Schrenzel v Scotto

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Schrenzel v Scotto 2012 NY Slip Op 31328(U) May 4, 2012 Supreme Court, Nassau County Docket Number: 12203/11 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 Court Justice TRIAL/IAS PART 31 NASSAU COUNTY PATRICIA R. SCHRENZEL Index No. : 12203/11 Motion Seq. No. : 01 Motion Dates: 04/23/12 Plaintiff - against - GENA A. SCOTTO and STEPHEN L. SCOTTO Defendants. The followin papers have been read on this motion: Papers Numbered Notice of Motion Affrmation and Exhibits Affirmation in O osition Reply Affrmation 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 liability. Defendants oppose the motion. This action arises from a motor vehicle accident which occured ?:;i ;:I' J"' on March 17 , 2011 , at approximately 1 :45 p. , in the ,parking),;t,lot of the Americana Shopping Center in Manasset ,;;r-."t i'",,, ;h. 't\'',"c ;:"R"' ;iL: :t, ::,. New York. The accident involved two vehicles , a 2003 Honda operated by plaintiff and a 2009 Cadilac owned by defendant Stephen L. Scotto - and operated by defendant Gena A. Scotto. Plaintiff commenced the action by the filing and service of a Summons and Verified Complaint on or about August 19 2011. Issue was joined on or about September 8 , 2011. Briefly, it is plaintiffs contention that the accident occured when plaintiff, while [* 2] operating her vehicle , was stopped at a stop sign within the aforementioned parking lot when her vehicle was struck in the rear by defendants ' vehicle. In support of her motion , plaintiff submits her own Examination Before Trial (" EBT" See testimony, as well as the EBT testimony of defendant Gena A. Scotto. Plaintiffs Affirmation in Support Exhibits C and D. Plaintiff states that defendant Gena A. Scotto testified that , when her vehicle strck the rear of plaintiff s vehicle , she was really not paying attention and that the only excuse defendant Gena A. Scotto offered for her vehicle striking plaintiffs vehicle was that she was probably distracted. Plaintiff claims that defendant Gena A. Scotto was the negligent pary in that she failed to maintain a safe distance behind plaintiff s vehicle , as well as failed her duty to exercise reasonable care under the circumstances to avoid an accident. Plaintiff additionally claims that defendant Gena A. Scotto canot come up explanation for striking plaintiffs with a reasonable excuse or a non-negligent vehicle in the rear. In opposition to plaintiffs motion , defendants argue that " plaintiff has failed to demonstrate that the purorted hit in the rear was unexcused or not justified by a non-negligent explanation. The plaintiff has furter failed to demonstrate that she did not contribute to the happening of the accident." Defendants claim that defendant Gena A. Scotto testified at the EBT that , after both plaintiff s vehicle and her own vehicle were stopped at the stop sign , because plaintiff s vehicle stared to move , she stared to move her vehicle , but then plaintiff stopped short and her vehicle rolled into plaintiffs vehicle. See Plaintiffs Affrmation in Support Exhibit D. It is well settled that the proponent of a motion for sumar prima facie judgment must make a showing of entitlement to judgment as a matter of law by providing sufficient evidence to demonstrate the absence of material issues of fact. See Silman v. Twentieth [* 3] Century- Fox Film Corp. 3 N. Y.2d 395 , 165 N. Y.S. 2d Hospital 68 N. Y.2d 320, 508 N. Y.S.2d 923 (1986); 557 427 N. Bhatti 2d 595 (1980); v. 49 N. Y.2d 2d 1020 (2d Dept. 2d 660 528 N. Roche 140 A. Prospect City o/New York, v. Zuckerman v. Alvarez 498 (1957); 1988). To obtain sumar judgment , the moving par must establish its claim or defense by tendering suffcient 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. 2d 1065 See Friends of Animals, Inc. 416 N. Y.S.2d 790 (1979). Such evidence include deposition transcripts , as well as other proof anexed to an attorney v. Olan CPLR ~ 3212 (b); Farrell Lines Inc. 1092 489 N. s affrmation. See S.2d 884 (1985). showing is demonstrated , the burden then shifts to the prima facie If a suffcient 64 N. Y.2d may 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 supra. Y.S.2d 595 (1980), v. See Zuckerman judgment and necessitates a trial. City of New York 49 N. Y.2d 557 , 427 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 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 insuffcient to raise a triable See Gilbert Frank Corp. v. Federal Ins. Co. 70 N. Y.2d 966 , 525 NY. 2d 793 (1988). Furher , to grant sumar 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. Albany County, Johnson 147 A.D.2d 312 543 N. 50 N. 2d 247 428 N. Y.S.2d 665 (1980); Daliendo 2d 987 (2d Dept. 1989). It is the existence of an issue , not its relative strength that is the critical and controllng consideration. See Barrett v. Jacobs , 255 [* 4] Cross Y. 520 (1931); v. Cross 112 AD.2d 62 , 491 N. Y.S.2d 353 (1st Dept. 1985). The evidence should be construed in a light most favorable to the par moved Garfield 21 AD.