Choflet v Karp

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Choflet v Karp 2017 NY Slip Op 33356(U) October 23, 2017 Supreme Court, Westchester County Docket Number: Index No. 55559/17 Judge: David F. Everett 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 10/25/2017 10:45 AM NYSCEF DOC. NO. 16 INDEX NO. 55559/2017 RECEIVED NYSCEF: 10/24/2017 commence the· the 30-day 30-day statutory statutory time time period period for appeals appeals as of of right right under under CPLR CPLR 5513 5513 (a), (a), you you are advised advised to serve serve To commence copy of of this order, order, with with notice notice of of entry, entry, upon upon all parties. parties. . a copy . . SUPREME COURT COURT OF THE THE STAT~ STATE OF NEW YORK SUPREME NEW YORK COUNTY WESTCHESTER COUNTY OF WESTCHESTER _ ____________________________________________ ~_ --------~--J( --------------------------------------------·--------------------X ROBERT CHOFLET, CHOFLET, ROBERT Plaintiff, ,. Plaintiff, Index No. 55559/17 No. 55559/17 Index ·Motion No. 001 Motion Sequence Sequence No. Decision and and Order Order Decision -against-againstWENDY WEINSTEIN WEINSTEIN KARP KARP and and JANETTE JANETTE WENDY WEINSTEIN KARP, KARP, WEINSTEIN Defendants. Defendants. ------------------------. ------------·-------------------- -----X -----------------~-----------------------------------------------J( EVERETT,J. EVERETT,J. The following papers ·were on this motion: following papers were read readon motion: Notice of Motion/Affirmation Motion! Affirmation in Supp/Exhibits Supp/Exhibits A-C A-C Notice of Affirmation in Opp Opp Affirmation Reply Affirmation Affirmation Reply ', .. Upon the forgoing forgoing papers, papers, the motion motion is granted. granted. Upon Plaintiff Robert Robert Choflet Choflet (Choflet) (Choflet) moves moves for an order, order, pursuant pursuant to CPLR CPLR 3212, 3212, granting granting Plaintiff and summary judgment against defendants defendants Wendy Wendy Weinstein Weinstein Karp Karp (Wendy (Wendy Karp) Karp) and Janette Janette summary judgment against Weinstein Karp Karp (Janette (Janette Karp) Karp) on the issue issue ofliability. ofliability. Defendants Defendants oppose oppose the the motion. motion. Weinstein Upon the the foregoing foregoing papers, papers, the motion motion is granted. granted. Upon . following facts facts are taken taken from the motion motion papers, affidavit, and and the the record, record, The following papers, pleadings, pleadings, affidavit, . .. . . undisputed unless unless otherwise otherwise indicated. indicated. and are undisputed Choflet commenced commenced this this action action by filing filing a summons summons and and complaint complaint in the the Office Office of of the · Choflet Westchester County County Clerk Clerk on April April 19, 2017, 2017, to recover recover damages damages for the the serious serious physical injuries Westchester physical injuries ' as allegedly ~ustained sustained as a result result of of an aut~mobile automobile accident accident that that occurred occurred on February February 21, 2016. 2016. he allegedly According to Choflet, Choflet, the the accident accident occurred when, when, while while .,stopped stopped at a red_light redlight at or near near the . According oi;curred ator ' . . , 1 of 4 .,I [*FILED: 2] WESTCHESTER COUNTY CLERK 10/25/2017 10:45 AM NYSCEF DOC. NO. 16 INDEX NO. 55559/2017 RECEIVED NYSCEF: 10/24/2017 I . ! motor York, his motor New York, Rochelle, New New Rochelle, intersection of of the the Post Post Road Road and Stephenson Boulevard Boulevard in New and Stephenson intersection operated by Karp and operated Wendy Karp owned by Wendy vehicle struck from behind vehicle owned motor vehicle the motor behind by the vehicle was struck negligence. Janette causing him sustain physical injuries. The The complaint complaint sounds sounds in negligence. physical injuries. him to sustain Karp, causing Janette Karp, . .. joint answer Issue was was joined defendants' joint answer with with affirmative affirmative defenses defenses on or. or . of defendants' service of joined by service Issue Choflet depositions, Choflet party depositions, prior to party discovery, and prior about completing discovery, Without completing 2017. Without June 9, 2017. about June judgment. served the