Washington v Fuzailou

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Washington v Fuzailou 2016 NY Slip Op 30450(U) February 18, 2016 Supreme Court, Bronx County Docket Number: 304191/14 Judge: Howard H. Sherman 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. -,itQJ Peb 22 2016 Bronx County Clerk [* 1] I I SUPREME COURT OF THE STATE OF NEW YORf COUNTY OF THE BRONX J --------------------------------------------------------------------1----x Seconda Washington / I Plaintiff I Index No. 304191/14 -againstAleksandr Fuzailou Howard H. Sherman J.S.C. Defendant -------------------------------------------------------------------"-----x Facts and Procedural Background f I In this action plaintiff Seconda Washington! ("Washington") seeks recovery for I injuries alleged to have been sustained on July 6, 1014 when the bicycle he was riding on Coney Island Avenue in Kings County came into lontact with a motor vehicle owned and I . i then being operated by defendant Aleksandr Fu~ailou ("Fuzailou"). ! ' This action was commenced in August 20l4, and issue was joined with the service I I of defendant's answer in November. The ans~er asserts seven affirmative defenses including the causative culpable conduct of the filaintiff. I To date, no Note of Issue has been filed. / ' i Motion and ContentioJ of the Parties ' ' Defendant now moves for an order arjarding summary judgment on the issue of liability dismissing the complaint on the grol nds that the record establishes that his vehicle was stopped when it was struck in the r~ar by plaintiff's bicycle. In support, I [* 2] FILED Feb 22 2016 Bronx County Clerk I defendant submits his affidavit and the depositiori testimony of Police Officer Hamrnad I I Syed , and a copy of the police accident report prepared by Officer Hammad and I 1J]. Fuzailov attests that he had brought authenticated at his deposition [HAMMAD EBT: I his vehicle to a stop in the right of two lanes on toney Island Avenue when he saw a I I bicyclist in his rear-view mirror approaching from behind, and he observed that he was I • I riding "without his hands on the handlebars", antl "holding a cellphone or some similar I I . . device in his hands and it appeared he was looking down at it and not at the road in front I ' of him." Within five to ten seconds of this obser1~ation plaintiff had struck the rear of I I I I • defendant's stopped vehicle. Fuzailov also states fhat his vehicle did not strike any vehicle or object either before or after the accident . In opposition, plaintiff contends that thJ motion must be denied as there are I I unresolved issues of fact, and Washington subJits an affidavit in which he attests that I I i defendant was proceeding in traffic to the left of ~is bicycle when "suddenly, and without I • warning, the defendant's vehicle moved to the right, pinning the handlebars of my bicycle I I' I between the right side of the Infiniti (the rear passenger door area) and a parked ~ar, as I , ' well as striking my left leg." Plaintiff further s~ates that this caused his bicycle tb flip , I I "throwing both the bicycle and my body into the/air []"and causing him to strike portions I I I of a parked vehicle. Washington states that theire was nothing he could do to avoid the accident, nor did he ever speak to a police officJr as to the circumstances of the accident. I ; He also attests that details recorded in the polic~ report of the accident are inaccurate, i.e., 2 ~ Peb 22 2016 Bronx County Clerk [* 3] I i I I I I I that he was riding without his hands on the handlebars; that he was using a cellph<tine I prior to the incident; that he was following defend~nt's vehicle too closely, or at all. He also denies telling the police officer that defendant stopped short, and that he struck his I vehicle. I I In 'eply, defendant contends that plalntiJf' s r"'sion of the bicyde's impact with his vehicle is incredible as it would be impossible to tje "pinned"between two cars, and also I be "flip[ped]" onto the parked car. It is also argu~d that Washington's version of the circumstances of the accident is contradictJd by both the physical evidence , . I asserting a point of impact to the vehicle's rear pafsenger door area, and not to the r~ar of I the vehicle, as is reflected in the damage codes offhe police report, and by plaintiff' sown I contemporaneous statement at the accident scerte, which is admissible as an admission ! I against interest, confirming a rear-end collision/with Fuzailou's vehicle precipitated by that driver's sudden stop. / . Discussion and Cjnclusions I It