- . ____ ·--------------x . ----------------~---~----~--------------X MARGARITA MARGARITA E. E. SCIPIO SCIPIO,I . DECISION DECISION & & ORDER ORDER Plaintiff,I .Plaintiff Index No. 52?78/17 52?78/17 Index -against -against -Sequence No. 1&2 Sequence FRANKIE NIKAC, PASKO PASKO NIKAC, EAN EAN FRANKiE HOLDINGS LLC LLC and and BERNARD.WILLIAMS, BERNARD.WILLIAMS, HOL~I~GS . Defendants. Defendants. "\ '· . -----~-------------------~~-----T----X - - - - -.'i- - - - - - . - - - - - - - - - . - - - .· - - - -.- - • - - - -x LUBELL, J. J. LUBELL, . . . . . . following papers were considered considered in in connection connection with with Motion Motion papers were . The following for pursuant to CPLR:3212 Sequence #1 by an Order pursuant CPLR3212 plaintiff for an·order by plaintiff .Sequence summary _judgment judgment on. on the -issue -issue of liability;· liability; and and Motion Motion Sequence Sequence #2 summary by defendants defendants EAN EAN Holdings Holdings LLC LLC.-and and Bernard Bernard Williams Williams f-or f.or an Order Order by ~ismissing granting summary judgment pursuant CPLR' · 3212 3212 dismissing to CPLR judgment pursuant. summary granting plaintiff's complaint complaint and and any any and and ali all cross-claims cross-claims against against EAN EAN and and plaintiff's Williams as the c<;>mplaint compla~nt is without without mer.it merit as a matter matter of law law and and Williams granting summary summary judgmeritpursuant CPLR 3212 3212 to the defendant defendant judgmeritpursuant to CPLR granting · EAN EAN dismi-ssing dismissing the complaint complaint and and any any and and ~11 all ·cross-claims·. cross-claims as the federal by plaintiff's complaint barred and preempted by federal law law under under pr.eemp_ted and barred is plaintiff's complaint Subchapter II of Chapter Chapter 301 301 of Title Title 49, 49, ·United United States States Code Code 30106 30106 Subchapter matter of.law: merft as aa matter and therefore of law: without merit therefore is without and a PAPERS PAPERS f-5 NOTICE OF MOTION/AFFIRMAT.ION/EXHIBITS MOTION/AFFIRMATION/EXHIBITS 1-5 NOTICE NOTICE OF CROSS CROSS MOTION/AfFIRMATION/AFFIDAV:i:TS/ MOTION/AfFIRMATION/AFFIDAVITS/ NOTICE:OF EXHIBITS EXHIBITS A-E A-E ··REPLY AFFIRMATION AFFIRMATION REPLY NYSCEF NYSCEF· 13-20 13-20 21-29 21-29 30,31 30,31 bring's this Plaintiff, Margarita Margarita E. E. Scipio, brings this negligence negligence action action Plaintiff, injuries damages for alleged serious· seriousinj uries sustained sustained as aa for alleged recover damages to ·recover which accident three-vehicle automobile result alleged · three-vehicle automobile accident which result of an alleged occurred on Augu~t August 17, 17, 2016, on Jackson Jackson Avenue Avenue and and its intersection intersection occurred with the exit exit and and entranceway entranceway of the sp·rain Sprain Brook Brook Parkway Parkway South, with 1 of 4 L,L [*FILED: 2] WESTCHESTER COUNTY CLERK 12/06/2017 10:12 AM NYSCEF DOC. NO. 33 INDEX NO. 52678/2017 RECEIVED NYSCEF: 12/06/2017 New York. Scardsale, New Scardsale, a passenger in a a passenger was a At the time accident, plaintiff plaintiff was time of the accident, ("Williams") Williams ("Williams") vehicle Bernard Williams defendant Bernard by defendant operated by being operated vehicle being also ( "EAN") , also LLC ("EAN"), Holdings LLC EAN Holdings and defendant EAN by defendant owned by was owned which was and which place took accident The referred to as the "William's Vehicle". The accident took place Vehicle". "William's referred vehicle by aa vehicle rear by when struck in the rear Vehicle was struck William's Vehicle when the William's by owned by which is owned Nikac and being operated by defendant Frankie and which Frankie Nikac by defendant being operated plaintiff impact, plaintiff this impact, result of this defendant Pasko Nikac. As the result defendant Pasko with contact with make contact caused to make contends Vehicle was caused William's Vehicle contends that the William's disputes Williams it. front a non-party vehicle situated in front of it. Williams disputes a non-party vehicle situated this latter latter claim. summary remedy of summary drastic remedy It is well established that the drastic well established doubt there where judgment should only be employed where there is no doubt as to the employed only should judgment v. (Kolivas fact material absence of any triable issues of aa material (Kolivas v. triable issues absence than rather than Kirchoff, "Issue finding, finding, rather 2005))).. "Issue Dept 