Eydelman v Jeon

[*1] Eydelman v Jeon 2006 NY Slip Op 52431(U) [14 Misc 3d 1206(A)] Decided on December 15, 2006 Supreme Court, Bronx County Hunter, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 15, 2006
Supreme Court, Bronx County

Yevgeniy Eydelman and Anna Margolina, Plaintiff,

against

Danny Jeon, Defendant.



13973/06



Plaintiff's Attorney: Andrea Blair, Esq.

Defendant's Attorney: Chris Katechis, Esq.

Alexander W. Hunter, J.

Upon the foregoing papers, the motion by plaintiffs for summary judgment on the issue of liability is denied as premature, with leave to renew, if appropriate, upon completion of discovery. Plaintiffs' further motion for an order striking defendant's affirmative defense of threshold, is granted only to the extent that New York's serious injury threshold requirement does not apply in this case.

The cause of action arises out of injuries sustained by the plaintiffs on the east bound George Washington Bridge, lower level, approximately mid span on the bridge, in the State of [*2]New Jersey, when their vehicle was struck in the rear by a vehicle owned and operated by the defendant.

In support of their motion, plaintiffs submit the sworn affidavit of plaintiff Yevgeniy Eydelman, wherein he states that he was operating a vehicle registered in New Jersey when defendant's vehicle collided with the rear of his vehicle. Plaintiff Eydelman states that at the time of the impact, his vehicle was at a complete stop for approximately ten (10) seconds and that his tail lights and brake lights were properly functioning.

Plaintiffs also contend that because this accident occurred in New Jersey and involved New York residents, the serious injury threshold requirement under Insurance Law §5104, does not apply and plaintiff is not required to prove a serious injury.

Defendant opposes the motion and requests that this court grant a continuance pursuant to C.P.L.R. §3212(f) and deny the motion as premature in order for the parties to complete discovery. Defendant asserts that there are issues of fact as to whether the plaintiff contributed to the occurrence of the accident and defendant should be entitled to complete discovery before a determination is made as to whether the plaintiffs are entitled to summary judgment.

In addition, defendant asserts that New Jersey threshold laws should apply in this cause of action because one driver is a New Jersey resident and the other driver is a New York resident and the situs of the accident was in New Jersey.

It is well established that summary judgment is a drastic remedy and should not be granted where there is any doubt as to the existence of a triable issue. Rotuba Extruders v. Ceppos, 46 NY2d 223 (1978).The court's function on a motion for summary judgment is issue finding rather than issue determination. Sillman v. Twentieth Century Fox Film Corp., 3 NY2d 395 (1957). Once the movant has made this showing, the burden shifts to the party opposing the motion "to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action." Alvarez v. Prospect Hospital, 68 NY2d 320 (1986).

In addition, the law is clear that a rear-end collision with a stopped vehicle establishes a prima facie case of negligence on the part of the operator of the offending vehicle and imposes a duty of explanation on the operator as to how the accident occurred. See, Tripp v. Gelco Corp., 260 AD2d 925 (3rd Dept. 1999); Bando-Twomey v. Richheimer, 229 AD2d 554 (2nd Dept. 1996). The party operating the offending vehicle must offer a non-negligent explanation for the collision to overcome the inference of negligence. See, Barile v. Lazzarini, 222 AD2d 635 (2nd Dept. 1995).

However, courts have frequently denied summary judgment motions as premature until the completion of discovery where facts essential to justify opposition to the motion may exist but cannot be stated in the opposition papers because they are within the exclusive knowledge of [*3]the other party and the motion is made before the parties have had an opportunity to conduct discovery. See, C.P.L.R. §3212(f); Smith v. City of New York, 133 AD2d 818 (2nd Dept. 1987); Morris v. Hochman, 296 AD2d 481 (2nd Dept. 2002).

In the case at bar, the only proof submitted in support of plaintiffs' motion for summary judgment on the issue of liability is the affidavit of the plaintiff driver who asserts that he was stopped mid span on the lower level of the George Washington Bridge. However, plaintiff does not describe what the traffic conditions were like or why he was stopped there for ten seconds. Accordingly, this court finds that plaintiffs' summary judgment motion is premature at this time.

With respect to the threshold issue under Insurance Law §5104, both parties cite to Morgan v. Bisorni, 100 AD2d 956 (2nd Dept. 1984). Plaintiffs have interpreted that case to stand for the proposition that plaintiffs herein are not required to prove a serious injury. Defendant has interpreted that case to stand for the proposition that New Jersey threshold law applies.

The court in Morgan v. Bisoni (supra) stated, in pertinent part, citing to NJ Stat Ann §39:6A-1 et seq., "...Under the statute a nonresident in a non-New Jersey registered or insured vehicle, injured in an accident in New Jersey...is not covered by or subject to the New Jersey no-fault law...Unless a vehicle is principally garaged' or registered' in New Jersey...an accident in which it is involved is not subject to New Jersey no-fault' rules governing basic economic loss or threshold requirements for personal injury suits"(citations omitted). Id. New York Insurance Law §5104 states, "...in an action by or on behalf of a covered person against another covered person for personal injuries arising out of negligence in the use or operation of a motor vehicle in this state, there shall be no right of recovery for non-economic loss, except in the case of a serious injury, or for basic economic loss" (emphasis added). See also, Government Employees Ins. Co. v. Halfpenny, 103 Misc 2d 128 (1980), which involved an action between a New York resident who was in an automobile accident in New Jersey, caused by a New Jersey resident operating a vehicle registered and insured pursuant to the laws of New Jersey. The court therein determined that the injured New York resident,"...has recourse to those remedies which exist under New Jersey law. New Jersey has a great, if not a greater, legitimate interest' in this occurrence than New York." Id. at 134.

In the case at bar, it is apparent that since the accident occurred in New Jersey, the threshold requirement under New York Insurance Law §5104 does not apply. Therefore, any defense raised by the defendant in his answer pursuant to New York Insurance Law §5104 should be stricken. However, even though the summons lists plaintiff's residence as Bronx County, both the complaint and plaintiff Eydelman's affidavit indicate that the motor vehicle he was operating, was registered in New Jersey.[FN1] Accordingly, under New Jersey statute and relevant case law, New Jersey's threshold requirements apply. [*4]

This constitutes the decision and order of this court.

Dated December 15, 2006

J.S.C. Footnotes

Footnote 1:The summons does not indicate which of the plaintiffs resides in Bronx County.