is by now well settled that the proponen{ of a motion for summary judgment must I make a prima fade showing of entitlement to judgment as a matter of law , tendering I I sufficient evidence to demonstrate the absence df a material issues of fact ( Zuckerman v. I . . City of New York, 49N.Y.2d 557, 404N.E.2d 718[[1980]). To supportthe granting of such a motion, it must clearly appear that no materi I and triable issue of fact is presented, as I I I 3 [* 4] FILED Feb 22 2016 Bronx County Clerk the "drastic remedy should not be granted where t~ere is any doubt as to the existence of I such issues (Braun v. Carey, 280 App.Div. 1019) or Jhere the issue is 'arguable' (Barrett v. Jacobs, 255 N.Y. 520, 522); 'issue-finding, rather thanjissue-determination, is the key to the procedure' (Esteve v. Avad, 271 App. Div. 725, 727). " Sillman v. Twentieth Century-Fox I Film Corp., 3 NY2d 395, 404, 144 N.E.2d 387 [1957]l · Moreover, "'[a]s a general rule, a party do snot carry its burden in moving. for I I summary judgment by pointing to gaps in opponent's proof , but must affirmatively I I demonstrate the merit of its claim or defense'" (Pace~. International Bus. Mach., 248 AD2d i . 690,691, 670 N.Y.S.2d 543 [2d Dept 1998], quoting I1arkin Trucking Co. V. Lisbon Tire Mart, I . 185 AD2d 614, 615,585 N.Y.S.2d 894, [4th Dept. 1992]; see also, Torres v. Mernll Lynch I • I Purch., 95 A.D.3d 741, 945 N.Y.S.2d 78 [1st Dept. 20~2]). I Failure to make such a showing requires the ]denial of the motion, regardless of the sufficiency of the papers in opposition (Alvarez v.IProspect Hospital, 68 NY2d 320,324, I I 501N.E.2d572 [1986]; see also, Smalls v. AII Industlres, Inc., 10 NY3d 733, 735, 883 N.E.2d I 350 [2008], rearg.den. 10 N.Y.3d 885 ). I I Once such a showing is made, the burden shifts to the party opposing the motion I I to produce evidentiary proof in admissible form ~ufficient to establish the existence of I I I material issues of fact requiring a trial of the actiop. (Romanov. St. Vincent's Medical I Center of Richmond, 178 AD2d 467, 577 N.Y.S.2d 311 [2d Dept. 1991];Meridian Mgt. I I I 4 I I I I I [* 5] FILED Feb 22 2016 Bronx County Clerk Corp. v. Cristi Cleaning Serv. Corp., 70 A.D.3d 508J 894 N.Y.S.2d 422 [1't Dept. 2010]). I I I While summary judgment is "is rarely gran~ed in negligence cases since the very question of whether a defendant's conduct amount~ to negligence is inherently a question I I for the trier of fact in all but the most egregious inftances (Wilson v. Sponable, 81 AD:Zd 1, I ' 5; Siegel , Practice Commentaries , McKinney'~ Cons Laws of NY Book 7B, CPLR I ' ' I • C3212:8,p. 430)" Iohnannsdothr v. Kohn, 90 AD2d 842, 456 N.Y.S.2d 86 [2d Dept. 1982), I ' such a motion will be granted "where the facts clearly point to the negligence of one party I I I without any fault or culpable conduct by the oth~r party." (Morowitz v. Naughton,, 150 I AD2d 536 [2d Dept. 1989); see also, Gramble v. Pretision Health, Inc., 267 AD2d 66,67, 699 I I I N.Y.S.2d 393 [1't Dept. 1999]; Spence v. Lake sJrvice Station, Inc., 13 AD 3d 276, 788 I N.Y.S.2d 337 [1st Dept. 2004]). I Upon review of the moving papers, and cotsideration of the applicable law, His the finding of this court that the record here, consisting of the affidavits of the respective ! I parties' providing starkly discrepant versions lof the way the motor vehicle accident I ' ~equiring happened , present issues of fact as to liability an assessment of credibility I ' properly to be resolved by the triers of fact (seJ Talansky v Schulman, 2 AD3d 355, 357, I I 770 NYS2d 48 [1st Dept 2003]; Stewart v Ellisoi:it, 28 AD3d 252, 254, 813 NYS2d 397 [1st I . Dept 2006); Susino v. Panzer. 127 A.D.3d 523, ]7 N.Y.S.3d 120 [1st Dept. 2015]).: The I I unresolved questions include whether or not plaintiff provided the responding police i 5 • pj[@b Feb 22 2016 Bronx County Clerk [* 6] • officer with a contemporaneous description of a rekr-end collision with a stopped .vehicle I thereby creating a presumption of his sole cajsative negligence , as the asserti~n of I defendant's sudden stop , without more, would b~ insufficient to rebut the presumption I of Washington's negligence (see, Santana v Tic-Tak Limo Corp., 106 AD3d 572, 966 N)'S2d i I I 30 [1st Dept 2013]; Corrigan v Porter Cab Corp., 101 AD3d 471, 472, 955 NYS2d 336 [1st Dept 2012]). Accordingly, it is ORDERED that the motion be and hereby I is denied. This shall constitute the decision and ordJr of this court. I I I I I I Dated: February 18, 2016 I I I 6

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