Hector v Derima
Annotate this CaseDecided on August 23, 2016
Supreme Court, Kings County
Edbon Hector, Plaintiff,
against
Rutherford Derima, Yekaterina Molkandow and "John Doe", Defendants.
9114/14
Attorney for Plaintiff
Harmon Linder & Rogowsky, Esqs.
3 Park Avenue
Suite 2300
New York, New York 10016
(212) 732-3665
Attorney for Defendant Derima
James G. Bilello & Associates
100 Duffy Avenue, Suite 500
Hicksville, New York 11801
(516) 861-1736
Atorney for Defendants Molkandow
Pillinger Miller Tarallo, LLP
570 Taxter Road, Suite 275
Elmsford, NY 10523
(914) 703-6300
Francois A. Rivera, J.
Recitation in accordance with CPLR 2219 (a) of the papers considered on the Notice of [*2]Motion filed on March 10, 2016 under motion sequence number two, by defendant Rutherford Derima (hereinafter Derima) for an order granting summary judgment dismissing the complaint and all cross claims as asserted against him pursuant to CPLR 3212.
- Notice of motion
- Affirmation in support
- Exhibits A-G
- Affirmation in opposition by Yekaterina Molkandow and John Doe [FN1]
- Exhibits A
- Affirmation in reply
Recitation in accordance with CPLR 2219 (a) of the papers considered on the Notice of Cross Motion filed on May 19, 2016, under motion sequence number three, by Edbon Hector (hereinafter Hector) for an order granting summary judgment in his favor on liability against Yekaterina Molkandow (hereinafter Molkandow) and John Doe pursuant to CPLR 3212.
- Notice of cross motion
- Affirmation in support
- Exhibits A-E
- Affirmation in opposition by Molkandow and John Doe
- Exhibits A
BACKGROUND
On June 17, 2014, Hector commenced the instant action for damages for personal injuries sustained in a motor vehicle accident by filing a summons and verified complaint (hereinafter the commencement papers) with the Kings County Clerk's office. By verified answer with cross claim dated November 13, 2014, Derima joined issue. Molkandow interposed a reply to Derima's cross claims dated February 5, 2015. By verified answer with cross claim dated November 21, 2014, Molkandow and John Doe [FN2] joined issue.
Hector's verified complaint, bill of particulars and deposition testimony allege the following salient facts. On March 17, 2014, at about 11:50 p.m., Hector was a front seat passenger in a Lincoln Town Car (hereinafter the Lincoln) owned and operated by Derima. At that date and time, Derima was driving the Lincoln on Brooklyn Avenue towards its intersection with Newkirk Avenue in Kings County, New York and was struck in the intersection by a 2013 [*3]Hyundai sedan (hereinafter the Hyundai) owned by Molkandow.
At that location, Brooklyn Avenue is a two way roadway with two lanes of traffic in each direction. Brooklyn Avenue has no traffic control devices at its intersection with Newkirk Avenue. At that location, Newkirk Avenue is a one way road with two lanes of traffic. Newkirk Avenue has a stop sign controlling vehicular traffic approaching its intersection with Brooklyn Avenue.
The collision (hereinafter the subject accident) allegedly occurred when the operator of the Hyundai traveling on Newkirk Avenue, proceeded passed its stop sign into the intersection and attempted a left turn onto Brooklyn Avenue directly in front of Derima's Lincoln vehicle while Derima was already in the intersection. After the collision, all the occupants of the Hyundai vehicle exited the vehicle and fled.
MOTION PAPERS
Derima's motion papers consists of an affirmation of his counsel and seven exhibits labeled A through G. Exhibit A is a copy of the commencement papers and the affidavits of service of same. Exhibit B is Derima's verified answer with cross claim and Molkandow's rely to Derima's cross claim. Exhibit C is Molkandow and John Doe's verified answer with cross claim. Exhibit D is Hector's verified bill of particulars. Exhibit E is a copy of the deposition transcript of Derima conducted on May 13, 2015. Exhibit F is a copy of the deposition transcript of Hector conducted on May 6, 2015. Exhibit G is a copy of the deposition transcripts of Moklandow conducted on November 3, 2015.
