Damis v Barrella

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Damis v Barrella 2011 NY Slip Op 33515(U) December 15, 2011 Supreme Court, Nassau County Docket Number: 1061/10 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 SHELADAMIS and JOSEPH G. DAMIS Plaintiffs TRIALIIAS PART 32 NASSAU COUNTY Index No. : 1061/10 Motion Seq. No. : 02 Motion Date: 12/02/11 - against - FRAK A. BARRLLA , II , FRANK BARRLLA , JR. FRANCES M. BARLLA and PATRICIA A. GOLDSTEIN, Defendants. The following papers have been read on this motion: Papers Numbered Notice of Motion Affirmation and Exhibits Affrmation in Support Upon the foregoing papers , it is ordered that the motion is decided as follows: Counsel for plaintiff on the Counterclaim , Joseph G. Damis , moves , pursuant to CPLR g 3212 , for an order granting plaintiff on the Counterclaim , Joseph G. Damis , summar judgment dismissing the Counterclaim on the basis that he did not breach any duty owed to defendant Patricia A. Goldstein (" Goldstein ). Counsel for plaintiffs in the main action filed an Affirmation in Support of the instant motion. No opposition was submitted by defendants. This action arses from a motor vehicle accident which occured on October 23 2008 , at approximately 8:00 p. m. The accident involved a 2008 G6 Pontiac owned by plaintiff Shela Damis , in which she was a passenger , and operated by plaintiff Joseph G. Damis , a 2008 Audi [* 2] owned and operated by defendant Goldstein and a 2000 Chrsler Concord owned by defendant Fran Barella, Jr. and operated by defendant Frances M. Barella. Said accident took place at or near the intersection of Merrick Road and Grand Avenue , Baldwin , County of Nassau , State of New York. Plaintiffs commenced the action by the filing and service of a Sumons and an Amended Verified Complaint on or about December 31 , 2009. Support Exhibit A. On or about Februar defendant Goldstein. See 23 See Plaintiffs ' Affirmation in 2010 , an Answer with Counterclaim was fied by Plaintiffs ' Affrmation in Support Exhibit B. On or about Februar 7 2011 , a Second Answer with Counterclaim was filed by defendant Goldstein. See Plaintiffs Affirmation in Support Exhibit C. On or about May 6 , 2011 , a Reply to the Counterclaim was served on behalf of the plaintiff on the Counterclaim , Joseph G. Damis. See Plaintiffs Affrmation in Support Exhibit Briefly, this is an action commenced to recover damages for per onal injuries allegedly sustained by plaintiffs as a result of the aforementioned accident which occured when plaintiffs vehicle was struck in the rear in a three-vehicle chain collsion. Plaintiffs submit that , according to the Examination Before Trial (" EBT" ) testimony of defendant Frances M. Barella, she was operating her automobile on Merrick Road at the intersection with Grand A venue when she brought her vehicle to a stop at a red traffic light on Merrck Road. She added that her vehicle was behind defendant Goldstein s vehicle. She testified that , after the traffic light controllng traffic in her direction turned green, she took her foot off of the brake and her vehicle strck rear portion of defendant Goldstein s vehicle. See the Plaintiffs ' Affirmation in Support Exhibit E. Plaintiffs further submit that , according to the EBT testimony of defendant Goldstein , she was operating her automobile on Merrick Road at the intersection with Grand A venue when she brought her vehicle to a stop at a red traffic light on Merrick Road. She added that her vehicle was behind plaintiffs ' vehicle. Her vehicle was stopped for a few seconds when the vehicle [* 3] driven by defendant Frances M. Barella struck her vehicle in the rear. As a result of this impact her vehicle made contact with the rear of plaintiffs ' vehicle. Plaintiffs both testified at their EBTs that their vehicle was stopped for approximately fifteen to twenty seconds at a red traffic light on Merrick Road at its intersection with Grand Avenue when the rear impact to their vehicle occured. Plaintiff Joseph G. Damis furher testified that , when he looked through his reariew mirror immediately after the accident , he observed that the driver of the Audi was talking on a cell phone. Plaintiffs submit that the EBT testimony of the paries establishes that plaintiff on the Counterclaim , Joseph G. Damis , did not breach any duty owed to defendant Patricia A. Goldstein and that said testimony establishes that he was not negligent for the happening ofthe accident. Plaintiffs ' vehicle was stopped at a red traffic light when it was strck in the rear. It is well settled that the proponent of a motion for summar judgment must make a showing of entitlement to judgment as a matter of law by providing sufficient prima facie Fox Film Corp. Y.2d 320 3 N. Y.2d 395 , 165 N. Y.S.2d 498 (1957); 508 N. Y.S.2d 923 (1986); Y.S.2d 595 (1980); Bhatti v. v. See Silman evidence to demonstrate the absence of material issues of fact. Zuckerman Alvarez v. v. Twentieth Century- Prospect Hospital, City of New York, Roche 140 A.D.2d 660 528 N. Y.S. 2d 68 49 N. Y.2d 557, 427 1020 (2dDept. 