Mitchell v North Shore-Long Is. Jewish Health Sys., Inc.

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Mitchell v North Shore-Long Is. Jewish Health Sys., Inc. 2011 NY Slip Op 32621(U) October 4, 2011 Supreme Court, Suffolk County Docket Number: 26904/2008 Judge: William B. Rebolini 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] SUPREME COURT - STATE OF NEW YORK I.A.S. PART 7 - SUFFOLK COUNTY PRllSENT: WILLIAM B. REBOLINI Justice Index No.: 36904/2008 Byron R. Mitchell, P 1ainti ff , -.againstNorth Shore-Long [sland Jewish Health System, Inc., Gregory G. Hill, Time Warner Entertainment Company, L.P. and Michael P. Dunn, Defendants. Clerk of the Court Motion Sequence No.: 004; MG Motion Date: 5/18/11 Submitted: 5/18/11 Motion Sequence No.: 005; XMD Motion Date: 5/18/11 Submitted: 5/18/11 Attorney for Plaintiff: Siben & Siben, LLP 90 East Main Street Bay Shore, NY 11706 Attorney for Defendant North ShoreLonEr Island Jewish Health Svstem, Inc:: Mintzer, Sarowitz, Zeris, Ledva 17 West John Street, Suite 200 Hicksville, NY 1180 1 Attorney for Defendant Time Warner Entertainment Companv. L.P. and Michael P. Dunn: Gottlieb, Siege1 & Schwartz lS0 East 162 Street, Suite ID Bronx, NY 10451 lJpon the following papers numbered 1 to 3 1 read upon this motion for leave to renew the prior siimmary motion, and cross motion for summary judgment: Notice of Motion and supporting papers, 1 - 17; Notice of Cross Motion and supporting papers, 18 - 20; Answering Affidavits ;and supporting pipers, 21 - 29; Replying Affidavits and supporting papers, 30 - 3 1 . [* 2] n litchell v. North Shore LIJ, et al. Index No.: 26904/2008 Page 2 This is an action for personal injuries allegedly sustained by plaintiff Byron Mitchell as a result of a three car accident in the westbound lane of the Long Island Expressway near exit 42 in the Tobn of Oyster Bay, New York, on April 17, 2008. The accident allegedly occurred when a motor vehicle owned by North Shore Long Island Jewish Health System Inc. (hereinaAer NSLIJHS ) and operated by its employee Gregory Hill rear-ended a vehicle owned by Time Warner Entertainment Company L.P. (hereinafter Time Warner ) and operated by its employee, Michael Dunn, which in turn collided with plaintiff s vehicle. Although it is undisputed that the NSLIJI-IS vehicle rear-ended the Time Warner vehicle, all defendants contend that it was a two vehicle collision and that the plaintiff s vehicle was not involved in the collision. By order datled April 11, 201 1, the prior motion of Time Warner and Michael Dunn for summary judgment in their favor dismissing the complaint was denied on the basis that movants failed to submit a complete set of pleadings. Movants additional request, contained in the affirmation of Time Warner s counsel, for an order granting summary judgment on the issue of liability as against co-defendants NSLIJHS and Hill, was also denied on the basis that the relief was not sought in the notice of motion or verified answer (see CPLR $$2214, 3019). The motion by Time Wainer and Dunn was denied without prejudice to renewal upon proper papers. Time Warner and Dunn now seek leave to renew their prior motion for summaryjudgment dismissing the complaint and all cross claims against them. In view of the fact that defendants Time Wainer and Dunn have now submitted a complete set of pleadings, their motion for leave to renew their prior summary judgment motion is granted (m,DeLeonardis v. Brown, 15 AD3d 525 [2 ld Dept.. 30051; Simpson v. Tommv Hilfiger, 48 AD3d 389 [2Iid Dept., 20081). In support of the motion, Time Warner and Dunn contend that the accident occurred solely due to NSLIJHS s negligence and that the Time Wainer vehicle never came in contact with plaintiff s vehicle. In support of the motion for summary judgment, movants submit the deposition testimony of Michael Dunn and Gregory Hill, the operator of the NSLIJHS vehicle, nine photographs and thc pleadings. I n opposition, plaintiff contends that the Time Warner vehicle struck his vehicle after being i-ear-ended by