Daniels v Masada III Car & Limo Serv. Corp.

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[*1] Daniels v Masada III Car & Limo Serv. Corp. 2016 NY Slip Op 50151(U) Decided on February 10, 2016 Supreme Court, Kings County Rivera, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on February 10, 2016
Supreme Court, Kings County

Raymond G. Daniels, Plaintiff(s),

against

Masada III Car & Limo Service Corp., ALEKSANDR FETTSER and WANDA PHILLIPSON-PRICE, Defendant(s).



3236/13



Attorney for Plaintiff

Rubenstein & Rynecki, Esq

16 Court Street, Suite 1717

Brooklyn, NY 11241

Attorney for Defendant

Wanda Phillipson-Price

875 Merrick Avenue

Westbury, NY 11590

Attorney for Defendants

Masada III Car and Limo and Aleksandr Fettser

Baker McEvoy Morrissey & Moskovits

One Metro tech Center, 8th Floor

Brooklyn, NY 11201
Francois A. Rivera, J.

Recitation in accordance with CPLR 2219 (a) of the papers considered on the motion of the defendant Wanda Phillipson-Price (hereinafter Price), filed on October 30, 2015, under motion sequence number six for an order pursuant to CPLR 3212 granting summary judgment on the issue of liability in her favor and dismissing the complaint and any cross claims asserted against her.

- Notice of Motion- Affirmation in Support- Exhibits A - H- Affirmation in Opposition

- Exhibits A - B



- Reply Affirmation Supplemental Affirmation

BACKGROUND

On February 21, 2013, plaintiff, Raymond G. Daniels (hereinafter Daniels or plaintiff) commenced the instant action for damages for personal injuries sustained in a motor vehicle accident by filing a summons and complaint with the Kings County Clerk's office. By answer with cross claim dated April 2, 2013, Price joined issue. By joint answer with cross claim dated April 10, 2013, Masada III Car & Limo Service Corp (hereinafter Masada) and Aleksandr Fettser (hereinafter Fettser) joined issue. On April 15, 2015, plaintiff filed a note of issue. By order dated October 2, 2015, the parties time to move for summary judgment was extended to November 6, 2015.

Defendants Masada and Fettser were sanctioned by an order dated March 4, 2015 which precluded them from offering their testimony in opposition to the instant motion and at trial due to their failure to appear for examinations before trial.

The complaint, bill of particulars and deposition testimony of plaintiff and Price establishes that on October 1, 2012, at approximately 7:00 a.m., plaintiff was a passenger in a car operated by Fettser, owned by Masada and traveling in the left most lane of Ditmars Boulevard approaching its intersection with Astoria Boulevard in Queens, New York. At the time and location Ditmars Boulevard contained three lanes of traffic in both directions.



At that date and time Price was operating her motor vehicle in the center lane of Ditmars Boulevard traveling in the same direction as Fettser. She remained in the center lane until the collision. Immediately prior to the accident Price saw Fettser's vehicle leave his lane and attempt to make a right turn in front of her vehicle.

LAW AND APPLICATION

It is well established that summary judgment may be granted only when it is clear that no triable [*2]issue of fact exists (Alvarez v Prospect Hospital, 68 NY2d 320 [1986]). The burden is upon the moving party to make a prima facie showing that he or she is entitled to summary judgment as a matter of law by presenting evidence in admissible form demonstrating the absence of material facts (Guiffirda v Citibank, 100 NY2d 72 [2003]).

A failure to make that showing requires the denial of the summary judgment motion, regardless of the adequacy of the opposing papers (Ayotte v Gervasio, 81 NY2d 1062 [1993]). If a prima facie showing has been made, the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of material issues of fact (Alvarez v Prospect Hospital, supra, 68 NY2d at 324).

"Pursuant to CPLR 3212 (b) a court will grant a motion for summary judgment upon a determination that the movant's papers justify holding, as a matter of law, "that there is no defense to the cause of action or that the cause of action or defense has no merit." Further, all of the evidence must be viewed in the light most favorable to the opponent of the motion (Marine Midland Bank v Dino & Artie's Automatic Transmission Co., 168 AD2d 610 [1990])" (People ex rel. Spitzer v Grasso, 50 AD3d 535, 544 [1st Dept 2008]).

New York Vehicle and Traffic Law § 1128 (a) & (d)provide:

§ 1128. Driving on roadways laned for traffic

Whenever any roadway has been divided into two or more clearly marked lanes for traffic the following rules in addition to all others consistent herewith shall apply:

(a) A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.

(d) When official markings are in place indicating those portions of any roadway where crossing such markings would be especially hazardous, no driver of a vehicle proceeding along such highway shall at any time drive across such markings.

Price established her entitlement to judgment as a matter of law by submitting evidence showing that Fettser violated Vehicle and Traffic Law § 1128 by leaving his lane of traffic when it was unsafe to do so (Velez v Mandato, 8 AD3d 451 129 AD3d 945[2nd Dept 2004]). Price testified that the first time she saw Fettser's vehicle was to her left and behind her. The next time she saw the vehicle was a split second before the accident when Fettser attempted to cut in front of her vehicle to make a right turn from the left lane. Price had no time to avoid the collision.



Price has demonstrated her entitlement to judgment as a matter of law by establishing that the defendant's vehicle violated Vehicle and Traffic Law § 1128. Furthermore, Price has established that she is free from comparative fault. Plaintiff's deposition testimony is consistent with Price's testimony as to the occurrence of the accident.

As Price has met her burden on liability the burden is shifted to the opposing party to raise a triable issue of fact (Alvarez v Prospect Hospital, 68 NY2d 320—324 [1986]). Plaintiff did not oppose the motion. Masada and Fettser have opposed the motion and have used plaintiff's testimony to do so. Plaintiff's testimony, however, is consistent with Price's as to the happening and does not raise a triable issue of fact.



CONCLUSION

Price's motion for summary judgment is granted.

The foregoing constitutes the decision and order of this Court.



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