Katris v Cal

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Katris v Cal 2016 NY Slip Op 33179(U) September 23, 2016 Supreme Court, Suffolk County Docket Number: Index No. 605708/2015 Judge: Joseph A. Santorelli 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. INDEX NO. 605708/2015 FILED: SUFFOLK COUNTY CLERK 09/30/2016 11:58 AM NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 09/30/2016 INDEXNo. CJ\L No. .. llUF I H JF,\1 ORI JI F 605708/2015 SUPREME COURT - ST/\ TE OF NEW YORK I.AS. PART 10 - SUFFOLK COUNTY PRESENT: MOTION DATE 7-15-16 SUBMITDJ\TE 9-15-16 Mot. Seq.# 01 - MG Hon. ---"-JC=)-"'S-'-'E'-'-P~l-.,_I,,_,c\'-'--.=S.,_J\,_,_N_;_l,:_·o=R=E=I=,J=J_ _ Justice of the Supreme Court ----------------------------------------------------------------X SALENCER, SACK, KIMMEL & BAVARO, LLP Attorney fc1r !'laintiff, 180 FROEIILICH f ARM BLVD WOODBURY. NY 11797 GEORGE KATRIS and JACLYN KATRIS. Plaintiffs. - against - RUSSO & TAMBASCO Attornei'jor Defendant 115 BROAD HOLLOW RD, STE 300 MELVILLE,NY 11747 ZHAO CAL Defendant. ----------------------------------------------------------------X Upon the following papers numbered I to _Ll__ read on this motion for summary judgment; Order to Show Cause and suppo11ing papers~: Notice ofE:'10.~~ Motion 1111d .rnppo1ti11g papc,~ _: Answering Affidavits and supporting papers_U___:: 13: Repl:-ing Aftlda\'its and suppo11ing papers 14 - 15: Other_: (1111d 11fte1 l1e111 i11g cotm~d i11 .mppmt 1111d oppMed to the motion) it io. Plaintiff.., move for an order granting summary judgment on the issue of liability. Defendant opposes the motion. The plaintiffa commenced this action to recover damages for personal injuries sustained as a result of a rear-end collision that occurred on March 20, 2015. Plaintiff. George Katris. alleges that he was operating a 2015 Subaru Forester, owner by plaintiff Jaclyn Katris. lie states that he was traveling westbound on the Long Island Expressway near exit 42 at approximately forty ( 40) miles per hour when defendant, Zhao Cai. struck the plaintiffs vehicle in the rear. In opposition the defendant argues that the plaintiff has failed to eliminate an issue of fact as to whether the plaintiff failed to act reasonably under the circumstances. The proponent of a summary judgment motion must make a prima facic showing of entitlement to judgment as a matter of !av,, tendering sufficient evidence to eliminate any material issues of fact from the case (Friends of Animal\ v Associated Fur Mfrs., 46 NY2d I 065, 416 NYS2d 790 [ 1979]). To grant summary judgment it must clearly appear that no material and triable issue of fact is presented (Sillman v Twentieth Century-Fox Film Corporation, 3 NY2d 395. 165 NYS2d 498 [ 1957]). Once such proof has hecn offered. the burden then shifts to the opposing party, who, in order to defeat the motion for summary judgment. must proffer evidence in admissible form ... and must ""show facts sufficient to require a trial of any issue of fact'' CPLR3212 [bj: Gilbert Frank Corp. v Federal Insurance Co., 70 NY2d 966. 525 NYS2d 793. 520 NF2d 512 [ 1988). Zuckerman v Ci~r ofNew York. [* 1] 1 of 4 Katris \ Cai Index No. 605708120 l 5 Page l\'o. 2 49 NY2d 557. 427 NYS2d 595 I l 9801). The opposing party must assemble. lay bare and reveal his proof in order to establish that the matters set forth in his pleadings are real and capable of being established ( Castro v Liber(p Bus Co., 79 AD2d 1014, 435 NYS2d 340 [2d Dept 1981 ]). Furthermor e. the evidence submitted in connection with a motion for summary judgment should be viewed in the light most favorable to the party opposing the motion (Robinson v Strong Memorial /lospital, 98 AD2d 976, --l70 l\'YS2d 239 14th Dept 1983 /). On a motion for summary judgment the court is not to determine credibility. but whether there exists a factual issue (Sl"l' S.J. Cape/in Associates v Globe Mfg. Corp., 34 NY2d 338. 357 NYS2d 478. 313 NE2d 776 [ 1974 ]). HO\vever. the court must also determine whether the factual issues presented are genuine or unsubstanti ated (Prunty v Ke/tie's Bum Steer, 163 AD2d 595. 559 NYS2d 354 [2d Dept 1990 j). If the issue claimed to exist is not genuine but is feigned and there is nothing to be tried, then summary judgment should be granted (Prunty v Ke/tie's Bum Steer, supra, citing Glick & Do/leek v Tri-Pac E,xport Corp., 22 NY2d 439, 293 NYS2d 93. 239 NE2d 725 [ 1968]; Columbus Trust Co. v Campolo, 110 AD2d 616. 487 NYS2d 105 [2d Dept 1985/. a/fd, 66 NY2d 70 l. 496 NYS2d 425. 487 NE2d 282). In support of motion. plaintiff has submitted. inter alia. an attorncy·s affirmation ; copies of the summons and \erificd complaint; copies of the verified answer by defendant: copies of the verified bill of particulars: copies of the preliminary conference stipulation and order; copies of the transcript from the examinatio n before trial of Zhao Cai: and copies of the transcript from the examinatio n before trial of George Katris. ,1\t his examinatio n before trial the plaintiff George Katris testifii~d that on March 20, 2015 he was struck from behind while driving on the Long Island Expressway . He further testified that his vehicle was struck by the defendants vehicle and that he was wearing his scat belt at the time of the accident. In opposition. the defendant has submitted, inter alia, an attorney's affirmation . The defendant contends that "the plaintiff has failed to eliminate an issue of fact as to whether the plaintiff failed to act reasonably under the circumstan ces·· and failed to see that which should have been seen. In Leal v Wolff 224 AD2dl 392, 393 [2nd Dept 1996]. the Court held A rear-end collision with a stopped automobile establishes a prima facie case of negligence on the part of the operator of the moving vehicle and imposes a duty on the operator of the moving vehicle to explain how the accident occurred (see. Gambino v City ofNew York. 205 AD2d 583: Starace v Inner Circle Qonexions . 