Rotondo v Rankell

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Rotondo v Rankell 2011 NY Slip Op 33213(U) December 8, 2011 Sup Ct, Nassau County Docket Number: 10972/10 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 Cour Justice TRIL/IS PART NASSAU COUNTY ROSEMARIE ROTONDO Index No. : 10972/10 Plaintiff Motion Seq. No. : 01 - against - MotionDates: 11/09/11 ROBERT J. RANKELL Defendant. The followine papers have been read on this motion: Papers Numbered Notic of Motion Affrmation and Exhibits Affrmation in O osition Reply Affirmation Upon the foregoing papers , it is ordered that the motion is decided as follows: Plaintiff moves , pursuant to CPLR 3212 , for an order granting parial sumar judgment against defendant on the issue of liabilty. Defendant opposes the motion. This action arises from a motor vehicle accident which occured on August 15, 2008, at approximately 5:00 p. m., in the eastbound lanes of the Long Island Expressway, approximately one hundred fift (150) feet west of Pow ells Lane (between Exits 39 and 40) in the Vilage Old Westbur, County of Nassau , of State of New York. The accident involved two vehicles, a 2007 Mercedes Benz 350 Convertible owned and operated by plaintiff and a 2007 BMW owned and operated by defendant. Plaintiff commenced the action by the filing and servce of a Summons and Verified Complaint on or about June 7, 2010. Issue was joined on or about June [* 2] 2010. Briefly, it is plaintiffs contention that the accident occured when , while driving in " stop and go Friday afternoon traffic " her vehicle was slowing down to stop in said trafc and was struck from behind by defendant' s vehicle. Plaintiff asserts that the impact to the rear of her vehicle was very heavy and as a result of said impact, her vehicle " flew into the car in front of' her vehicle. The vehicle in front of plaintiffs vehicle then hit another vehicle that was in front of it. Plaintiff claims that defendant was the negligent par in that he failed to maintan a safe distance behind plaintiff s vehicle , as well as failed his duty to exercise reasonable care under the circumstances to avoid an accident. Plaintiff additionally claims that defendant canot come up with a non-negligent explanation for striking plaintiffs vehicle in the rear , nor any conduct that would constitute any comparative negligence on plaintiffs par. It is well settled that the proponent of a motion for sumar judgment must make a prima facie showing of entitlement to judgment as a matter of law by providing suffcient See Silman evidence to demonstrate the absence of material issues of fact. Century- Fox Film Corp. 3 N. Y.2d Hospital 68 N. 2d 320 508 N. 557 427 N. Y.S. 2d 595 (1980); 395 , 165 N. Y.S. 2d 2d 923 (1986); Bhatti v. Zuckerman v. Alvarez 498 (1957); v. Twentieth v. Prospect City of New York, Roche 140 A.D.2d 660 528 N. 49 N. S.2d 1020 (2d Dept. 1988). To obtain sumar judgment , the moving par must establish its claim or defense by tendering sufficient evidentiar proof, in admissible form, sufficient to warant the cour , as a matter oflaw, to direct judgment in the movant's favor. Associated Fur Mfrs., Inc. 46 N. Y.2d See Friends of Animals, Inc. 1065 416 N. 2d 790 (1979). Such evidence include deposition transcripts , as well as other proof anexed to an attorney CPLR 3212 (b); Olan v. Farrell Lines Inc., 64 N. Y.2d 1092 489 N. may s afrmation. 2d 884 (1985). See [* 3] showing is demonstrated, the burden then shifts to the prima facie If a suffcient non-moving par to come forward with competent evidence to demonstrate the existence of a material issue of fact , the existence of which necessarly precludes the granting of supra. Y.S.2d 595 (1980), v. See Zuckerman judgment and necessitates a trial. sumar 2d 557, 427 City of New York 49 N. When considering a motion for sumar judgment , the fuction of the cour is not to resolve issues but rather to determine if any such material issues of exist. (1957), supra. issue. v. See Silman Twentieth Century- Fox Film Corp. fact 3 N. Y.2d 395 , 165 N. Y.S. 2d 498 Mere conclusions or unsubstatiated allegations are insufficient to raise a trable See Gilbert Frank Corp. v. Federal Ins. Co., 70 N. 2d 966, 2d 793 (1988). 