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 to exercise reasonable care to avoid collding with the other vehicle pursuant to New York State Vehicle and Traffc Law ("VTL" ) ~ 1129(a). Y.S. 2d 55 (2d Dept. 2002); Bucceri v. v. See Krakowska Niksa 298 A. D.2d 561 , Frazer 297 AD.2d 304 , 746 N. Y.S. 2d 749 185 (2d Dept. 2002). A rear end collsion with a stopped vehicle establishes a County of Suffolk 10 N. Y.3d 2d 610 (2008).. Such a collsion imposes a duty of explanation on the operator. 906 861 N. v. See Hughes v. See Tutrani on the par of the operator of the offending vehicle. case of negligence prima facie Cai 55 AD.3d 675 866 N. Gregson S.2d 253 (2d Dept. 2008); AD.3d 358 827 N. S.2d 181 (2d Dept. 2006); AD.2d 507 , 761 N. v. Terry, 35 Airborne Express Freight Corp. , 306 S.2d 329 (2d Dept. 2003). Of course , Belitsis v. in a rear-end collsion , the frontmost driver has the duty not to stop suddenly or slow down without proper signaling, pursuant to VTL ~ 1163 , so as to avoid a collsion. Gaeta v. Carter 6 AD.2d 576 , 775 N. Y.S.2d 86 (2d Dept. 2004); AD.2d 379 , 729 N. As noted , Purcell v. See Axelsen , 286 S.2d 495 (2d Dept. 2001). 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 operator to rebutthe inference of negligence by providing a non-negligent explanation for the collsion. McGregor See Francisco v. v. Schoepfer 30 AD. 3d 275 817 N. Y.S. 2d 52 (1 st Dept. 2006); Manzo 295 A. D.2d 487 , 744 N. Y.S.2d 467 (2d Dept. 2002). Vehicle stops which are foreseeable under the prevailng traffic conditions , even if sudden and frequent , must be anticipated by the driver who follows , since the following driver is [* 5] See Shamah under a duty to maintain a safe distance between his or her car and the car ahead. 2d 564 , Richmond County Ambulance Service, Inc. 279 A. 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 this rule imposes on them a duty to be aware of traffic conditions including stopped vehicles. See Johnson VTL ~ 1129(a); v. Phillps 261 A. 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 v. See Filppazzo circumstances to avoid an accident. Santiago 277 AD. 2d 419 , 716 N. Y.S.2d 710 (2d Dept. 2000).. In the context of a rear end collsion , a claim that the driver of the lead vehicle made a See sudden stop, stranding alone , is insufficient to rebut the presumption of negligence. v. Campbell City of Yonkers 37 A. 3d 750 833 N. Y.S.2d 101 (2d Dept. 2007); Ayach Rainfordv. Han 18 AD.3d 638 Ghazal 25 A. D.3d 742 , 808 N. Y.S. 2d 759 (2d Dept. 2006); S.2d 645 (2d Dept. 2005). 795 N. As noted , conclusory assertions that the driver of the lead vehicle made a sudden unexpected stop is , without more , insufficient to rebut the presumption of negligence. v. Vecchio See Hildebrand 304 AD.2d 749 , 758 N. Y.S.2d 666 (2d Dept. 2003); Manzo, supra; Dileo v. Greenstein 281 A. 2d 586 , 722 N. McGregor S.2d (2d Dept. 2001); Shamah Richmond County Ambulance Services, Inc. , supra. The Appellate Division , Second Deparent , has held that the explanation that the stopped vehicle came to a sudden stop, standing alone , is insufficient to rebut the inference of negligence. See Geschwind Hoffman 285 A. D.2d 448 , 727 N. 2d 155 (2d Dept. 2001). Thus , a sudden stop coupled with other evidence , such as a failure to comply with the VTL with respect to proper signaling Mundo v. (see Purcell City of Yonkers 249 A. an emergency created by a non-par v. Axelsen, supra), 2d 522 , 672 N. (see Kienzle v. or stopping in high speed traffic (see S.2d 128 (2d Dept. 1998) or in response to McLoughlin 202 AD. 2d 299 610 [* 6] N. Y.S.2d 771 (1 st Dept. 1994)) can all constitute a non-negligent explanation for the rear-end collsion. Plaintiff, in her motion , has demonstrated entitlement to sumar judgment prima facie on the issue of liability against defendants. Therefore , the burden shifts to defendants to demonstrate an issue of fact which precludes sumar judgment. v. See Zuckerman City of New York, supra. After applying the law to the facts in this case , the Cour finds that defendants have failed to meet their burden to demonstrate an issue of fact which precludes summar judgment on the issue of liabilty. Defendants offer a conclusory assertion that plaintiffs vehicle made a sudden unexpected stop and do not offer any furher evidence in support of said assertion. This , therefore , insufficient to rebut the presumption of negligence. Hoffman See Geschwind supra. Accordingly, in light of defendants ' failure to meet their burden and raise any triable issue of fact , plaintiffs motion , pursuant to CPLR ~ 3212 , for an order granting parial sumar judgment on the issue ofliability is hereby GRANTED. All paries shall appear for a Certification Conference in IAS Par 31 , Nassau County Supreme Court , 100 Supreme Cour Drive , Mineola, New York , on May 15 2012 , at 9:30 a. This constitutes the Decision and Order of this Cour. DENISE L. SHER, A. ENTERED Dated: Mineola, New York May 4 2012 MAY 08 2012 NASSAU COUNTY COUNTY CLERK'S OFFICE

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