Williams v Shismenos Inc.

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Williams v Shismenos Inc. 2015 NY Slip Op 32531(U) December 3, 2015 Supreme Court, Kings County Docket Number: 505948/2014 Judge: Bernadette Bayne Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [*FILED: KINGS COUNTY CLERK 01/14/2016 1] NYSCEF DOC. NO. 13 INDEX NO. 505948/2014 RECEIVED NYSCEF: 02/10/2016 At an IAS Ter1n, Purl 18 of the Supren1e C~ourt of the State of New York, held in u11d for t11e County of Kings, at the Courthouse, Brooklyn, New York, on the 3'" duy of Deccrnber2015. PRF,SENT: IION. BERNADE'frE DAYNE Justice. ALEXIA WILTJAMS, Plaintiff; DECISION AND ORDER .~ ~ Index No. 505948/2014 ""' ,_ - agai11st - SI-IISMF.NOS INC;,, F. ZAMAN, HER'fZ VEHICLES LLC and EDUARDO MlCIIARI, GLOVER. De±Cndants. The following papers n11mbered 1 to 4 read on this motion: Papers Nu1nbered NoliceofMotionl Affidavits (Affirmations) Annexed_ _ _ _ _ _ _ __ Affirmation in Opp<>sition,_ _ _ _ _ _ _ _ _ _ __ This ac\i(ln \YU~ 2 corrune11ced by ALEXIA WILLIAMS (plainti!1) to recover daniages for serious personal injuries sustai11cd il1 u rear-end motor vehicle collision. By notice r>f motion Ii led on Marcl1 26, 2015 under motion seq\tcncc one, plaintiff now moves this Court for an Order, pursuant l\l CPJ,R §3212, for sun1n1ary judgment on the issue of liability us against defendants [* 2] SHISMENOS INC., and I', ZAMAN (SIIISMENOS and ZM1AN). Sl'IJSMENOS and ZAMAN oppose the motio11 on the b'fou11ds tl1at the motion is pre111aiure and that issues of fact exist that cannot be resolved until further discovery is completed. Background On March 15, 2014, plaintiff\vas a passenger in a motor vehicle owne\l by SIIlSMEN()S and operated by ZAMAN. 7.AMAN hit the rear of the stopped motor vehicle o\vncd by defendant 1-IERTZ VEHICLES LLC and operated by defendant EDUARD() .MICHAF,f, CiLOVER (GLOVER). Tn sttpport of plaintiffs motion for sununary j11dge1nenl on the issue of liability, plaintiff subn1ittcd a sworn affidavit and !be police accident report. Plaintiff, in tl1e affidavit, avers tl1at at the time of the collision, GLO VER's vehicle was al a complete stop \vithin its !ane al a red traffic signal. Moreover, plaintiff avers that 7.AMAN admitted to plaintiff that ZAMAN rear ended GLOVER 's vehicle. Additionally, pursuant to tl1e police accident report, ZAMAN stated to the responding police oflicer at tlie scene that ZAMAN "rear ended" GT.OVER's vehicle when GLOVER stopped .,hart In opposition to plaintiff's 1notion f<ir su1nn1ary judgi11e11t, SHISMENOS and ZAMAN argue that plaintiff's motion should be denied as premahirc and that genuine issues of material fact exist \Vhich cannot be resolved tu1til further discovery is completed. SIIISMENOS and ZAMAN, as prut of the 1notio11 i11 opposition, sub1nitted a copy of the san1e police uccidcnt report but failed to sub1nit an affidavit from either ZAMAN or a person witl1 denying plai11tiff s allegations. -2- per~onal knowledge of the 1u1derlying JUcts [* 3] Sumniaty Judgment Standard "·ro obtain summary judb'lnenl it is neces~ury that tl1e 1novant establish his cause of action or defense 'sufliciently to Wlll"rant the court as a matter of law in <lireclingjudgmcnt' in his favor." (CPLR §3212, subd. (b); Friends of Animals v. Associated F11r Mfrs., 46 N.Y.2d 1065, 1067-1068; 390 N.R.2d 298, 416 N.Y.S2d 790 (1979). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers. Matter of Reden1ption Churcl1 ofClrrist v Williams, 84 A.D.2d 648, 649, 444 N.Y.S.2d 305 (3d Dept 1981); Greenburg v Mllnlon Realty, 43 A.D.2d 968, 969, 352 N.Y.S.2d 494 (2d Dept 1974); Wine grad v New York Univcr.~ity Medical Ce11ter, 64 N.Y.2<l 851, 476 N.E.2d 642, 487 N.Y.S.2d 316 (!985). Additionally, the evidence suhn1ille<l in support or !he 1novant n1ust be \'iewed i11 the ligl1t 1nost favorable lo !he no11-1novant. Marine Midland Bank N.A. v Dino & Artie's Au!