instant' instant'motion summary judgment. motion for summary served plaintiff must As the proponent of the motion motion for summary summary judgment, must tender tender evidentiary evidentiary judgment, plaintiff proponent of favor as a her favor ip. her judgment in direct judgment court to direct proof the court warrant the sufficient to warrant admissible form sufficient proof in admissible . CPLR 3212 matter oflaw (Zuckerman (Zuckerman v City. City. of a/New NY2d 557,562 557,562 [1980]; [1980];CPLR 3212 [b]). To 49NY2d New York, 49 matter oflaw his sworn make this showing, showing, plaintiff submits copies copies of of the pleadings, sworn affidavit affidavit attesting attesting to pleadings, and his plaintiff submits make this /' / part, t~at, at relevant part, avers, in relevant Cho fl et avers, the facts underlying affidavit, Choflet In his affidavit, complaint. In underlying the complaint. ... . . ' vehicle to a brought his vehicle Road, he brought Post Road, the Post approximately 6:00 6:00 p.m., eastbound on the heading eastbound while heading p.m., while approximately Boulevard. He and Stephenson Post Road complete stop at a red light at the intersection of of the Post Road and Stephenson Boulevard. the intersection red light complete rear by the rear struck in the vehicle "was when his vehicle asserts "was stopped "was struck seconds" when least five seconds" stopped for at least that he "was asserts that another motor "given the information exchanged at the accident accident scene, scene, the information exchanged that "given vehicle," and that motor vehicle," another her vehicle struck [his vehicle] Wendy Weinstein Weinstein and operated operated by her registered to Wendy was registered vehicle] was that struck vehicle that ,r,r 2-4). (Choflet aff, 'iI'iI2-4). daughter, Janette" (Choflet daughter, Janette" a between a vehicles, or between moving vehicles, It is well settled that, between moving collisions between respect to collisions with respect that, with well settled moving stopped vehicle, "[ w]hen the driver of of an automobile automobile approaches approaches another another the driver vehicle, "[w]hen vehicle and a stopped moving vehicle and speed and of speed rate of safe rate reasonably safe automobile maintain a reasonably bound to maintain rear, he or she is bound the rear, automobile from the other with the other coliiding with care to avoid control over his or her exercise reasonable avoid colliding reasonable care vehicle, and to exercise her vehicle, control over vehicle" (Taing v Drewery, 740, 741 [2d Dept Dept 2012]). 2012]). Furthermore, Furthermore, "vehicle "vehicle stops stops AD3d 740; Drewery, 100 AD3d vehicle" (Taing 2 2 of 4 [*FILED: 3] WESTCHESTER COUNTY CLERK 10/25/2017 10:45 AM NYSCEF DOC. NO. 16 INDEX NO. 55559/2017 RECEIVED NYSCEF: 10/24/2017 which are foreseeable foreseeable under under the the prevailing prevailing traffic traffic conditions, conditions, even even if if sudderi sudderi and and frequent, frequent, must must · which anticipated by the driver driver who who follows, follows, since since he or she is under under a a duty duty to maintain maintain a safe safe be anticipated distance between between his or her her car and and the car ahead" ahead" (Robayo (Robayo v Aghaabdul, AD3d 892, 893 [2d Aghaabdu/, 109 AD3d distance Dept 2013] [internal [internal quotation quotation marks marks and and citation Citation omitted]). omitted]). Dept_ also well well settled settled law law that"[ that "[a] rear-end collision collision with with a stopped stopped or stopping stopping vehicle vehicle a] rear-end It is ~lso creates a prima prima facie facie case case of of negligence negligence with with respect respect to the operator operator of of the the moving moving vehicle vehicle and and creates imposes a duty duty on that that operator operator to rebut rebut the the inference inference ofnegligence of negligence by providing providing a non-negligent non-negligent imposes explanation for the the collision" collision" (Chio/iv (ChioK v Kouridakis, AD3d 706, 706, 706 706 [2d Dept Dept 2008] 2008] [internal [internal explanation Kouridakis, 57 AD3d . . quotation quotation marks marks and and citations citations omitted]). omitted]). Finally, Finally, Vehicle Vehicle and and Traffic Traffic Law§ Law S 1129 