Karakas v Rinaldi

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Karakas v Rinaldi 2011 NY Slip Op 33179(U) December 2, 2011 Supreme Court, Nassau County Docket Number: 21459/10 Judge: Denise L. Sher 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] SCAN SHORT FORM ORDER SUPREME COURT OF THE STATE OF NEW YORK PRESENT: HON. DENISE L. SHER Acting Supreme Court Justice TRIAL/IAS P ART 32 NASSAU COUNTY MUSTAFA KARAKAS Plaintiff Index No. : 21459/10 Motion Seq. No. : 01 Motion Date: 10/17/11 - against - GREGORY P. RIALDI Defendant. The followine papers have been read on this motion: Papers Numbered Notice of Motion. Affidavit. Affirmation and Exhibits and Memorandum of Law Affirmation in Opposition and Exhibits Upon the foregoing papers , it is ordered that the motion is decided as follows: Plaintiff moves , pursuant to CPLR 93212 , for an order granting parial sumar judgment against defendant on the issue of liability upon the ground that there are no triable issues of fact and that , as a matter oflaw , plaintiff is entitled to such judgment; and , upon granting summar judgment , for an order setting this matter down for an assessment of damages. Defendant opposes the motion. This action arises from a motor vehicle accident which occured on December at approximately 6:40 a. Road, Franlin Square , 3 , 2009, , at or near the intersection of Hempstead Turnpike and Lincoln County of Nassau , State of New York. The accident involved two vehicles , a 1998 Mercedes Benz owned and operated by plaintiff and a 1994 Ford Pick- ," [* 2] Truck owned and operated by defendant. Plaintiff commenced the action by the filing and service of a Sumons and Verified Complaint on or about November 17 2010. Issue was joined on or about March 15 2011. Briefly, it is plaintiffs contention that at the time of the accident his vehicle was stopped at a red light on Hempstead Turpike , and had been so for approximately ten seconds when it was violently struck in the rear by defendant's vehicle. In his Affdavit in Support of his motion , plaintiff states (t)here is nothing to my knowledge and belief that I could have done to avoid this accident. My actions of obeying the New York State Vehicle and Traffic Laws were obviously no factor in causing this accident. Based upon Defendant' s conduct and the physical objective facts , it is clear that the Defendant's negligence was the sole cause ofthis accident and that the Defendant's conduct fell well below the standard of reasonable care that one should employ and utilize when operating a motor vehicle within the State of New York." Plaintiff argues that there are no questions of fact to be determined by a jur in connection with the issue of liability in this matter. Defendant first argues that plaintiff s summar judgment motion should be denied as premature because the Examinations Before Trial have not yet been conducted. In opposition to plaintiffs motion , defendant submits his own Affidavit in which he claims that he has a nonSee negligent reason for not being able to stop and thus there are issues of fact in this matter. Defendant's Affirmation in Opposition Exhibit A. Defendant states " (o)n Thursday, December 2009 , at 6:40 a. , I was traveling about 25 m. h. westbound on Hempstead Turpike approaching Lincoln Road in Hempstead , New York. It was a windy, rainy morning. When I was about 80' from the intersection there was a small yellow school bus in the left of the two west bound lanes. I then began to apply my brakes and stared to slow down. I tured on the right directional signal to go into the right lane , with my foot stil on the brake pedal. However [* 3] after entering the right lane , the brakes were no longer slowing down my vehicle. The front of my vehicle struck the rear of plaintiff s vehicle. After the accident I exited my vehicle and saw a white plastic garbage bag and other garbage including empty egg carons , papers and cardboard on the roadway under my tires , which was the cause of my being unable to stop or tur the vehicle to avoid the impact. The garbage placed at the curb for garbage pick up apparently was blown into the street by the weather.... Police responded to the scene and I advised the police offcer of the garbage that caused the accident. The police offcer confirmed the garbage as the cause of the accident. I had not experienced any problems with the brakes or steering prior to the accident. I did not experience any problems with the brakes or steering after the accident. I drove my vehicle away from the accident scene without any problems with the steering or brakng. See id. Defendant also sUQmits the Police Accident Report in support of his opposition , in which the responding offcer wrote in the Accident Description/Officer s Notes section MV1 and MV2 were in coliision. MV1 OP stated that he tried to stop but due to debris in the (sic) road and slippery pavement his vehicle skidded and struck MV2. Findings of investigation revealed the cause. See Defendant' s Affirmation in Opposition Exhibit C. Defendant therefore argues that issues of fact exist with respect to the allegations of his negligence. It is well settled that the proponent of a motion for sumary judgment must make a prima facie showing of entitlement to judgment as a matter of law by providing sufficient See Silman evidence to demonstrate the absence of material issues of fact. Century- Fox Film Corp. 3 N. Y.2d Hospital 68 N. Y.2d 320 508 N. 557 427 N. S.2d 595 (1980); Bhatti 395 , 165 N. Y.S.2d S.2d 923 (1986); v. Alvarez 498 (1957); Zuckerman v. Twentieth v. v. Prospect City of New York 49 N. Y.2d Roche 140 A.D. 2d 660 528 N. Y.S.2d 1020 (2d Dept. [* 4] 1988). To obtain sumar judgment , the moving par must establish its claim or defense by tendering