Moklandow and John Doe opposed Derima's motion with an affirmation of their counsel and one annexed exhibit labeled A. Exhibit A is described as a copy of a lease agreement entered into between Molkandow and non-party Platinum Volkswagen. The lease is illegible.
Hector's cross motion consists of an affirmation of his counsel and five annexed exhibits labeled A through E. Exhibit A is a copy of the deposition transcript of Hector conducted on May 6, 2015. Exhibit B is a copy of the deposition transcript of Derima conducted on May 13, 2015. Exhibit C is a copy of the deposition transcript of Moklandow conducted on November 3, 2015. Exhibit D is a copy of the commencement papers. Exhibit E is a copy of Derima's verified answer with cross claim and Molkandow and John Doe's verified answer with cross claim.
Moklandow and John Doe have opposed Hector's cross motion with the same affirmation of their counsel and annexed exhibit that was used to oppose Derima's motion.
LAW AND APPLICATION
It is well established that summary judgment may be granted only when it is clear that no triable 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 any material facts (Giuffrida v Citibank, 100 NY2d 72 [2003]).
A failure to make that showing requires the denial of that summary judgment motion, regardless of the adequacy of the opposing papers (Ayotte v Gervasio, 81 NY2d 923 [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, 68 NY2d 320 at 324 [1986]).
A party opposing a motion for summary judgment is obligated "to lay bear his proofs" to [*4]sufficiently demonstrate, with admissible evidence, that a triable issue of fact will exist (Friends of Animals, Inc. v Associated for Manufacturers, Inc., 46 NY2d 1065 [1979]). A genuine issue of fact may not be demonstrated by using mere conclusions, expressions of hope or unsubstantiated allegations or assertions (Amatulli v Delhi Constr. Corp., 77 NY2d 525 [1991]).
"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 (People ex rel. Spitzer v Grasso, 50 AD3d 535, 544 [1st Dept 2008]; citing Marine Midland Bank v Dino & Artie's Automatic Transmission Co., 168 AD2d 610 [2nd Dept 1990]). The movant's burden is to establish that there are no triable issues of fact as to each cause of action.
Derima's motion
Derima seeks an order pursuant to CPLR 3212 granting summary judgment in his favor on liability and dismissing the complaint and all cross claims asserted against him.Derima submitted his own and Hector's deposition testimony to establish how the subject accident occurred. That testimony establishes that the subject accident occurred when the operator of Hyundai vehicle traveling on Newkirk Avenue, passed through its stop sign and proceeded into the intersection while the Derima vehicle was already in the intersection. The Hyundai vehicle then attempted to make a left turn into Brooklyn Avenue directly in front of the Derima vehicle and instead struck it. Derima's testimony further establishes that he had only seconds to react to the Hyundai vehicle and was unable to avoid the collision.
The operator of a vehicle on a street governed by a stop sign is required not only to stop, but to yield to vehicles on the intersecting thoroughfare operating with the right-of-way (Yelder v Walters, 64 AD3d 762 [2nd Dept 2009]; see also Vehicle and Traffic Law § 1142 [a]).
A driver who has the right-of-way is entitled to anticipate that other drivers will obey traffic laws that require them to yield (Nohs v Diraimondo, 140 AD3d 1132 [2nd Dept 2013] citing Mu—Jin Chen v. Cardenia, 138 AD3d 1126 [2nd Dept 2016]). "Moreover, a driver is negligent where he has failed to see that which through proper use of his senses he should have seen" (Nohs v Diraimondo, 140 AD3d 1132 [2nd Dept 2013] citing Rodriguez v Klein, 116 AD3d 939, 939 [2nd Dept 2014]).
While a driver who has the right-of-way has a duty to exercise reasonable care to avoid a collision, a driver who has the right-of-way and has only seconds to react to a vehicle which has failed to yield is not comparatively negligent for failing to avoid the collision (Levi v Benyaminova, 128 AD3d 779 [2nd Dept 2015]).
Derima has made a prima facie showing that the negligence of the operator of the Hyundai vehicle proximately caused the subject accident. Derima has also made a prima facie showing that he was free of comparative fault such that the negligence of the operator of Malkandow vehicle was the sole proximate cause of the subject accident. Neither Hector, nor Molkandow, nor John Doe raised a triable issue of fact as to the fault of the operator of the Malkandow vehicle or as to Derima's lack of comparative fault. Accordingly, the complaint and all cross claims as asserted against Derima are dismissed.
