McCrackin v Ford

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McCrackin v Ford 2017 NY Slip Op 31101(U) May 16, 2017 Supreme Court, Kings County Docket Number: 508324/2016 Judge: Carl J. Landicino Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [*FILED: KINGS COUNTY CLERK 05/18/2017 04:09 PM 1] NYSCEF DOC. NO. 23 ~ A ¥ ,.,,,,_,. -i: .. INDEX NO. 508324/2016 RECEIVED NYSCEF: 05/18/2017 " At an IAS Term, Part 8 l of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse, at 360 Adams Street, Brooklyn, New York, on the 16'h day of May, 2017. PRESENT: HON. CARL J. LANDICINO, Justice. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X K.P., a minor, by his Mother and Natural Guardian, KISHA MCCRACKIN, and KISHA MCCRACKIN, individually, Plaintiffs, Index No.:508324/2016 DECISION AND ORDER - against Motion Sequence # 1 DOROTHY ANN FORD and ALLEN C. SIMON, Defendants. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X Recitation, as required by CPLR §2219(a), of the papers considered in the review of this motion: Papers Numbered Notice of Motion/Cross Motion and Affidavits (Affirmations) Annexed............................................... ~1=/2~- 0pposing Affidavits (Affirmations)............................................. ~3~- Reply Affidavits (Affirmations)................................................... ~4_ _ Upon the foregoing papers, and after oral argument, the Court finds as follows: This lawsuit arises out of a motor vehicle accident which occurred on January 15, 2016. On that day, the Plaintiffs K.P., a minor, by his Mother and Natural Guardian, Kisham Mccrackin, and Kisha McCrackin individually (hereinafter "the Plaintiffs") allege in their complaint that they suffered personal injuries after the vehicle they were passengers in (owned and operated by non-party Steve 0. Omozusi) was engaged in a collision with a vehicle owned by Defendant Dorothy Ann Ford (hereinafter "Defendant Ford") and operated by Defendant Allen C. Simon (hereinafter the "Defendant Simon"). Specifically, the Plaintiffs allege that the vehicle they were passengers in was stopped for several moments at the intersection of Belmont Avenue and Shepard Avenue, when it was str_uck in the rear b)' the vehicle owned by Defendant Ford and operated by Defendant Simon. 1 of 4 [*FILED: KINGS COUNTY CLERK 05/18/2017 04:09 PM 2] .. NYSCEF DOC. NO. 23 .~ INDEX NO. 508324/2016 RECEIVED NYSCEF: 05/18/2017 ' The Plaintiffs now move for an order pursuant to CPLR § 3212 granting summary judgment on the issue of liability, and proceeding to trial on the issue of damages. The Plaintiffs argue that the Defendants are solely liable for the incident since the Defendants' vehicle allegedly struck their vehicle (as passengers) in the rear while it was stopped. Specifically, the Plaintiffs argue that the Defendant driver violated the Vehicle and Traffic Law (hereinafter "VTL) § 1129 in as much as Defendant Simon failed to maintain a safe distance from the vehicle in which the Plaintiffs were passengers. In opposition, the Defendants argue that the motion should be denied based upon the affidavit of Defendant Simon who alleges that the collision was caused because the car in which the Plaintiffs were passengers stopped suddenly. "Summary judgment is a drastic remedy that deprives a litigant of his or her day in court, and it 'should only be employed when there is no doubt as to the absence of triable issues of material fact."' Kolivas v. Kirchoff, 14 AD3d 493 [2"ct Dept, 2005], citing Andre v. Pomeroy, 35 N.Y.2d 361, 364, 362 N.Y.S.2d 131, 320 N.E.2d 853 [1974]. The proponent for the summary judgment must make a primafacie showing of entitlement to judgment as a matter oflaw, tendering sufficient evidence to demonstrate absence of any material issues of fact. See Sheppard-Mobley v. King, 10 AD3d 70, 74 [2"ct Dept, 2004], citing Alvarez v. Prospect Hospital, 68 N.Y.2d320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986]; Winegradv. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 [1985]. In general, "[a] violation of the Vehicle and Traffic Law constitutes negligence as a matter oflaw." Co/pan v. Allied Cent. Ambulette, Inc., 97 A.D.3d 776, 777, 949 N.Y.S.2d 124, 125 [2"d Dept. 2012]. However, "a plaintiff moving for summary judgment has the ultimate burden of establishing his or her freedom from comparative negligence as a matter of law." Frey v. Richmond Hill Lumber & Supply, 132 A.D.3d 803, 804, 18 N.Y.S.3d 407, 408 [2"ct Dept, 2015]. 2 2 of 4 [*FILED: KINGS COUNTY CLERK 05/18/2017 04:09 PM 3] NYSCEF DOC. NO. 23 .... INDEX NO. 508324/2016 RECEIVED NYSCEF: 05/18/2017 Turning to the merits of the instant motion, the Court finds that sufficient evidence has been presented to establish,primafacie, that Defendants were the sole proximate cause of the accident. In support of the Plaintiffs motion, the Plaintiffs rely on a Police Accident Report, and an affidavit from Plaintiff Kisha McCrackin. Although the Police Accident Report is not admissible and is considered a hearsay statement, 1 the Court finds that the affidavit of Plaintiff Kisha McCrackin, in which she states that the vehicle she was a passenger in was stopped at an intersection before being hit in the rear, is sufficient for the Plaintiffs to meet their prima facie burden. "When the driver of an automobile approaches another automobile from the rear, he or she is bound to maintain a reasonably safe rate of speed and control over his or her vehicle, and to exercise reasonable care to avoid colliding with the other vehicle." Taing v. Drewery, 100 A.D.3d 740, 741, 954 N.Y.S.2d 175, 177 [2"ct Dept, 2012]. In opposition, insufficient proof in admissible form has been submitted to establish a material issue of fact that prevents this Court from granting summary judgment. In opposition to the motion, the Defendants rely on the affidavit of Defendant Alan Simon. In that affidavit, Defendant Simon states that the vehicle in which the Plaintiffs were passengers stopped suddenly and he did not have sufficient time to respond or to avoid that vehicle. However, even accepting Defendant Simon's version as true, the Defendant states that his vehicle was approaching a stop sign at the time of the alleged incident. As such Defendant Simon should have expected the Plaintiffs' vehicle to come to a stop. "While a non-negligent explanation for a rear-end collision may include evidence of a sudden stop of the lead vehicle, 'vehicle stops which are foreseeable under the prevailing traffic conditions, even if sudden and frequent, must be anticipated by the driver who follows, since he or she is under a duty to maintain a safe distance between his or her car and the car ahead"' Tumminello v. City ofNY., 148 A.D.3d 1084, 1085, 49 N.Y.S.3d 739 [2"d Dept, 2017], quoting Bros. v. Bartling, 130 A.D.3d 554, 556, 13 N.Y.S.3d 202 [2"d Dept, 2015]. Accordingly, the Plaintiffs' motion is granted. 1 The statements contained therein are not attributed to anyone. 3 3 of 4 [*FILED: KINGS COUNTY CLERK 05/18/2017 04:09 PM 4] ,. NYSCEF DOC. NO. 23 INDEX NO. 508324/2016 RECEIVED NYSCEF: 05/18/2017 Based on the foregoing, it is hereby ORDERED as follows: The motion for summary judgment by the Plaintiff is granted in that the issue ofliability is determined and the parties shall proceed on the issue of damages. The foregoing constitutes the Decision and Order of the Court. Date: May 16, 2017 ENTER: 4 4 of 4 \

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