Rivera v Fazio
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Rivera v Fazio 2016 NY Slip Op 33170(U) September 19, 2016 Supreme Court, Westchester County Docket Number: Index No. 55116/15 Judge: David F. Everett Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. FILED: WESTCHESTER COUNTY CLERK 09/20/2016 09:57 AM NYSCEF DOC. NO. 28 INDEX NO. 55116/2015 RECEIVED NYSCEF: 09/19/2016 commence the the 30-day 3D-day statutory statutory time time period period for appeals appeals as ofright of right under under CPLR CPLR 5513 5513 (a), you you are advised advised to serve serve To commence copy of of this this order, order, with with notice notice of of entry, entry, upon upon all parties. parties. a copy SUPREME COURT COURT OF THE THE STATE STATE OF NEW YORK SUPREME NEW YORK COUNTY OF WESTCHESTER WESTCHESTER COUNTY --------------------------------------------------------------------X --------------------------------------------------------------------)( JORGE L. RIVERA RIVERA and FRANCESCA FRANCESCA A. ADELFIO, ADELFIO, JORGE Plaintiff, Plaintiff, Index No. 55116/15 Index No. 55116/15 Motion Sequence Sequence No. 001 Motion Decision and Order Order Decision -against-againstJOANN A. FAZIO, FAZIO, JOANN Defendant. Defendant. ---------------------------------------·----------------------------X --------------------------------------------------------------------)( EVERETT, J. EVERETT, The following following papers papers were were read read on the motion: motion: The Notice of Motion/ Motion/Affirmation Supp/Affidavit Supp/Exhibits A-KlAff of Service Service Notice of Affirmation in Supp/ Affidavit in Supp/Exhibits A-KlAff of .t .· Upon the forgoing forgoing papers, papers, the motion motion is granted. granted. Upon Plaintiffs Jorge Jorge L. Rivera Rivera (Rivera) (Rivera) and Francesca Francesca A. Adelfio Adelfio (Adelfio) (Adelfio) move move for an order, order, Plaintiffs pursuant to CPLR CPLR 3212, 3212, granting granting summary summary judgment against defendant defendant Joann Joann A. Fazio Fazio (Fazio) (Fazio) pursuant judgment against issue ofliability ofliability and for a dismissal dismissal of of her her first, fifth, sixth sixth and and seventh seventh affirmative_ affirmative_ on the issue defenses. defenses. The The motion motion is unopposed. unopposed. · following facts are taken taken from the parties' motion papers, papers, affidavits affidavits and and The following parties' pleadings, pleadings, motion documentary evidence evidence and the record, record, and are undisputed undisputed unless unless otherwise otherwise indicated. indicated. documentary complaint, as amplified amplified in the the bill of of particulars, particulars, alleges alleges that, on July July 19, 2014, 2014, The complaint, Rivera, with with the knowledge knowledge and consent consent of of his wife, wife, Adelfio, Adelfio, the the registered registered owner owner of of a 2011 Kia Kia Rivera, motor vehicle vehicle bearing bearing New York State State license license plate plate number number FPL4439, FPL4439, was was driving driving the the Kia Kia on New York motor Park A Avenue Harrision, New York, when when a vehicle vehicle owned owned and and operated operated by Fazio Fazio struck struck the the Park venue in Harrision, New York, [* 1] 1 of 5 ., been stopped driver's side of the Kia. More More specifically, specifically, it is c::laimed ylaimed that, that,Riv~ra had been stopped at. a traffic traffic side of driver's ~ Riv~ra had .'.. ::- ... - ~ . ... .. ',' Rivera green, Rivera turned green, light turned the light A venues. -Wh~ri light When the _Harrison Avenues.' Park _and .Han;ison of Par~,and i~tersectio!} of light at the i~tersecti0!1 passed through _Avenue, Harrison on Harrison was traveling proceeded intersection. Fazio,'who traveling on Avenue, passed through Fazio,'wlio proceeded into the intersection. . . . . ~·~. . " -~. ~ . . . .. the vehicle struck her vehicle front of her direction, the subject subject traffic light, which direction, and the front of her struck the' red in her ~a_s red which ~as traffic light, weritover to Fazio driver's side of of Rivera's Rivera's vehicle. vehicle. When When Rivera Rivera exited exited his vehicle vehicle and andweritover Fazio to see if if driver's that she when he inquired, _intoxicated; and whehhe inquired, she stated stated that thatshe was intoxicated; noticed thatshe right, he noticed she was all right, been drinking. drinking. · had been while with driving was arrested arrived at the scene, scene, Fazio Fazio.was arrested and charged charged with driving while police arrived When the police ·-When ,' •• •• • ... ·,,~ ';';' .