Hector's cross motion
Hector seeks an order pursuant to CPLR 3212 granting summary judgment in his favor on [*5]liability as against Molkandow and John Doe. Hector's cross motion papers rely on the same facts, arguments and deposition transcripts utilized in Derima's motion.
Hector has established through Malkandow's deposition testimony, that at the time of the subject accident, Malkandow was the title owner of the 2013 Hyundai involved in the subject accident. For the same reasons applied to Derima's motion, Hector has made a prima facie showing that the negligence of the operator of Malkandow's vehicle was the sole proximate cause of the subject accident.
The Court is cognizant that the identity of John Doe is unknown and that no one has objected to the fact that an answer and opposition to Hector's cross motion have been submitted in John Doe's name. However, in light of the foregoing, the issue need not be addressed by the Court. Molkandow and John Doe have submitted opposition to Hector's cross motion. Their opposition papers rely on Molkandow's deposition testimony, an affirmation of their counsel and one annexed exhibit. Molkandow testified at her deposition that she brought the Hyundai vehicle to a dealership two weeks before the subject accident to do a "swap a lease." She further testified that she had received a Volkswagen prior to the accident and was in the process of relinquishing ownership of the Hyundai to the dealership, when she learned of the subject accident.
Malkandow and John Doe contend that this testimony creates a triable issue of fact regarding their liability for causing the subject accident. For the reasons set forth below, it does not.
Molkandov also testified that when she left the Hyuyndai with the dealer, she did not remove her license plates from the vehicle and she did not notify her insurance carrier that the Hyundai would be part of a lease exchange. Nor did she testify that the dealership was under any restriction in the operation of the Hyundai vehicle after she delivered it to them and while the title was still in her name. Furthermore, Molkandov never reported to the police the alleged unauthorized use of her vehicle.
In sum, Molkandow's testimony was that she did not know who was operating the Hyundai at the time of the subject accident, only that it was not her. Malkandow also did not claim that the employees from the dealership lacked her permission to operate the Hyundai.
Vehicle and Traffic Law § 388 creates a strong presumption that the driver of a vehicle is operating it with the owner's consent, which can only be rebutted by substantial evidence demonstrating that the vehicle was not operated with the owner's express or implied permission (Minuk Han v BJ Laura & Son, Inc., 122 AD3d 591 [2nd Dept 2014] citing Murdza v Zimmerman, 99 NY2d 375, 380 [2003]; Matter of State Farm Ins. Co. v Walker—Pinckney, 118 AD3d 712 [2nd Dept 2014]). "The uncontradicted testimony of a vehicle owner that the vehicle was operated without his or her permission, does not, by itself, overcome the presumption of permissive use" (Minuk Han v BJ Laura & Son, Inc., 122 AD3d 591 [2nd Dept 2014] citing Marino v City of New York, 95 AD3d 840 at 841 [2nd Dept 2012]; see also Ellis v Witsell, 114 AD3d 636 [2nd Dept 2014]).
Molkandow and John Doe's opposition papers did not rebut the strong presumption of Vehicle and Traffic Law § 388 that the driver of the Hyundai vehicle was operating it with Molkandow's consent. Accordingly, they do not raise a triable issue of fact.
[*6]CONCLUSION
Rutherford Derima's motion for an order granting summary judgment dismissing the complaint and all cross claims as asserted against him pursuant to CPLR 3212 is granted.
Edbon Hector's cross motion for an order granting summary judgment in his favor on liability against Yekaterina Molkandow and John Doe pursuant to CPLR 3212 is granted.
The foregoing constitutes the decision and order of this Court.
Enter:
J.S.C. Footnotes
Footnote 1:Molkandow's affirmation was used to oppose Derima' motion and Hector's cross motion.
Footnote 2:The use of a fictitious name such as "John Doe" or "Jane Doe" in the caption of a summons and complaint is authorized when a plaintiff has a cause of action against a defendant whose name is unknown to the plaintiff (CPLR 1024), provided that plaintiff has used due diligence in seeking to ascertain the defendant's name prior to the commencement of the action (see, Harris v. North Shore Univ. Hosp. at Syosset, 16 AD3d 549 [2nd Dept.2005]).
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