Prisco v Quinn

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Prisco v Quinn 2011 NY Slip Op 32637(U) September 30, 2011 Sup Ct, Nassau County Docket Number: 21790/09 Judge: Karen V. Murphy 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] Short Form Order SUPREME COURT - STATE OF NEW YORK TRIAL TERM. PART 15 NASSAU COUNTY PRESENT: Murphv Justice of the Supreme Court Honorable Karen DANIEL PRISCO, Plaintiff(s), -against- Index No. 21790/09 Motion Submitted: 7/18/11 Motion Sequence: 001 JOSEPHINE QUINN, Defendant(s). The following papers read on this motion: Notice of Motion/Order to Show Cause........................ Answering Papers. ... Reply........ ... PJaintiff moves "this Court for an Order granting summary judgment in his favor on the issue of liabilty. Defendant opposes the requested relief. Plaintiff commenced this action as the result of a motor vehicle accident that occurred on September 4 2009 , at approximately 3 :30 p. m. Plaintiff was riding his motorcycle when he alleges that defendant made a left- hand turn across his path of travel , causing plaintiff to strike the rear passenger portion of defendant's car. As a result of the collsion , plaintiff and his motorcycle careened over the back of defendant' s car , coming to rest on the roadway. As a result of this accident , plaintiff suffered various injuries. Defendant was not hurt. Defendant asserts that plaintiff's motion should be denied because it failed to include a full copy of the pleadings , and because plaintiff failed to attach signed transcripts to his motion papers. Lastly, defendant asserts that questions of fact exist , thereby precluding this There is no evidence before this Court that either plaintiff, or defendant , received a summons for a Vehicle and Traffc Law violation as a result of this accident. [* 2] Court from granting summary judgment for plaintiff. As to the first ground raised by defendant , the Court notes that plaintiff submitted a second amended notice of motion , including all ofthe pleadings in this action , on June 23 2011 , and that defendant advised the Court that she would not be submitting any further opposition papers subsequent to plaintiff's fiing of the second amended notice of motion. Plaintiff s original motion was never decided prior to the filing of the second amended motion. Inasmuch as this Court could have properly denied plaintiff's original motion without prejudice to renewal upon submission of proper papers Fiber OptekInterconnect Corp. 84 A. D.3d 1153 924 N. (Fiber Consultants, Inc. v. 2d 276 (2d Dept. , 2011), and acknowledging that plaintiff's second amended motion includes all of the pleadin.gs defendant's first ground for dismissal is rendered moot. This Court wil consider plaintiff's second amended motion submitted to it on June 23 , 2011 , as it includes all of the pleadings and it is in the interests of judicial economy to do so. Plaintiff's motion submitted to the Court on June 23, 2011 includes plaintiff's signed and sworn transcript. It also includes the transcript "of defendant's deposition testimony, which is not signed and sworn by defendant? Jhat the deposition shall be submitted . shall then be signed by the witness before any officer to the witness for examination and . . authorized to administer an oath. If the witness fails to sign and return the deposition within sixty days , it may be used as fully as though signed. . . . CPLR 9 3116( a) requires in relevant part that (t The requirements of CPLR 9 3116(a) are strictly adhered to in the Second Department , whether the deposition sought to be introduced by a par is that of the opposing (Marmer v. IF USA Express, Inc. 73 A. D.3d 868 , 899 part, or of a non- par Martinez v. 123- 16LibertyAvenueRealty Corp. 47 A. S.2d 884 (2dDept. Martinezv. 123- 16 Liberty Avenue Realty Corp. 2d 201 (2d Dept. 901 850 N. 2008 N. Y. Slip Op. 31184(U), 2008 WL 1881542 (Sup. Ct. , Queens County 2008)( defendant submitted a second motion for summary judgment , which was granted , including the transmittal letter pursuant to CPLR 9 3116(a), and a reasonable excuse for having failed to witness , 2010); , 2008); do so on its original motion D. Although the First and Fourth Departments have permitted an unsigned but certified (Morchick deposition transcript of a par to be used by the opposing part as an M. Newell Co. v. 2d 534 (1 Dept. v. Trinity School 257 A. 2d 534 , 684 N. Dept., 1997)), this position " has not 2d 1004 Rice 236 A. 2d 843 , 653 N. commended itselfto the Second Department , and this Court is bound to follow the Second admission , 1999); Defendant's transcript is sworn to by thereporter. [* 3] (Delishi v. Property Owner LLC 597 (Sup. Ct. , Kings County 20111). Department" et. aI. , 31 Misc. 3d 661 666 920 N. Plaintiff's counsel has not established that the transcript was submitted to defendant for examination pursuant to CPLR 9 3116(a). Thus , this Court wil not consider defendant's deposition testimony in the determination of plaintiff's summar judgment motion. This Court recognizes that summary judgment is a drastic remedy and as such should (Andre only be granted in the limited