Moody v Collazos-Ramos

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Moody v Collazos-Ramos 2016 NY Slip Op 33196(U) September 13, 2016 Supreme Court, Westchester County Docket Number: Index No. 68638/15 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 09/16/2016 10:44 AM NYSCEF DOC. NO. 20 INDEX NO. 68638/2015 RECEIVED NYSCEF: 09/16/2016 commence the the 30-day 30-day statutory statutory time time period period for appeals appeals as of of right right under under CPLR CPLR 5513 5513 (a), you you are advised advised to serve serve To commence copy of of 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 -------------------------------~---------------------------------)( WILLIAM MOODY, MOODY, WILLIAM Plaintiff, Plaintiff, Index No. 68638/15 Index No. 68638/15 Motion Sequence Sequence No. Motion No. 001 Decision and Order Order .Decision -against-against\ DANIEL coLLAzos-RMAos COLLAZOS-RAMOS and JORGE JORGE DANIEL COLLAZOS, COLLAZOS, Defendants. Defendants. -----------------------------------------------------------------)( ---------------------------------------------------. -------------X EVERETT, J. EVERETT,J. The The following following papers papers were were read read on the motion: motion: Notice of of Motion/Affirmation Motion/Affirmation in Supp/Exhibits Supp/Exhibits 1-3 Notice Affin Opp Opp Affin Upon the forgoing forgoing papers, papers, the motion motion is granted. granted. Upon Plaintiff William William Moody Moody (Moody) (Moody) moves moves for an order, order, pursuant pursuant to CPLR CPLR 3212, 3212, granting granting Plaintiff summary judgment against defendants defendants Daniel Daniel Collazos-Ramos Collazos-Ramos (Collazos-Ramos) (Collazos-Ramos) and Jorge Jorge summary judgment against Collazos ((1. Collazos) on the the issue issue of of liability. liability. Defendants Defendants oppose oppose the the motion. motion. Collazos J. Collazos) The following following facts are taken taken from from the the motion motion papers, papers, pleadings, pleadings, deposition deposition transcripts, transcripts, The documentary evidence evidence and the the record, record, and and are undisputed undisputed unless unless otherwise otherwise indicated. indicated. documentary Plaintiff commenced commenced this this action action by filing filing a summons summons and complaint complaint in the the Office Office of of the the Plaintiff Westchester County County Clerk Clerk on or about about October October 26, 2015, 2015, to recover recover damages damages for the the serious serious Westchester physical injuries injuries he allegedly allegedly sustained sustained as a result result of of an automobile automobile accident, accident, which which occurred occurred on phy~ical September 13, 13,2013. According to Moody, Moody, the accident accident occurred occurred that that afternoon afternoon at approximately approximately September 2013. According p.m., when, when, while while driving driving a motor motor vehicle vehicle on Tarrytown Tarrytown Road Road in the the Town Town of of Greenburgh, Greenburgh, 3:27 p.m., [* 1] 1 of 4 vehicle owned rear ended.by New York, and stopped stopped in traffic, traffic, his vehicle ended by a vehicle owned by J. Collazos Collazos vehicle was rear New York, negligence. complaint sounds The complaint and operated sounds in negligence. Collazas-Ramos. The operated by Collazas-Ramos. November .16, 2015, Defendants joined issue by service service of of their their jjoint oint answer answer on or about about November 2015, joined issue Defendants preliminary conference terms of after which discovery pursuant of a preliminary conference order, order, pursuant to the terms pursued discovery parties pursued which the parties after judgment. and plaintiff plaintiff served served the instant instant motion motion for summary summary judgment. tender evidentiary must tender Moody must judgment, Moody As the proponent of the motion summary judgment, evidentiary motion for summary proponent of judgment in their proof in admissible admissible form sufficient sufficient to warrant warrant the court courttoto direct direct judgment their favor favor as a proof NY2d 557, 562 [1980]; 49 NY2d of New York, 49 matter of of law (Zuckerman (Zuckerman v City CityofNew [1980]; CPLR CPLR 3212 3212 [b]). To matter admit, and his notice to admit, the notice requisite pleadings, of the requisite make this showing, showing, Moody submits copies pleadings, the copies of Moody submits make underlying the complaint. affidavit attesting attesting to the facts underlying complaint. own affidavit between a vehicles, or between moving vehicles, settled that, between moving collisions between respect to collisions with respect that, with well settled It is well moving vehicle vehicle and a stopped stopped vehicle, vehicle, "[w]hen "[w]hen the d~iver of of an automobile automobile approaches approaches another another moving rate of reasonably safe rate maintain a reasonably automobile from from the rear, he or she is bound of speed speed and bound to maintain automobile control over over his or her vehicle, vehicle, and to exercise exercise reasonable