198 AD2d 493: Edney v Metropolita n Suburban Bus Auth., 178 AD2d 398: Benyarko v Avis Rent A Car 5'.)'s .. 162 AD2d 572, 573 ). The operator of the moving vehicle is required lo rebut the inference of negligence created by an unexplaine d rear-end [* 2] 2 of 4 Katris \ Cai Index No. 605708 12015 Page No. 3 collision (sec, Pft{[fenbacl, v White Plains Express Corp .. 17 NY2d 132. 135) because he or she is in the best position to explain whether the collision was due to a mechanical failure, a sudden stop of the vehicle ahead, an unavoidable skidding on a wet pavement, or some other reasonable cause (sec. Carter v Castle Elec. Contr. Co., 26 AD2d 83. 85). If the operator of the moving vehicle cannot come forward v-:ith any evidence to rebut the inference of negligence. the plaintiff may properly be awarded judgment as a matter of law (see, Starace v Inner Circle Qonexions. supra. at 493; Young v City of New York. 113 AD2d 833. 834). Dri\crs must maintain safe distances between their cars and cars in front of them (Vehicle and Traffic Law § 1129 [a]) and this rule imposes on them a duty to be aware of traffic conditions, including vehicle stoppages. to see what should be seen and to exercise reasonable care under the circumstances to st avoid an accident (see Johnson v Phillips, 261 AD2d 269, 271, 690 NYS2d 545 [ I Dept 19991). The defendant is under a duty to maintain a safe distance betv.:een his car and plaintiffs" car and his failure to do so. in the absence of a nonnegligcnt explanation. constitutes negligence as a matter oflaw (Leal v Wolff .rnpm at 393-394: sec also, Vehicle and Traffic Lmv § l J2C) Ia J; Silberman v Surrey Cadillac Limousine Serv .. 109 AD2d 833) CPLR §3212(b) states that a motion for summary judgment "shcill be supported by affidmit. by a copy ot'the pleadings and by other available prooC such as depositions and written admission." If an attorney lacks personal knowledge of the e\-cnts giving rise to the cause of action or defense. his ancillary affalmit. repeating the allegations or the pleadings, without sc'iting forth evidentiary facts. cannot support or defeat a motion by summary judgment (Olan v. Farrell Lines, Inc., 105 AD 2d 653. 481 NYS 2d :no (1s t Dept., 1984; atrd 64 NY 2d I 092, 489 NYS 2d 884 (1985); Spearman v. Times Square Stores Corp., 96 AD 2d 552. 465 NYS 2d 230 (2 nd Dept.. 1983 ); Weinstein-Korn-Miller. New York Civil Practice Sec. 3212.09) ). At his examination before trial. the defendant testified that "there is a exit. like entering exiting exit. right next to my firm. so I just got on the LIE there ... and that's, um, pretty much about it before I just ran into the other car." I le also testified that the first time he saw the plaintiffs \'ehicle '·should be seconds ago. before I just ran - rear enter - yeah, rear-ended that vehicle" and states he was dri\'ing between 60 to 65 miles per hour right before the accident. He also stated that he applied the brake "after the hit ... and then I hit the brake'·. When the defendant was questioned about \Vhat he told the police at the scene. he stated .. , rear-ended into another vehicle ... nothing more than that because it is simple." I Inc. the plaintiff established a prima facie entitlement to judgment as a matter of !av-;. The defendant \\as then required to proffer evidence in admissible form to show facts sufficient to require a trial of any issue of fact. In opposition to the motion. defendant failed to rebut the prima facie showing and did not submit an affidavit in opposition from the defendant. Zhao Cai. or a witness with personal krnm ledge of thee\ cnts gi\ ing rise to the cause of action or defense. [* 3] 3 of 4 Katris \' Cai Index No. 605708/2015 Page No. 4 This motion by the plaintiffs for an order awarding summary judgment in their fa\'or on the issue of liability is granted; and it is further ORDERED that the attorneys for the parties shall proceed to discovery on the issue of damages: and it is further ORDERED that counsel for plaintiffc; shall serve a copy of this order upon opposing counsel and upon the Calendar Clerk of this court within twenty (20) days from the date of this order; and it is further ORDERED that upon the completion of disco\'ery and the filing of a Note of Issue. this action shall proceed to trial on the issue of damages. I he foregoing constitutes the decision and Order of the ~---::;;.i-t"'---- Dated: September 23.2016 I ION. JOSl~P A. SANTORELLI .S.C. FINAL DISPOSITION [* 4] X 4 of 4 NON-FINAL DISPOSITION

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