<l1natic Tru1is1nission Co., 168 A.D.2d 610, 563 N. Y.S.2d 449 (2d Dept 1990). "The drastic remedy of summary judgn1enl is appropriate only \Vhcrc a thorough examination of the 1nerits clearly den1onstrates the absence of m1y triable issues of fact.'" ld. At 610; accord Piccirillo v Piccirillo, 156 A.D.2d 748, 549 N,Y,S.2d 509 (2d Dept 1989). To defeat a niotion for summary judgment the opposing party "rnust produce evidentiary proof in admissible form sufficient to require a \rial of nlalerial questi<111s ,,r fact on which he rests his claim ... ; mere concll1sions, expressions or hope or unsub~la11tiated allegations or assertions arc insufficient." Zl1ckermun v. City ofNew York, 49 N.Y.2d 557, 404 N.E.2d 718, 427 N.Y.S.2d 595 (1980); sec also, Alvarez v Prospect Hospital, 68 N.Y.2<l 320, 324, 501 N.E.2d 572, 508 N. Y.S.2d 923 (1986); Si!ln1an v. T\ve11tieth Centurv-FoxFilm Corp., 3 N.Y .2d 395, 404, 144 N.E.2d387, 165 N.Y.S2d 498 (1957). -3- [* 4] Decision "'It is well settled that a rear-end collision with a stopped vehicle cstablisl1es a prin1a facie case of liabili!y against tho moving vel1icle and in1poses a duty of explanalion 011 its driver." (Krakowska v. Niksa. 298 A.D.2d 561, 749 N.Y.S.2d 55 (2d Dept 2002); Jeremie v. Tong, 283 A.D.2d 461, 724 N.Y.S.2d 484 (2d Dept2001); Leonard v. CityofNew York, 273 A.D.2d 205, 708 N.Y.S.2d467 (2d Dept2000). According to plaintiff'stmcontradictcd affidavit, it is undisputed that ZAMAN' s vehicle hit GLOV ER's vehicle in the rear when Cilovcr' s \•chicle was stopped. Plaintiffs affidavit avers, inter alia, that prior to the in1pact, GLOVER's vehicle 'vas stopped at the red light of the intersection of Canal and Allen Streets for approximately 3 seconds; GLOVF.R' s vehicle was completely \Vitl1in its lane; the weather \VllS clear; the roads were dry; and visibility was excellenl. P!ai11tiff furtl1er avers tl1at 7AMAN admitted to ]Jlai11tiff and to tl1e responding police officer that ZAMAN rear ended Glover's vehi~le. ZAMAN's action of hilting GLOVER's vehicle in tl1e rear constituted 11egligeoce as a matter of law (Scott v. Kass, 48 A.D.3d 785, 851 N.Y.S.2d 649 {2"' Dep't 201J8); Johnston v. Spoto, 47 A.D.3d 888, 851) N.Y.S.2<l 21J4 (2d Dept 201)8); Ki1nyagarov v. Nixon 'J'axi Corn, 45 A.D.3d 736, 846 N.Y.,'3.2d 309 (2d Dept2007); Niyazov v. Bradford, 13 A.D.3d 501, 786 N.Y.S.2d 582 (2tl De11t 2007). Additionally, the police accident report contains an admission by ZAMAN slating that ZAMAN "was driving behind veh Ill [GT,OVRR's vehicle] when it stopped sl1ort causing [ZAMAN] to rear end veh #I." (Ke1ne11yash v_ McGoey, 306 A.D.2d 516, 762 N.Y.S.2d 629 (2d Dept 2003); Niyazov v_ Bradrord, 13 A.D.3d 501). M<>reover, ZAMAN's ad1ni8sion "explained" \vhy ZAMAN hit GLOVER' s vehicle in the roar; however, that oxpla11ation, even if accepted as true, is insufficient to raise a triable issue of fact. (JollllSton, 47 A.D.3d at 889). Fluthcr, ZAMAN "failed to submit an affidavit frorn [either him~elf] or a person witl1 [* 5] personal knowledge of the facts either denying t\1e plaintiff's allegu\ions or offering a non-negligent explanation for the collision [and] the affirrnation of [ZAMAN' s] a\torr1ey [is1insufficient to raise a triable iss11e of fact." CK\!nyugarov, 45 A.D.3d at 737; ~ Fenko v. Mealing, 43 A.D.3d 856, 84 l N.Y.S.2d 378 (2"d Dep't 2007); Piltser v. Doillla Lee Management Com., 29 A.D.3d 973, 973 N.Y.S.2d 543 (2'' Dep' 2008). Further, SHIS/IAENOS' und ZAMAN's argumc11t that plaintiff's n1otion sl1ould be denied as premah1re since discoveryhus 1101 been completed is \Vithout merit. ZAMAN also had personal knowledge of the relevant facts leading up to the collision. Moreover, SHISMENOS and 7:AMAN failed lo offer any "cvidcntiary basis lo suggcstthuldiscovcry may lead to relevar1tevidence or that facts e~;sential to opposing [p lai11tifi's] motion were exclusively witl1in the kno,vledge and control of[plaintiffj" (CPLR §3212,(f); Kimyngarov, 45 A,D.3d at 737). "lbe mere l1ope or speculatio11 that evidence sufficie11t t<> defeat a 1notion for su1runa1y judgmc11t 1nay be uncovered during the discovery process is insufficient to deny the mo\i(in," (l'enko v. Mealing. 43 A.D.3<l 856; accord Lope~ v. \VS Distrih. Inc., 34 A.D.3d 759, 760, 825 N.Y.S.2d 516 (2d Dept2006); see Kimyagarov, 45 A.D.3d at 737; Pina v. lvferolla, 34 A.D.3d663, 664, 824 N,Y.S.2d41 I (2"' Dep't 2006). Therefore, based on the foregoing, the plaintiff's molion for summary iu<lgtne!lt on liability is granted. Conclusion Accordingly, it is ORDERED, that the plaintiff's motion for .<um111ary j"<lge1nent on liability ;, gran~: 'fhis ,_ -,-; constitutes the Decision and Order of the Court - 'l"he Court finds thal the defendants have failed to raise any triable issues of fact with rcspcdto the:-;i~ above claims. E N T E R J!,,.",,j''Sii" 11~ HON BER.i"!:J\E·tlE BAYif.JE J. s. c. BERNADETTE BAYNE Supreme Court Justice-5-

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