2005] AD3d 493 [2nd Dept Kirchoff, 14 AD3d doubt any doubt there is any issue courts function. function. If there determination is the courts issue determination issue material issue a material issue of fact, or a about triable issue a triable existence of a about the existence v. (Celardo denied" should of fact is arguable, summary judgment should be denied" (Celardo v. judgment arguable, summary motion a of Bell, 222 A.D.2d [2d Dept 1995] )).. "In the context context a motion Dept 1995) A.D.2d 547 [2d reasonable summary judgment, court is obliged obliged to draw draw all reasonable judgment, the court for summary pass on not pass may not and may non-moving party, and inferences favor of the non-moving inferences in favor A.D.2d Diner issues of credibility" (Rizzo v. Lincoln Diner Corp., 215 A.D.2d Lincoln v. credibility" issues ). 2005) ). 546 [2d [2d Dept Dept 2005] However, However, approaches automobile approaches "[w]hen the driver driver of an automobile "[w]hen or she is he another automobile from the rear, another automobile rate of bound safe rate reasonably safe maintain aa reasonably bound to maintain vehicle, and speed and control over over his vehicle, and to and control speed colliding avoid colliding care to avoid exercise reasonable care exercise reasonable Carter, 6 v. Carter, with vehicle" (Gaeta v. other vehicle" with the other AD3d Jairath, 122 AD3d v. Jairath, Gallo v. AD3d 576; see Gallo 576, 576j AD3d 576, AD3d 740, 796j Taing v. Drewery, 100 AD3d v. Drewery, Taing 795, 796; a stopped with a 741). A collision with stopped or rear-end collision A rear-end case of facie case prima facie a prima stopping vehicle creates a vehicle creates stopping rear the of negligence rear operator against the operator negligence against that operator vehicle, operator to requiring that thereby requiring vehicle, thereby providing by providing rebut inference of negligence negligence by rebut the inference a explanation for the collision collision nonnegligent explanation a nonnegligent NY3d 10 NY3d Suffolk, (see Tutrani v. County of Suffolk, County ( see Tutrani v. AD3d 554, 906, 908j Bartling, 130 AD3d v. Bartling, Brothers v. 908; Brothers AD3d 773, 123 AD3d 555j Le Grand Grand v. Silberstein, v. Silberstein, 555; AD3d 759, 113 AD3d 774j Williams Spencer-Hall, v. Spencer-Hall, Williams v. 774; 760). "To prevail summary motion for summary a motion prevail on a 2 2 of 4 [*FILED: 3] WESTCHESTER COUNTY CLERK 12/06/2017 10:12 AM NYSCEF DOC. NO. 33 INDEX NO. 52678/2017 RECEIVED NYSCEF: 12/06/2017 a liability, judgment issue of liability, a issue on the judgment on not facie, prima plaintiff establish, prima not must establish, plaintiff must negligent, party was negligent, only that opposing party that the opposing only from was free from but plaintiff was that the plaintiff also that but also Carting D Carting & D D & v. D comparative (Phillip v. comparative fault" (Phillip v. Melendez v. Co., Inc., 136 AD3d 18, 22; see Melendez AD3d 18, 1020). AD3d 1018, McCrowell, McCrowell, 139 AD3d 00286 NY Slip (Comas Bourne Slip Op 00286 New York, 2017 NY City of New v. City Bourne v. Jan. 18, 18, 2017]). Dept [2d Dept prima facie made aa prima had made Court finds that plaintiff facie showing showing plaintiff had The Court law as matter of law a matter of entitlement entitlement to judgment favor as a her favor judgment in her Vehicle in William's Vehicle against struck the William's who struck defendants who Nikac defendants against the Nikac have defendants have and defendants the rear slowing down, and stopped or slowing rear as it was stopped granted is judgment failed to respond Therefore, summary summary judgment granted respond to same. Therefore, failed Nikac defendants and against against the Nikac defendants on on the issue issue plaintiff and in favor of plaintiff of liability. liability. same established the same has established The Court plaintiff has say that plaintiff cannot say Court cannot the to respect with respect with Vehicle, be it with Williams Vehicle, respect to the Williams with respect respect to its owner, with respect operator, Williams, owner, EAN. Williams, and, thus, with operator, the was following Vehicle was William's Vehicle Plaintiff's following the position that the William's Plaintiff's position maintain failed to maintain Williams failed that Williams car in front it too closely and/or that closely and/or rear struck 'in the rear being struck'in upon being the William's control upon under control Vehicle under William's Vehicle and than conclusory more than by