the NSLIJHS vehicle. Plaintiff submits his deposition testimony and the affirmation of his attorncy. Decendant NSLIJHS and Hill cross move for dismissal of the complaint and all cross claims contending that although Hill admits that he took his eyes off the road momentarily and that he hit the Time Warner vehicle, he did not observe the Time Warner vehicle strike plaintiff s vehicle. They assei-t that plaintiff \was not involved in the collision and that he did not sustain personal injury or damage to his vehicle. They contend that plaintiff left his vehicle with a cup of coffee in hand and submit photographs to show that there was no damage to the front of the Time Warner vehicle. PICtintitf Mitchell testified at his depositron that he was triiveling at a rate of 40 to 45 miles pei houi at the time of Impact, that he heard the first impact, and a split second later he felt the [* 3] Mitchell v. North Shore LIJ, et al. Index No.: 26904/2008 Page 3 second impact to his car. He stated that as a result thereof, he was no longer fully in control of h.is vehicle. that his car was pushed forward 15 to 20 feet, and he hjt his head on the headrest. In addition, he testified that he saw the Time Warner and NSLIJHS vehicles only after the impact and that he did not observe what happened behind him as the collisions were occurring. Plaintiff stated that the Time Warner vehicle was damaged on all four sides and that it came to rest across the HOV lane, perpendicular to the meridian. Plaintiff testified that his vehicle s rear fender was dented on the left side, a light was knocked out, and the trunk was dented. After the impact, he left his vehicle to inquire of the other drivers to determine if they were hurt. He became dizzy, his legs gave out and he was taken by ambulance to the hospital. Defendant Dunn, operator of the Time Warner vehicle, testified that immediately prior to the impact his vehicle was stopped and that all traffic in front of him was stopped. Dunn states that there was only one impacl. and that was with the NSLIJHS vehicle when it rear-ended his vehicle. He testified that he saw the NSLIJHS vehicle in the rear view mirror momentarily before the impact, and that the impact moved his vehicle 90 degrees to the left and across the HOV lane. He submits photographs, which he states demonstrate that only the back end of his vehicle was crushed, alo-ng with the rear portion of the side quarter panel. The back window and the side rear windows were also broken. He asserts that plaintiff s testimony as to damage to all four sides of his vehicle is false, as there was no damage to the front of the vehicle. Defendant Hill, operator of the NSLIJHS vehicle, testified that at the time of the accident, the Time Warner vehicle and the vehicles in front of it had their brake lights on and were coming to a stop. He admitt edthat he took his eyes off the lane in front of him momentarily to observe a sports car. He testified that he was fifteen feet from the Time Warner vehicle when he attempted to stop and that two or three seconds later he struck it. Hill also conceded that the Time Warner vehicle did not slain on its brakes or come to a sudden stop. Rather, it came to a gradual stop, three to four seconds from when he first observed it. Hill stated that the front of his vehicle rear-ended the Time Warner vehicle. As a result of the impact, the Time Warner vehicle was pushed to the left across the HOV lane and his vehicle moved to the right into the middle lane. Hill stated that the middle portion of the front bumper on the driver s side of his vehicle was damaged. Hill averred that he did not see or hear a second impact with a third vehicle. The proponent of a summary judgment motion must make a prima facie showing of cntitlenicnt 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 [ 19861; Winegradv. New York Univ. Med. Ctr., 64 NY2d 851 [1985]). Once this showing has been made, the burden shifts L O 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. Zuckerman v. City of New York, 49 NY2d 557 [ 19801). 