Wiston v David

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Wiston v David 2011 NY Slip Op 33355(U) December 8, 2011 Supreme Court, Nassau County Docket Number: 10493/11 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 TRIAL/IAS PART 32 NASSAU COUNTY JENNA WISTON Plaintiff - against - Index No. : 10493/11 Motion Seq. No. : 01 Motion Date: 10/24/11 MAWELL DOUGLAS DAVID and JEFFREY DAVID Defendants. The foUowine papers have been read on this motion: Papers Numbered Notice of Motion Affrmation Affdavit and Exhbits AffIrmation in OPJJ osition and Exhbit Reply Afrmation 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 defendants on the issue of liabilty upon the ground that there are no triable issues of fact. Defendants oppose the motion. Ths action arses from a motor vehicle accident which occured on May 28 , 2011 , at approximately 3 :54 a. m. The accident involved a 2009 Nissan operated by defendant Maxwell Douglas David and owned by defendant Jeffrey David , in which plaintiff was a passenger, on SR 17 in an eastbound direction in the Town of Goshen, County of Orange , State of New York. Plaintiff commenced the action by the fIing and service of a Sumons and VerifIed Complaint on or about July 12 , 2011. Issue was joined on or about September 23 2011. ," [* 2] Briefly, it is plaintiffs contention that , on the evening of May 27 2011 , she attended a concert in Bethel , New York with defendant Maxwell Douglas David. Plaintiff states that she and defendant Maxwell Douglas David decided that, afer the concert , they would sleep in the car in a hotel parking lot since there were no hotel rooms available. After the concert , defendant Maxwell Douglas David drove the vehicle to a nearby hotel parking lot and told plaintiff that she should get in the back seat where she would be more comfortable and sleep as they would stay there for the evening. Plaintiff agreed to do so and fell asleep. Plaintiff states that at some time later, while she was stil sleeping in the back seat of the vehicle , she was awakened by a crash. Plaintiff alleges that, at some time afer the crash, when she was in the hospital , she spoke to defendant Maxwell Douglas David as to what had happened on the date of the accident and he allegedly told her that he had called and found a vacancy in a hotel and decided not to wake plaintiff until they arived at said hotel. Defendant Maxwell Douglas David also allegedly told plaintiff that, while driving to the hotel , he lost control of the vehicle and went into a ditch along an exit ramp strking a guard rail. Plaintiff claims defendat Maxwell Douglas David apologized profusely for the happening of the accident and stated that it was all his fault. Plaintiff fuer submits the Police Accident Report in support of her motion. The Accident Description/OffIcer s Notes in said report read (v)ehicle was traveling eastbound on State Route 17 at 0356 hours , and attempted to merge right onto exit 124. Vehicle lost control and went into the ditch along the exit ramp, strking the gudrail. Propert damage to approximately 75 feet to the guardrail on the east side of the exit ramp. Driver stated that he was tired and unamilar with the roadway. In opposition to the motion, defendants argue that plaintiffs motion should be denied because there are questions of fact as to the happening of the accident. According to defendant Maxwell Douglas David , while he and plaintiff were parked in the hotel parking lot , he woke [* 3] plaitiff to inform her that he would be drving to another hotel and plaintiff responded that she did not care if they went to the other hotel but she wanted to remain in the back seat to sleep. Thus, plaintiff was aware that defendant Maxwell Douglas David would be moving the vehicle to drve to the hotel with the vacancy. Ths is in contravention to plaintiffs assertion that defendat Maxwell Douglas David never woke her to tell her that he was driving to another hotel and that she only woke up when the accident occured. Defendants argue that , based upon the conficting afdavits from defendant Maxwell Douglas David and plaintiff, there are questions of fact regarding the circumstances of the surounding