circumstances where there are no triable issues 35 N. 2d 361 , 320 N. 2d 853 , 362 N. S.2d 131 (1974)). Summary judgment should only be granted where the court finds as a matter oflaw that there is no genuine issue 41 A. D.3d 755 837 N. S.2d 594 (2d Dept. , 20071). The Court' s analysis of the evidence must be viewed in the light most (Makaj v. Metropolitan favorable to the non-moving part, in this case the 2d 621 (2d Dept. , 2005D. 18 A. D.3d 625 , 796 N. offact. v. Pomeroy, as to any material fact. (Cauthers v. Brite Ideas, LLC, defendant Transportation Authority, In support of his motion , plaintiff has submitted inter alia his deposition testimony and his affidavit. Plaintiff was traveling eastbound on Jericho Turnpike at or near its intersection with Third Avenue in Garden City Park, New York. Approximately two blocks before the accident location , plaintiff stopped for a red light. After the light turned green plaintiff continued to travel eastbound , in the left lane. Defendant was traveling westbound on the same roadway, at the same intersection , and she was in the left- hand westbound lane. There Defendant was attempting to make a left turn at this T - intersection is no traffic signal device , or stop sign , at that T- intersection. , onto Third Street. In his affidavit , plaintiff asserts that defendant attempted to make the left turn onto Third Avenue in front of my motorcycle , leaving me no opportunity to stop causing my motorcycle to hit her passenger side. Plaintiff further avers that he did not have an or otherwise prevent the vehicle owned by (defendant) from striking the front of my motorcycle. opportunity to avoid the collsion In plaintiff's deposition , which is far more detailed regarding the happening of the accident , plaintiff establishes that it was a clear day, that the roadway was dry, and that it was 3 :30 in the afternoon. Plaintiff further establishes that the roadway at the accident location is straight and level. Plaintiff claims that he first saw defendant's car from a distance of fifteen to twenty feet away, and that his speed was approximately thirt (30) miles per hour. At the time plaintiff first saw defendant's car it was turning into (his) lane. " Plaintiff also testified that " roughly the front half' of defendant' s car was in his lane , when he first saw defendant's car. Plaintiff was unable to estimate the speed of defendant' s car , but testified that it was constantly moving from his first observation of it until impact. According to plaintiff, the speed of defendant' s car appeared to remain constant throughout. ," [* 4] Plaintiff testified that he braked as hard as he could, using both his hand and foot brakes , but that (i)t felt like less than a second" from the time he first saw defendant's car until impact. Plaintiff impacted the right rear quarer of defendant' s car with his motorcycle and plaintiff was thrown over defendant' s trunk and onto the roadway. A driver who has the right-of-way is entitled to anticipate that the other driver wil (Wilson v. Rosedom 82 A. D.3d 970 1141). Nonetheless see also Vehicle and 2d 59 (2d Dept.,. 919 N. (Cox v. a driver with the right-of-way has a duty to usereasonable care to 2d 604 (2d Dept. , 2005D. 23 A. 3d 427 805 N. obey traffic laws which require him or her to yield" Traffc Law 20 11); avoid a collision Nunez, Given that the roadway was straight , dry and level at the accident location , plus the fact that plaintiff claims to have been traveling only thirt (30) miles per hour and admits having seen defendant's car in his lane of travel prior to impact , it cannot be said , without more , that plaintiff has established that he used reasonable care to avoid the collsion. summary judgment and are Siegel, Practice Commentaries, McKinney s Cons Laws 18 A. 3d 696; 794 3212:6, at 2d 442 , 509 N. S.2d 372 125 A. Also , issues of credibilty to be resolved by the trier offact. of NY, Book 7B, CPLR 2d 348 (2d Dept., 2005); generally require the denial of 14; Donato v. ELRAC, Inc., Frame v. Markowitz, (2d Dept. , 1986D. Based solely upon plaintiff's testimony and affidavit , which is all that this Court may properly consider , plaintiff has not established his entitlement to summary judgment as a matter of law on the issue of defendant' s alleged liabilty for this accident (cl Berner Koegel 31 A. 3d 591 819 N. S.2d 89 (2d Dept. , 2006) (plaintiff's summary judgment motion granted where defendant admitted in her deposition testimony that she never saw plaintiff's vehicle although the road was straight and levelD. Plaintiff's summary judgment motion is denied. burden , it is unnecessary to determine whether the defendant's papers submitted in opposition are sufficient to raise a 2d 73 (2d Dept. , 2010); (See Levin v. Khan 73 A. D.3d 991 904 N. 2d 157 (2d Dept. , 2010D. 69 A. D.3d 581 , 893 N. Since the plaintiff has failed to meet his prima facie triable issue of fact Kjono v. Fenning, The foregoing constitutes the Order of this Court. Dated: September 30 , 2011 Mineola , N. ENTERC OCT 05 2011 NASSAU COUNTY COUNTY CLERK' S OFFICE

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