525 N. Furher , to grant sumar judgment , it must clearly appear that no material trable issue of fact is presented. The burden on the Cour in deciding ths tye of motion is not to resolve issues of fact or determine matters of credibilty, but merely to determine whether such issues exist. See Barr v. 50 N. Y.2d 247, 428 N. Albany County, Daliendo 2d 665 (1980); Johnson 147 AD.2d 312 543 N. Y.S.2d 987 (2d Dept. 1989). It is the existence of an issue, not See Barrett its relative strength that is the critical and controllng consideration. Y. 520(1931); Crossv. Cross 112 AD.2d 62 , 491 N. 2d353 (p Jacobs, 255 Dept.1985). The evidence should be constred in a light most favorable to the par moved Garfield 21 AD.2d 156 249 N. v. against. See Weiss 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 to exercise reasonable care to avoid collding with the other vehicle pursuat to New York State Vehicle and Traffic Law ("VTL" ) 9 l129(a). Y.S.2d 55 (2d Dept. 2002); 2002). Bucceri v. See Krakowska v. Niksa 298 A. D.2d 561, 749 Frazer 297 AD.2d 304 , 746 N. Y.S. 2d 185 (2d Dept. [* 4] A rear end collsion with a stopped vehicle County of Suffolk 10 N. Y.3d 2d 610 (2008). Such a collsion imposes a duty of explanation on the 906 , 86l N. v. See Hughes v. See Tutrani on the par of the operator of the offending vehicle. case of negligence prima facie establishes a Cai 55 AD.3d 675 866 N. Gregson 2d 253 (2d Dept. 2008); AD. 3d 358 827 N. 2d 181 (2d Dept. 2006); AD.2d 507, 761 N. v. operator. Terry, 35 Airborne Express Freight Corp. , 306 2d 329 (2d Dept. 2003). Since a rear-end collsion v. Belitsis with a stopped or stopping vehicle creates of liability with respect to the operator of the rearost vehicle , case prima facie the operator is therefore required to rebut the inference of negligence by providing a non-negligent explanation for the collsion. See Francisco v. Schoepfer 30 AD. 3d 275 , 817 N. Y.S. 2d 52 (1 Manzo 295 AD.2d 487 , 744 N. st Dept. 2006); McGregor 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 drver who follows , since the following drver is under a duty to maintain a safe distace between his See Shamah or her car and the car ahead. Richmond County Ambulance Service, Inc. 279 AD.2d 564 , 719 N. 2d287 (2d Dept. 200 I). Drivers must maintain safe distances 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 91129(a); Johnson v. conditions including stopped vehicles. Philips 261 AD.2d 269 690 N. S.2d 545 (1st 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 A. D.2d 419 , 716 N. 710 (2d Dept. 2000). Plaintiff, in her motion , has demonstrated prima facie entitlement to sumar judgment on the issue of liabilty against defendant. Therefore, the burden shifts to defendant to demonstrate an issue of fact which precludes sumar York 49 N. Y.2d 557 , 427 N. Y.S.2d 595 (1980). judgment. See Zuckerman v. City of New [* 5] After applying the law to the facts in this case , the Cour fmds that defendant has failed to meet his burden to demonstrate an issue of fact which precludes sumar judgment. Defendant failed to submit any evidence to establish a non-negligent explanation for strking plaintiffs vehicle in the rear. In opposition , defendant submitted only an Attorney s Affrmation which did not dispute any of plaintiff s factual contentions nor set fort any facts or evidence to refute that defendant was negligent as a matter of law. The Cour finds that the undisputed facts on the record establish that defendant's vehicle strck plaintiff s vehicle in the rear when plaintiffs vehicle was stopping in traffic. Defendant has offered no excuse nor a non-negligent explanation for the occurence of the rear-end collsion. Accordingly, in light of defendant's failure to meet his burden and raise any of fact , plaintiffs motion , pursuant to CPLR ~ 3212 , for an order granting paral trable issue sumar judgment against defendant on the issue ofliabilty is hereby GRATED. All paries shall appear for a Pre- Trial Conference in Nassau County Supreme Cour Differentiated Case Management Par (DCM) at 100 Supreme Cour Drive , Mineola, New York on Januar 17 2012 , at 9:30 a. This constitutes the Decision and Order of ths Cour. Dated: Mineola, New York December 8 , 2011 ENTERED DEC 0 9 2011 NASSAU COUNTY COUNTY GLIRK' OFFICE

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