4 s a general rule. a rear-end collision with a stopped or stopping vehicle creates apl-znujcicrr cdse ot negligence with respect to the operatoi of the iearmost vehicle, imposing a duty of cvplanation on that operator to excuse the collision either through a mechanical failure, a sudden [* 4] Mitchell v. North Shore LIJ, et al. Index No.: 26904/2008 Page 4 stop ofthe vehicle ahead, an unavoidable skidding on a wet pavement, or any other reasonable cause (see, DeLouise v. S.K.I. Wholesale Beer Corn., 75 AD3d 489 [2'IdDept., 20101; Klopchin v. Masri, 45 AD3d 737 Dept., 30071; Leal v. Wolff, 224 AD2d 392 [.)'Id Dept., 19961). In addition, when a drivei-of an automobile approaches from the rear, he or she is bound to maintain a reasonably safe rate of speed and control over his or her vehicle and to exercise reasonable care to avoid colliding Filippazzo v. Santiago, 277 AD2d419 [ 2 ' I d Dept., 20001). The occupants with the other vehicle (see, of the lront vehicle are entitled to summary judgment on the issue of liability, unless the driver of the rear vehicle can provide, by way of admissible evidence, a non-negligent explanation for the collision (see, Power v. Hupart, 260 AD2d 458 [ 2 I d Dept., 19991). Here, defendants Time Warner and Dunn established their prima ,fiicie entitlement to judgment as a matter of law on the issue of liability by submitting evidence that their vehicle was stopped or stopping when it was rear-ended by the defendants Hi WNSLIJHS' vehicle (see, DeLouise v. S.K.I. Wholesale 13eer Corn., 75 AD3d 489 [2'Id Dept., 20101; Klopchin v. Masri, 45 AD3d 7:37 [2"d Dept., 20071; Leal v. Wolff, 224 AD2d 392 [2'ld Dept., 19961). In addition, based on the documentary evidence submitted, defendant Hill failed to maintain a reasonably safe rate of speed and control over his vehicle and to exercise care to avoid colliding with the other vehicle (s, Filippazzo v. Santiago, 277 AD2d 419 [2'ldDept., 20001). Moreover, neither did plaintiff produce evidentiary proof sufficient to establish the existence of a material issue of fact as to whether the Time Warner vehicle caused the accident. In opposition to Time Warner's primafacie showing, defendants NSLIJHS and Hill did riot come forward with a, non-negligent explanation for the rear-end collision with plaintiff's vehicle. Rather, defendant Hill admitted that he had momentarily averted his eyes from the traffic in front of him, proximately causing the collision. Accordingly, Time Warner and Dunn's motion for summary judgment dismissing plaintiff's complaint and all cross claims is granted. As to the motion of defendants NSLIJHS and Hill, they failed to establish theirprimufilcie entitlement to summary judgment in their favor dismissing the complaint and all cross claims. In view of the conflicting statements of the parties, a triable issue of fact exists as to whether the Time Warnei- vehicle collided with plaintiff's vehicle after it was rear-ended by the NSLIJHS vehicle. The cross motion of defendants NSLIJHS and HiII for an order granting summary judgment dismissing the complaint is denied. Insofar as the cross motion seeks dismissal of cross claims, the motion is denied as no cross claims have been asserted by Time Warner and Dunn. Based on the foregoing, it is ORDERED that this motion (sequence 004) by defendant, Time Warner Entertainment Company, L.P. and Michael Dunn, for an order granting renewal of its prior motion for summary .judgment dismissing the complaint and all cross-claims against it is determined as follows: renewal is granted and, upon renewal, the motion is granted; and it is further [* 5] Nlitchell v. North Shore L1.7, et al. Index No.: 2690412008 Page 5 ORDERED that the cross motion (sequence 005) by defendant North Shore Long Island Jewish Health System Inc. and Gregory Hill for summary judgment dismissing the complaint and all cross claims is denied. Dated: U C T 0 4 2011 i HON. WILLIAM B. REBOLINI, J.S.C. - FINAL DISPOSITION - X NON-FINAL DISPOSITION

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