provides, provides, at subsection (a), that that "[t]he "[t]he driver driver of of a motor motor vehicle vehicle sh_all sh.all not not follow follow another another vehicle vehicle more more closely closely subsection than is reasonable reasonable and and prudent, prudent, having having due regard regard for the speed speed of of such such vehides vehicles and and the the traffic traffic than upon and the condition condition of of the the highway." highway." upon Here, Choflet Choflet has has satisfied satisfied his prima prima facie burden burden ofestablishing of establishing negligence negligence on the the part part Here, of defendants defendants as a matter matter of of law law on the issue issue of of liability, liability, and and the burden burden shifts shifts to defendants defendants to of submit, in admissible admissible form, form, a non non negligent negligent explanation explanation either either for the the collision, collision, or.for or for Janette Janette submit, Karp's failure failure to_maintain to maintain a reasonably reasonably safe distance distance under under the prevailing prevailing traffic traffic conditions conditions Karp's bet~e(;m her her vehicle vehicle and and the the vehicle vehicle in front front of_her of.her (Robayo (Robayo v Aghaabdul, AD3d at 893; be~een Aghaabdul, 109 ~D3d AD3d at at 741). 741). Taing v Drewery, Drewery, 100 AD3d defendants submit submit an attorney's attorney's affirmation affirmation in which which it is argued argued that that In response, response, defendants Choflet's motion Choflet's motion is premature, premature, because because there there have been been on depositions, depositions, and because, because, it is expected defendants will provide expected that that defendants provide a different different version version of of what what occurred occurred at the time time of of the accident. Defendants offer no evidence, evidence, via sworn ·. accident. Defendants offer sworn affidavits affidavits or otherwise, otherwise, that that the accident accident 3 3 of 4 [*FILED: 4] WESTCHESTER COUNTY CLERK 10/25/2017 10:45 AM NYSCEF DOC. NO. 16 INDEX NO. 55559/2017 RECEIVED NYSCEF: 10/24/2017 . . occurred in any. manner manner other other than than that that sworn sworn to by Choflet, Choflet, nor nor do they they offer a non non negligent negligent . occurred offer . explanation for failing explanation for failing to leave leave a reasonably reasonably safe distance distance between between Janette Janette Karp's Karp's motor motor vehicle vehicle and the vehicle vehicle in front front of of her her under under the prevailing prevailing traffic traffic conditions conditions that that evening evening (Zuckerman (Zuckerman v . . City of New Yor~, 49 NY2d NY2d at 562; Kouridakis, 57 AD3d Robayo v Aghaabdul, Aghaabdul, o/NeW 562; Chiok Chiok v Kouridakis, AD3d at 706; 706; Robayo 109 AD3d AD3d at 893). Accordingly, Accordingly, it appearing appearing to the the Court Court that that plaintiff plaintiff is entitled entitled to judgment judgment on liability, liability, it is ORDERED judgment is/granted ORDERED that that the the motion motion for summary summary judgment is/granted as to liability; liability; and and it is further further ORDERED that parties are directed ORDERED that the the parties directed to appear appear with with counsel counsel at the the Preliminary Preliminary Conference Conference Part, Part, courtroom courtroom 811 of of the the Westchester Westchester County County Courthouse, Courthouse, 111 Dr. Martin Martin Luther Luther Blvd., White White Plains, Plains, New New York, York, on Monday, Monday, November November 20, 2017, 2017, to schedule schedule discovery discovery King, Jr. Blvd., damages. as to damages. This This constitutes constitutes the the decision decision and and order order of of the the Court. Court. Dated: White White Plains, Plains, New New York York Dated: October October 23, 23,2017 2017 HON. DAVID DAVID F. EVERETT, EVERETT, A A....S.C. S.C. HON. Hausman Hausman & Pendzick Pendzick Mamaroneck A Avenue 440 Mamaroneck venue Harrison, New York Harrison, New York 10528 Varvaro, Cotter Cotter & Bender Bender Varvaro, Westchester Avenue Avenue 1133 Westchester White Plains, Plains, New York 10604 10604 White New York 4 4 of 4

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