reasonable care to avoid avoid colliding colliding with with the the other other control Furthermore, "vehicle 2012]). Furthermore, vehicle" (Taing v Drewery, 740,741 [2d Dept "vehicle stops Dept 2012]). AD3d 740,741 Drewery, 100 AD3d vehicle" (Taing which are foreseeable foreseeable under under the prevailing prevailing traffic traffic conditions, conditions, even even if if sudden sudden and frequent, frequent, must must which maintain a safe under a duty to maintain be anticipated anticipated by the driver driver who follows, follows, since since he or she is under 09 AD3d Aghaabdul, l109 distance between between his or her car and the car ahead" ahead" (Robayo (Robayo v Aghaabdul, AD3d 892, 893 [2d distance Dept 2013] [internal [internal quotation quotation marks citation omitted]). omitted]). marks and citation Dept vehicle with a stopped collision with settled law stopped or stopping stopping vehicle rear-:-end collision that "[a] rear:-end law that well settled It is also well creates a prima case of of negligence negligence with with respect respect to the operator operator of of the moving moving vehicle vehicle and prima facie case creates non-negligent providing a non-negligent negligence by providing inference of imposes duty on that of negligence rebut the inference operator to rebut that operator imposes a duty 2 [* 2] 2 of 4 2008] [internal Dept 2008] AD3d 706, explanation for the collision" collision" (Chiok (Chiok v Kouridakis, 706, 706 [2d Dept [internal Kouridakis, 57 AD3d explanation provides, at Law§S 1129 provides, Traffic Law and Traffic Vehicle and quotation Finally, Vehicle omitted]). Finally, citations omitted]). marks and citations quotation marks closely more closely vehicle more another vehicle follow another not follow shall not subsection "[t]he driver vehicle shall motor vehicle of a motor driver of that "[t]he subsection (a), that traffic vehicles and the traffic of such than speed of such vehicles regard for the speed having due regard prudent, having reasonable and prudent, than is reasonable highway." the highway." of the upon condition of the condition and the upon and of part of the part negligence on the establishing negligence of establishing burden of Here, prima facie burden satisfied his prima has satisfied Moody has Here, Moody burden to defendants defendant as a matter of law law on the issue issue of of liability, liability, shifting shifting the burden defendants to submit, submit, matter of defendant of failure of the failure collision, or for the in admissible either for the collision, explanation either negligent explanation non negligent form, a non admissible form, conditions traffic conditions prevailing traffic the prevailing under the Collazos-Ramos distance under reasonably safe distance maintain a reasonably Collazos-Ramos to maintain AD3d at 893; Aghaabdul, 109 AD3d him (Robayo between front of of him (Robayo v Aghaabdul, vehicle in front vehicle and the vehicle between his vehicle the reiterate the than reiterate Other than done n.either. Other Taing have done Defendants have AD3d at 741). Defendants Drewery, 100 AD3d Taing v Drewery, doubt as to the there is any doubt where there granted where propositions should not be granted judgment should summary judgment that summary propositions that resolve issue motion court existence of of a triable of fact, and that court should should not resolve issue of of that the motion issue of triable issue existence motion. opposition to the motion. otherwise, in opposition credibility, competent or otherwise, evidence, competent offer no evidence, defendants offer credibility, defendants liability, judgment on liability, entitled to judgment Accordingly, plaintiff is entitled that plaintiff Court that the Court appearing to the Accordingly, it appearing it is and it is liability; and granted as to liability; ORDERED judgment is granted summary judgment motion for summary that the motion ORDERED that further further Richard J. Hon. Richard with counsel ORDERED that directed to appear appear with counsel in the Hon. parties are directed that the parties ORDERED Plains, White Plains, Blvd., White King, Jr. Blvd., Luther King, Daronco Martin Luther Courthouse, 111 Dr. Martin County Courthouse, Westchester County Daronco Westchester 25, 2016, October 25,2016, Tuesday, October New Settlement Conference Courtroom 1600, on Tuesday, Part, Courtroom Conference Part, the Settlement York, at the New York, at 9:15 a.m. [* 3] 3 of 4 This constitutes the decision decision and order order of of the Court. Court. This constitutes Dated: White White Plains, Plains, New York New York Dated: September 13, 13,2016 2016 September ·, ENTER: ENTER: :b~i=I3t~ ~~cr=-- A.J.S.C. HON. EVERETT, A.J.S.C. DAVID F. EVERETT, HON. DAVID To: PLLC Law Office Office of of Michael Joseph, PLLC Michael H. Joseph, Law Road East Post 203 East Post Road York 10601 White New York Plains, New White Plains, Trap Law Offices of John Trop of John Law Offices 73 Market Street - Suite Suite 375 Market Street Yonkers, New York 10710 10710 New York Yonkers, 4 [* 4] 4 of 4

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