sufficient evidentiar proof, in admissible form , suffcient to warant the cour, as a matter oflaw , to direct judgment in the movant's favor. Associated Fur Mfrs. , See Friends of Animals, Inc. Inc. 46 N. Y.2d 1065 416 N. Y.S. 2d 790 (1979). Such evidence may include deposition transcripts , as well as other proof annexed to an attorney v. Olan CPLR 9 3212 (b); Farrell Lines Inc. 1092 See 489 N. Y.S. 2d 884 (1985). showing is demonstrated , the burden then shifts to the prima facie If a sufficient 64 N. Y.2d s affrmation. non-moving par to come forward with competent evidence to demonstrate the existence of a material issue of fact , the existence of which necessarily precludes the granting of sumar See Zuckerman judgment and necessitates a trial. supra. S.2d 595 (1980), v. City of New York 49 N. Y.2d 557 , 427 When considering a motion for sumar judgment , the fuction . of the court is not to resolve issues but rather to determine if any such m terial issues of fact exist. (1957), supra. issue. v. See Silman Twentieth Century- Fox Film Corp. 3 N. Y.2d 395 , 165 N. Y.S.2d 498 Mere conclusions or unsubstantiated allegations are insufficient to raise a triable v. See Gilbert Frank Corp. Federal Ins. Co. 70 N. Y.2d 966 525 N. Y.S.2d 793 (1988). Furher , to grant summar judgment , it must clearly appear that no material triable issue of fact is presented. The burden on the court in deciding this tye of motion is not to resolve issues of fact or determine matters of credibility, but merely to determine whether such issues exist. See Barr v. 50 N. Y.2d 247, 428 N. Y.S.2d 665 (1980); Albany County, Johnson 147 A.D. 2d 312 543 N. 2d 987 (2d Dept. 1989). It is the existence of an issue , not its relative strengt that is the critical and controllng consideration. Y. 520 (1931); Cross v. Daliendo See Barrett v. Jacobs , 255 Cross 112 A.D.2d 62 , 491 N. Y.S.2d 353 (1S! Dept. 1985). The evidence should be construed in a light most favorable to the par moved Garfield 21 A.D.2d 156 249 N. against. See Weiss S.2d 458 (3d Dept. 1964). When the driver of an automobile approaches another automobile from the rear , he or she is bound to maintain a reasonably safe rate of speed and control over his or her vehicle and [* 5] to exercise reasonable care to avoid colliding with the other vehicle pursuant to New York State v. Bucceri (2d Dept. 2002); Niksa 298 AD.2d 561 , 749 N. Y.S. 2d v. See Krakowska Vehicle and Traffic Law 9 1129(a). Frazer 297 AD. 2d 304 , 746 N. Y.S.2d 185 (2d Dept. 2002). case of negligence prima facie A rear end collision with a stopped vehicle establishes a v. See Tutrani on the par of the operator of the offending vehicle. County of Suffolk 10 N. Y.3d 906 861 N. Y.S. 2d 610 (2008). Such a collsion imposes a duty of explanation on the v. See Hughes Cai 55 AD. 3d 675 866 N. Y.S.2d 253 (2d Dept. 2008); AD.3d 358 827 N. Y.S.2d 181 (2d Dept. 2006); D.2d 507 , 55 v. Belitsis Gregson v. operator. Terry, 35 Airborne Express Freight Corp. , 306 761 N. Y.S.2d 329 (2d Dept. 2003). As noted , a rear-end collsion with a stopped or stopping vehicle creates a case of liabilty with respect to the operator of the rearost vehicle , prima facie thereby requiring the operato to rebut the inference of negligence by providing a non-negligent explanation for the collsion. v. See Francisco McGregor v. Schoepfer 30 AD. 3d 275 , 817 N. Y.S. 2d 52 (1 Manzo 295 AD. 2d 487 , 744 N. st Dept. 2006); S.2d 467 (2d Dept. 2002). Vehicle stops which are foreseeable under the prevailing traffic conditions , even if sudden and frequent , must be anticipated by the driver who follows , since the following driver is See Shamah under a duty to maintain a safe distance between his or her car and the car ahead. Richmond County Ambulance Service, Inc. 279 AD. 2d 564 , 719 N. Y.S. 2d 287 (2d Dept. 2001). Drivers must maintain safe distaces between their cars and the cars in front of them and this rule imposes on them a duty to be aware of traffc See VTL 9 1129(a); Johnson v. Philips 261 A. D.2d conditions including stopped vehicles. 269 690 N. Y.S.2d 545 (pt Dept. 1999). Drivers have a duty to see what should be seen and to exercise reasonable care under the circumstances to avoid an accident. See Filppazzo v. Santiago, 277 AD.2d 419 , 716 N. Y.S.2d 710 (2d Dept. 2000). Plaintiff, in his motion , has demonstrated prima facie entitlement to summar judgment [* 6] on the issue of liability against defendant. Therefore , the burden shifts to defendant to demonstrate an issue of fact which precludes summar judgment. v. See Zuckerman City of New York 49 N. Y.2d 557 , 427 N. Y.S. 2d 595 (1980). After applying the law to the facts in this case , the Cour finds that defendant has demonstrated an issue of fact which precludes summar judgment by providing a non-negligent explanation for the collsion , specifically the alleged condition of the debris on the road which caused his car to skid and strike plaintiff s vehicle. As discussed above , said condition was confirmed in the Police Accident Report. Therefore , plaintiffs motion , pursuant to CPLR 93212 , for an order granting parial sumar judgment against defendant on the issue of liability upon the ground that there are no triable issues of fact and that , as a matter of law, plaintiff is entitled to such judgment; and , upon granting summar judgment , for an order setting this atter down for an assessment of damages is hereby DENIED. All paries shall appear for a Compliance Conference in Nassau County Supreme Cour IAS Par 32 , on March 6 , 2012 , at 9:30 a. This constitutes the Decision and Order of this Court. ENT (7 cV DENISE L. SHER, A. eNTERED Dated: Mineola , New York December 2, 2011 OEe 06 2011 HAHAU COUNTY cOUTY CLIB" OFFICE

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