1988). To obtain sumary 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 of law , to direct judgment in the movant's favor. Mfrs. , Inc. 46 N. Y.2d 1065 416 N. Y.S.2d 790 (1979). Such evidence transcripts , as well as other proof anexed to an attorney Olan v. Farrell Lines Inc. 64 N. v. See Friends of Animals, Inc. 2d 1092 s affirmation. 489 N. Y.S.2d 884 (1985). Associated Fur may include deposition See CPLR 93212 (b); [* 4] showing is demonstrated , the burden then shifts to the prima facie If a sufficient 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 summar See Zuckerman judgment and necessitates a trial. 2d 557 , 427 City of New York 49 N. When considering a motion for summar judgment, the fuction of supra. Y.S.2d 595 (1980), v. the court is not to resolve issues but rather to determine if any such material issues of fact exist. v. See Silman 3 N. Twentieth Century- Fox Film Corp., 2d 498 (1957), 2d 395 , 165 N. Mere conclusions or unsubstantiated allegations are insufficient to raise a triable issue. supra. 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 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. Y.2d 247 428 N. Y.S.2d 665 (1980); Albany County, Daliendo Johnson 147 AD. 2d 312 543 N. Y.S.2d 987 (2d Dept. 1989). It is the existence ofan issue , not Y. 520 (1931); Cross v. Cross 112 AD.2d 62 , 491 N. Y.S.2d 353 (pt Dept. evidence should be construed in a light most favorable to the par moved Garfield, 21 AD.2d 156 249 N. v. See Barrett its relative strength that is the critical and controllng consideration. Jacobs , 255 1985). The 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 to exercise reasonable care to avoid colliding with the other vehicle pursuant to New York State Vehicle and Traffc Law (" VTL" Y.S. 2d 55 (2d Dept. 2002); Bucceri 1129(a). v. See Krakowska v. Niksa 298 AD. 2d Frazer 297 AD. 2d 304 , 746 N. 561 , 749 2d 185 (2d Dept. 2002). prima facie A rear end collision with a stopped vehicle establishes a on the par of the operator ofthe offending vehicle. See Tutrani v. case of negligence County of Suffolk 10 N. YJd [* 5] 906 861 N. Y.S. 2d 610 (2008). Such a collsion imposes a duty of explanation on the operator. 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); v. Belitsis Terry, 35 v. Gregson Airborne Express Freight Corp. , 306 AD.2d 507 , 761 N. Y.S.2d 329 (2d Dept. 2003). case of prima facie Since a rear-end collision with a stopped or stopping vehicle creates a liabilty with respect to the operator of the rearost vehicle , the operator is therefore required to See rebut the inference of negligence by providing a non-negligent explanation for the collsion. v. Francisco Schoepfer 30 AD. 3d 275 817 N. Y.S.2d 52 (pt Dept. 2006); Manzo McGregor v. conditions , even if 295 AD. 2d 487 , 744 N. Y.S.2d 467 (2d Dept. 2002). Vehicle stops which are foreseeable under the prevailing traffc sudden and frequent , must be anticipated by the driver who follows , since the following drver 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 distances between their cars and the cars in front of them and See this rule imposes on them a duty to be aware of traffic conditions including stopped vehicles. VTL 9 1129(a); v. Johnson Philips 261 AD.2d 269 690 N. Y.S.2d 545 (Ist 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. 710 (2d Dept. 2000). prima Plaintiff on the Counterclaim, Joseph G. Damis , in his motion , has demonstrated facie entitlement to sumar judgment dismissing the Counterclaim on the basis that he did not breach any duty owed to defendant Goldstein. Therefore , the burden shifts to the defendants to demonstrate an issue of fact which precludes sumar judgment. See Zuckerman v. City of New York 49 N. Y.2d 557 , 427 N. Y.S. 2d 595 (1980). As previously stated , none of the defendants submitted any opposition to the instant motion and therefore have failed to meet their burden to demonstrate an issue of fact which [* 6] precludes sumar judgment. Accordingly, in light of defendants ' failure to meet their burden and raise any triable issue of fact , plaintiff on the Counterclaim Joseph G. Damis ' motion , pursuant to CPLR ~ 3212 , for an order granting him summar judgment dismissing the Counterclaim against him on the basis that he did not breach any duty owed to defendant Goldstein is hereby GRANTED. All paries shall appear for a Pre- Trial Conference in Nassau County Supreme Cour Differentiated Case Management Par (DCM) at 100 Supreme Court Drive , Mineola, New York on Februar 8 , 2012 , at 9:30 a. This constitutes the Decision and Order of this Court. Dated: Mineola, New York December 15 2011 ENTFQFD DEC 2 0 2011 HASSAU COUNTY COUNTY CLERK' S OFFICE

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