-. - • cC >{ 20, 2015,'Fazio Was intoxicated On otabout Oct~ber 20,2015;Faziowas Tn1ffic Law§ 1192, Ono'caboutOct?ber Vehicleand TnlfficLawS under Vehicleand intoxicated under found guilty guilty of of driving driving while intoxicated. while intoxicated. found . : .. iii the 'Office complaint a summons action by filing Plaintiffs filing summons and complaint in Office instant action commenced the instant Plaintiffs commenced . . . . I. { '. . -,. -<- - , of the Westchester Westchester County County Clerk Clerk on April April 1, 1,2015, to recover recover damages damages for injuries injuries they they allegedly allegedly 2015, to of two The complaint 201( The sustained as aresult aresult of of the accidentoccurring accident occurring onJuly onluly 19, 19,2014: complaint contains contains two sustained causes of of action. action. The first sounds sounds in negligence,' and the second second, is derivative derivative in nature. nature. in negligence,· causes ' withboilerplace,denials Issue was joined service of answer withboilerplace, denials and and seven seven Fazio's answer of Fazio's joined by service Issue relevant here, the first.affirmative affirmative defenses defenses on or about April 17, 2015. As relevant first ,affirmative defense defense about April affirmative alleges contributory contributory negligence. The fifth affirmative affirmative defen~e alleges alleges assumption assumption ofrisk. of risk. The_ The, negligence. The ·, alleges Rivera's aggravated by, Rivera's caused, or aggravated were caused, injuries were sixth affirmativ~ plaintiffs' injuries that plaintiffs' alleges that defense alleges affirmativ~ defense sixth .";' failure to wear safety restraining device, and the seventh seventh affirmative affirmative defense defense restraining device, other safety belt or other wear a seat belt failure Fazio. omissions.of or omissions. alleges acts or of Fazio. caused by any acts not caused were not injuries were plaintiffs' injuries that plaintiffs' alleges that pursuant conference order order and anq several several preliminary conference pursuant to a preliminary discovery pursued discovery parties pursued The parties . . . _. ', . .. . .. certificate of note ofissue compliance orders, after after which ofi~sue and and certificate of pl~intiffs filed a note which plaintiffs conference orders, compliance conference 2 [* 2] 2 of 5 ./ '/ The gravamen judgment ,,The readiness, then served served the in~tant Ill~tioh IIl~tioh for summary summary judgment. gravamen of of the readiness, and then to liability and to a of li:ibility theissue of judgment on the)ssue motion summary judgment entitled to summary plaintiffs are entitled that plaintiffs motion is that Fazio's negligence because Fazio's dismissal of of the .four related related affirmative affirmative defenses, defenses, because negligence was was the sole sole dismissal ' '. . . '. . .. . ' ... there is no .basis Fazio'sconjecture, proximate cause of of the accident, accident, .and and because, other than conjecture, there ,basis for than Fazio's because, other proximate cause alleging that that Rivera Rivera was not wearing wearing his seatbel_t seatbe1.t. alleging tender . must tender. plai~tiffs must judgment; plai~tiffs summary judgment; As the proponents of the motion motion for summary proponents of judgment in their to direct the court evidentiary proof proof in admissible admissibleform sufficient to w~rrant w~rrantthe court to directjudgmerit their form sufficient evidentiary CPLR3212 [1980]; 562 557, NY2d New York, 49 NY2d of favor as a matter of law law (Zuckerman (Zuckerman v. City of New 557,562 [1980];CPLR3212 matter of favor . ... " -' ~.' ~ .' ' .~. . ! I [b]). pleadings;· thexequisite To this this end, plaintiffs submit, among among other other things? copies. of: the requisite pleadings;' th_ings? copies_ plaintiffs submit, . ,"-- . '. we,aring that he was wearing inclu_ding the fact that Rivera's sworn sworn affidavit facts, including underlying facts, the underlying attesting to the affidavit attesting _Rivera's , . . ~, - F ; aa: '. . . in which R,ivern and Adelfio seatbelt at the time time of of the accident; accident; the deposition deposition transcripts transcripts of of Rivera Adelfio in which they they seatbelt wearing a .seatbelt was wearing that staterrtent that testify swomstatenient he was seatbelt Rivera's sworn including Rivera's facts, including underlying facts, testify to the underlying ~. .' . • .. . ,T• • • of Fazio in which she admits time of of the accident accident (Rivera (Rivera tr trat35); the deposition deposition transcript transcriptofFazioiI1whichshe admits at35); the at the time .