Hotchkiss v Strojny

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Hotchkiss v Strojny 2017 NY Slip Op 33180(U) December 4, 2017 Supreme Court, Broome County Docket Number: 2017-0152 Judge: Jeffrey A. Tait 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: 1] BROOME COUNTY CLERK 12/04/2017 11:14 AM NYSCEF DOC. NO. 38 INDEX NO. EFCA2017000152 RECEIVED NYSCEF: 12/04/2017 At a Term of the Supreme Com1 of the State of New York, held in and for the Sixth Judicial District, at the Broome County Courthouse, in the City of Binghamton, New York on the 4 111 day of August 2017. PRESENT: HONORABLE JEFFREY A. TAIT JUSTICE PRESIDING STATE OF NEW YORK SUPREME COURT: COUNTY OF BROOME WILLIAM HOTCHKISS AND KELLY HOTCHKISS, Plaintiffs, VS. DECISION AND ORDER Index No. 2017-0152 RJI No. 2017-0451-C ALISSA STROJNY AND BRUCE STROJNY, Defendants. APPEARANCES: Joshua M. Weinstock, Esq. Dell & Dean, PLLC Attorneys for Plaintiff 1225 Franklin Avenue, Suite 450 Garden City, NY 11530 Joshua Henry, Esq. Kenney, Shelton, Liptak & Nowak, LLP Attorneys for Defendant 233 Franklin Street Buffalo, NY 14202 1 of 6 [*FILED: 2] BROOME COUNTY CLERK 12/04/2017 11:14 AM NYSCEF DOC. NO. 38 INDEX NO. EFCA2017000152 RECEIVED NYSCEF: 12/04/2017 HON. JEFFREY A. TAIT, J.S.C. This personal injury action is before the Court on the motion of the plaintiffs William and Kelly Hotchkiss for an Order granting them partial summary judgment against the defendants Alissa and Bruce Strojny on the issue of liability and scheduling an assessment o damages pursuant to CPLR § 3212. The defendants oppose the motion, asserting that discovery is not complete and thus the motion is premature. Arguments of the Parties On this motion, the plaintiffs submit their individual affidavits and the affirmation o their attorney, with exhibits. The plaintiffs assert that on May 23 , 2016 the car driven by Mr. Hotchkiss, with Ms. Hotchkiss as the passenger, was stopped at a red traffic light for 5- 10 seconds when it was struck from behind by a car driven by Ms. Strojny and owned by Mr. Strojny. The plaintiffs asse11 they were both injured as a result of the accident. Based on this and applicable case law, they argue they are entitled to partial summary judgment against the defendants on the issue of liability and request that the Court set a date for an assessment o damages pursuant to CPLR § 3212. In opposition, the defendants submit the affirmation of their attorney, who asserts that discovery is not complete and thus the motion is premature and should be denied. He points out that the defendants ' Verified Answer contains an affirmative defense premised on the culpable conduct of the plaintiffs and argues that the defendants are entitled to conduct discovery as to that issue. He states that even if the Court were to grant the plaintiffs ' motion on the issue of negligence, they would not be entitled to an assessment of damages at this point. 2 of 6 [*FILED: 3] BROOME COUNTY CLERK 12/04/2017 11:14 AM NYSCEF DOC. NO. 38 INDEX NO. EFCA2017000152 RECEIVED NYSCEF: 12/04/2017 Law Summary judgment is a drastic remedy which should be granted only when it is clear that there is no material issue of fact for resolution by a jury (see Sillman v. Twentieth CenturyFox Film Co1p., 3 NY2d 395, 404 [1 957]; Redcross v. Aetna Cas. & Sur. Co., 260 AD2d 908, 913 [3d Dept 1999]). It is well established that the functi on of the court on a motion for summary judgment is issue finding, not issue determination, and if a genuine issue of fact is found, summary judgment must be denied (see Sillman, 3 N Y2d at 404 ; see also Salvador v. Uncle Sam 's Auctions & Realty, Inc., 307 AD2d 609, 611 [3d Dept 2003]; Schaiifl.er v. Mengel, Metzger, Barr & Co., LLP, 296 AD2d 742, 743 [3d Dept 2002]; Encotech, Inc. v. Ca ftan Fact, Inc., 280 AD2d 748, 749 [3d Dept 200 l ]). The movi ng pa11y on such a motion bears the initial burden to establish a prima facie case of entitlement to judgment as a matter of law (see Encotech, 280 AD2d at 749). Once this initial burden is met, the opposing party must come forward with proof in admissible form which establishes the existence of a triable issue of fact (see id. at 749-750). "As a general rule, a rear-end col lision with a stopped veh icle creates a prima facie case of negligence against the operato r of the followi ng veh icle. imposing a duty of explanation'· (Pwnpris v. Egnasher. 