accident, paricularly with respect to the comparative negligence of plaintiff. Defendants also argue that plaitiff s sumar judgment motion should be denied as prematue because limited discovery has been conducted and Examinations Before Trial have not yet taen place. It is well settled that the proponent of a motion for sumar judgment must make a prima facie showig of entitlement to judgment as a matter of law by providing suffcient evidence to demonstrate the absence of material issues of fact. Century- Fox Film Corp. 3 N. Hospital, See Silman 2d 395 , 165 N. Y.S. 2d 498 (1957); 68 N. Y.2d 320 508 N. Y.S. 2d 923 (1986); 557 427 N. Y.S.2d 595 (1980); Bhatti v. Zuckerman Alvarez v. Twentieth v. v. Prospect City of New York, 49 N. Roche 140 A.D. 2d 660 528 N. Y.S.2d 1020 (2d Dept. 1988). To obtan sumar judgment, the moving par must establish its claim or defense by tendering sufcient 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. , Inc. 46 N. include deposition trancripts , CPLR 3212 (b); Olan v. See Friends of Animals, Inc. 2d 1065 416 N. Y.S.2d 790 (1979). Such evidence as well as other proof anexed to an attorney Farrell Lines Inc. 64 N. 2d 1092 489 N. may s affIrmation. S.2d 884 (1985). See [* 4] If a suffcient showing is demonstrated , the burden then shifts to the prima facie 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 judgment and necessitates a trial. 2d 595 (1980), See Zuckerman v. City of New York 49 N. Y.2d 557 , 427 When considering a motion for summar judgment , the fuction supra. of the cour is not to resolve issues but rather to determine if any such material issues of fact exist. 395 , 165 N. Y.S.2d 498 Mere conclusions or unubstatiated allegations are insuffcient to raise a trable (1957), supra. issue. Twentieth Century- Fox Film Corp. 3 N. Y.2d v. See Silman See Gilbert Frank Corp. v. Federal Ins. Co. 70 N. Y.2d 966 525 N. 2d 793 (1988). Furer, to grant sumar judgment, it must clearly appear that no material triable issue of fact is presented. The burden on the cour in deciding this 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. Albany County, Johnson 147 AD. 2d 312, 543 N. 2d 247 428 N. Y.S. 2d 665 (1980); S.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. Cross 112 AD. 2d 62 , See Barrett 491 N. 21 AD. 2d 156 249 N. Jacobs , 255 v. 2d 353 (pt Dept. 1985). The evidence should be constred in a light most favorable to the par moved Garfield, Da/iendo against. See Weiss 2d 458 (3d Dept. 1964). Plaintiff, in her motion, has demonstrated prima facie entitlement to sumar judgment on the issue of liabilty against defendants. Therefore, the burden shifts to defendants to demonstrate an issue of fact which precludes sumar York 49 N. Y.2d 557 , 427 N. judgment. See Zuckerman v. City a/New S.2d 595 (1980). After applying the law to the facts in this case , the Cour fInds that defendants have meet their burden to demonstrate an issue of fact which precludes sumar judgment. As previously stated, in rendering a decision on a sumar judgment motion, the Cour is not to resolve issues of fact or determne matters of credibilty. The Cour fInds that the facts and circumstances (./ - . / [* 5] surounding the motor vehicle accident do indeed involve determining the credibilty of the paries involved in said accident. The Cour holds that the paries ' conflcting versions of the accident raise trable issues of fact. Therefore, based upon the foregoing, plaitiffs motion , order granting parial It is pursuant to CPLR ~ 3212 , for an sumar judgment on the issue of liabilty is hereby DENIED. fuer ordered that the pares shall appear for a Preliminar Conference on Januar 2012 , at 9:30 a. , at the Prelimiar Conference Desk in the lower level of 100 Supreme Cour Drive, Mineola, New York , to schedule all discovery proceedings. A copy of this Order shall be served on all paries and on the DCM Case Coordinator. There will be no adjournents except by formal application pursuant to 22 NYCRR ~ 125. Ths constitutes the Decision and Order of ths Cour. IIJ DENISE L. SHER, A. ENTERED DEe 12 2011 COUNTY COUNTY CLERK' , NASSAU Dated: Mineola, New York December 8 2011 OFFICE

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