~. -~- subject the subject make a/tum to drinking drinking alcohol alcohol prior driving that evening, and to intending intending t6 make a/tum at atthe that evening, prior to driving traffic light light when "[i]n a.flash, a,flash, II was on the side of of the mad, road, that that Ir~alized Irealized II was in an an accident" accident" when "[i]n traffic records, medical records, report, medical police accident (Fazio tr at 20, 22, 27, 29); uncertified 'copies of of the police accidentfeport, uncertified ·copies (Fazio attesting Court attesting fromHarrisonTciwn insurance claim claim documents; of Harrison Town Court disposition from of disposition certificate documents; and aacertificate insurance ,; .. jf brought ag_ainsthim while intoxicated Fazio's conviction conviction on the charge charge o_f of driving driving while intoxicated brought ag,ainsthim stemming stemming to Fazio's ~. incident. from this incident. from prima facie burd.en By this evidence, evidence, plaintiffs have satisfied satisfied their their prima burden of of establishing establishing plaintiffs have By this .. .. come Fazio to come burden to Fazio matter'.;of law; shifting negligen~e (liability) on on the part of Fazio shifting the burden F~zio as a mattei'of part of negligen~e (liability) -3 ". [* 3] ~'.' 3 of 5 . i form adrni~sible form i~ admissible proof in evidentiary proof by evidentiary forward supported by nonneglige~t explanation supported with a n<?nnegligentexpl~maHon forward with of New York, 49 v City o/New fact(Zuckerman of facr(Zuckerman sufficient to require vCity issues of more issues one'or more ~irial on bne'or require atrial sufficient . ~_., - - - .However, by 2013]), However, Dept 2013]). 892,-8_93 [2d Dept NY2d Aghaabdul,109 AD3d 892,8.93 109 AD3d Robayo vvAghaabdul; NY2d at 562; Robayo issue of triable issue raise a triable defaulting on the motion, opportunity to raise of fact her opportunity waived her Fazio.has waived motion, Fazio.has defaulting ' sufficient j_udgment. summary judgment. forestall summary sufficient to forestall judgment as to it appearing ap"pearingto Court that are entitled entitled to to judgment plaintiffs aie that plaintiffs to the Court Accordingly,_it · , Accordingly, . . . . .· . . is it is issue, it that issue, relate to that which relate liability,-and affirmative defenses which of the a[-firrnativedefenses dismissal of liability ,-and to a dismissal - is -:" . Jt is isgrartted ORDERED that granted as,to as'to liability; liability; and and it Sli~1m1ryjlidgment is motion for s~mmaryjudgment that the motion ORDERED '· further further dismissed; .and defenses are dismissed; ORDERED and · affirmative defenses seventh affirm,itive fifth, ·sixth and seventh that the first, fifth,.sixth ORDERED that it is further further Richard J. flon. Richard the counsel ORDERED in the Hon. with counsel appear with directed to appear parties are directed that the parties ORDERED that . . . Plains, White Plains, Jr. - Blvd., White King, Jr.Blvd., Luther Martin LutherKing, DaroncoWestchester Courthouse, 11 111lDr. Dr ..Martin County Courthouse, Daronco Westchester County . . - . ., 2016, Octoberl 1, 2016, Tuesday, October11, on. Tuesd~y: Courtroom 1600, on SettlemeritConfere~ce Part, Courtroom Conference Part, York, at the Settlement New York, . New at 9:15 a.m. Court~ the Court~ This of the order -of and order decision and constitutes the deCision This constitutes Plains,_New York ·_ White Plains"NewYork Dated: White Dated: 2016 September 19, 2016 September ENTER:. ENTER: _j1~Y,Gsu JJ~~~ HON. EVERETT, A.J.S.C. DAVID F. EVERETT,AJ.S.C. HON. DAVIDF. 4 [* 4] 4 of 5 To: Kommer llman LLP Bave & 0 llman Kommer Bave Street - Suite Suite 402 Hugeunot Street 145 Hugeunot New York New Rochelle, New York, New York 10801 New York, New Rochelle, Law Office Office of of Bryan Bryan M. Kulak Kulak , Law Crystal Run Suite 409 Road - Suite Run Road 90 Crystal Middletown, York 10941 New York Middletown, New 5 [* 5] 5 of 5
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