20 AD3d 746 [3d Dept 2005] [internal quotation marks and citations omi tted] ; Woods v. .Johnson, 44 AD3d 120 I, 1202 [3d Dept 2007]). Upon such a showing by the plaintiff, the defendant operator must ··rebut the inference of neg Iigence by com ing fo rward with evidence of some other reasonable cause .. or the plaintiff will be entitled to judgment on that issue as a matter of law (see Tripp v. GELCO Corp .. 260 AD2d 925. 926 [3d Dept 1999]). Analysis 2 3 of 6 [*FILED: 4] BROOME COUNTY CLERK 12/04/2017 11:14 AM NYSCEF DOC. NO. 38 INDEX NO. EFCA2017000152 RECEIVED NYSCEF: 12/04/2017 Through their affidavits. the plaintiffs have estab lished that Ms. Strojny rear-ended their vehicle while it was stopped at a stop lig ht. This establi shes a prima facie case of negligence. shifting the burden to the defendants to provide a no n-negligent explanation fo r the accident o r otherwise raise an issl1e of fact in that regard. In opposition, the defendants assert that further discovery is needed to determine whether the plaintiffs e ngaged in an y cul pable conduct with respect to the accident, but they do not suggest or set forth what that conduct mig ht be. Further. the defendants d id not submit an affidavit from Ms. Strojny or anyone else wi th personal knowledge of the accident which sets forth their version of events or calls into questi on the plaintiffs · version of events . .. A party o ppos ing summary judgment on the basis that further discovery is necessary ' must demo nstrate how further di scovery might reveal material facts in th e movant' s exclusive knowledge; [and] mere speculati on will be in sufficienf " (Pampris, 20 AD3d at 746-747, citing Scofield v. Trustees of Union Coll.. 267 AD2d 65 1, 652 [Jd Dept 1999]). As in Pampris, the defendants "fail ed to proffer any facts within plainti ffs' exclusive knowl edge whi ch might provide an alternate exp lanation for the accident, [and thus] plaintiffs are entitled to summary judgment on the iss ue of fault for any injury arising from the accident'' (id.) . In light of the foregoing, the plaintiffs' motion for partial summary judgment is granted on the issue of negligence. The issues of proximate cause, serious injury, and damages remain open and w ill be resolved at trial following completion of discovery and the filing of a trial note of issue. This Decision shall also constitute the Order of the Court pursuant to rule 202. 8(g) of 3 4 of 6 [*FILED: 5] BROOME COUNTY CLERK 12/04/2017 11:14 AM NYSCEF DOC. NO. 38 INDEX NO. EFCA2017000152 RECEIVED NYSCEF: 12/04/2017 the Uniform Rules for the New York State Trial Courts and it is deemed entered as of the date below. To commence the statutory time period for appeals as ofright (CPLR 5513[a]), a copy of this Decision and Order, together with notice of entry, must be served upon all parties. Dated: December 4, 2017 Binghamton, New York 4 5 of 6 [*FILED: 6] BROOME COUNTY CLERK 12/04/2017 11:14 AM NYSCEF DOC. NO. 38 INDEX NO. EFCA2017000152 RECEIVED NYSCEF: 12/04/2017 Most or all of the documents upon which this Decision and Order is based were received by Chambers in a scanned electronic format from the Broome County Clerk ' s Office and the originals remain filed with the Broome County Clerk. Therefore, except as noted below, now documents have been forwarded to the Broome County Clerk with this Decision and Order. Documents forwarded to the Broome County Clerk with this Decision and Order: None 6 of 6

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