the Nikac conclusory and nothing more vehicle is nothing Nikac vehicle upon burden upon met its initial speculative. As such, plaintiff initial burden plaintiff has not met speculative. motion. the motion. by made by averments made factual averments In any review of the factual upon review any event, upon his motion and plaintiff's motion Williams opposition to plaintiff's and in support support of his Williams in opposition material questions there are material motion, the Court Court finds that there questions of fact judgment in summary· judgment motion for summary' warranting plaintiff's motion denial of plaintiff's warranting the denial judgment summary for motion her summary judgment William's motion defendant William's and defendant favor and her favor are but are include, but dismissing complaint. These questions of fact include, These questions dismissing the complaint. non-party Vehicle struck William's Vehicle not limited limited to, struck the non-party whether the William's to, whether what circumstances. under what vehicle so, under circumstances. place and, if so, vehicle in the first place rented to was rented Vehicle was EAN William's Vehicle that the William's established that EAN has established non-party ELRAC, LLC business of non-party Williams ordinary course course of business LLC Williams in the ordinary EAN is to Williams agreement and-that and. that EAN rental agreement written rental a written pursuant to a Williams pursuant pursuant to this action otherwise entitled by law action pursuant dismissal of this law to dismissal otherwise entitled Equity Transportation the "Safe, Accountable, Flexible, Efficient Transportation Equity Efficient Accountable, Flexible, prohibits the which prohibits Act ~30106 [The [The Graves Amendment], which Graves Amendment], USC §30106 Act", 49 USC their and owners imposition liability against owners and their against vicarious liability of vicarious imposition vehicles and their vehicles affiliates of motor lease their and rent or lease who rent vehicles who motor vehicles affiliates accidents (see vehicle accidents which subsequently involved motor vehicle involved in motor which are subsequently II , 3 3 of 4 [*FILED: 4] WESTCHESTER COUNTY CLERK 12/06/2017 10:12 AM NYSCEF DOC. NO. 33 INDEX NO. 52678/2017 RECEIVED NYSCEF: 12/06/2017 Bravo_-2014]); Couture v. Bravo.' v. v ..- Vargas·, Vargas', 113 AD3d AD3d S-79 579 [2d [2d Dept, Dept,-2014]); Couture v. Miskovitz, 102 AD3d AD3d723 -[2d Dept Dept 2017]) 2017]).. Plaintiff Plaintiff has failed failed to Miskovitz, 723 .[2d raise aa triable triable isslle issue of fact regarding regarding same. raise Based upon upon the foregoing, foregoing, it is hereby hereby Based summary judgment granted favor ORDERED, that summary judgment is granted in favor of ORDERED, against defendants, Frankie Nikac and Pasko Nikac, plaintiff and against defendants, Frankie Nikac and Pasko Nikac, plaintiff liability and and is other~ise other~ise denied; and, it ~t is on the ~sstie denied; issue of liability further further ORDERED, ORDERED, that ,summary _summary judgment judgment defendant EAN; and, it is further further defendant is granted granted in favor favor of and cross-motion cross-motion ORDERED, to any further further extent, extenti motion and ORDERED, the motion otherwise denied. are otherwise hereby reminded reminded to appear appear for the already" already' The parties parties are hereby scheduled conference. with Court Court Attorney Attorney Referee Referee Dorian Dorian Wood Wood on scheduled conference- with December 15, IS, 2017@ 2017 @9:30a.m. December 9:30 a.m, foregoing constitutes constitutes the Opinion, Opinion, Decision, and Order Order of The foregoing Decision, and the Court. ._ ;7e~kr~ r~kr~'' New York New York Dated: White White Pla~, Pla~, -2017 -2017 .·c:iii~ .• ~~ Law Offices Offices - of Henry Henry w. W. Davoli, Davoli, Jr., PLLC PLLC The Law By:Zory Shteyman,Esq. By: Zory Shteyman, Esq. Attorney for Plaintiff Plaintiff Attorney Long Beach Beaqh Road Road 342 North North Long Rockville Centre, NY 11570 11570 Rockville \ Law Office Office of Bryan BryanM.M. Kulak Kulak Law Attorney for Defs. Nikac Attorney Nikac ·Crystal Run Run Road, Suite Suite 409 90 Crystal Middletown, NY 1094110941Middletown, ' Reardon & &-Sclafani, Reardon Sclafani, PC -Attorney for Defs. Williams Williams and and EAN Holdings Holdings LLC LLC ·Attorney 220 White White Plains Plains Road, Suite Su~te 235 Tarrytown, NY 10591 10591 Tarrytown, 4 4 of 4 } }

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