Gold-Cumberbatch v Gilani

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Gold-Cumberbatch v Gilani 2017 NY Slip Op 33397(U) June 19, 2017 Supreme Court, Westchester County Docket Number: Index No. 68943/2016 Judge: Lawrence H. Ecker 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. INDEX NO. 68943/2016 FILED: WESTCHESTER COUNTY CLERK 06/20/2017 10:06 AM NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 06/19/2017 To commence commence the the statutory statutory time time for for appeals appeals as of of right right (CPLR 5513[a]), 5513[a]), you are advised advised to serve serve a copy copy of of this this order, order, with with notice notice of of entry, entry, upon upon all parties. parties. SUPREME COURT YORK SUPREME COURT OF THE THE STATE STATE OF NEW NEW YORK COUNTY WESTCHESTER COUNTY OF WESTCHESTER -----------------------------------------------------------------------X -----------------------------------------------------------------------X MORGAN MORGAN GOLD-CUMBERBATCH, GOLD-CUMBERBATCH, INDEX INDEX NO. 68943/2016 68943/2016 Plaintiff, Plaintiff, DECISION/ORDER DECISION/ORDER -against-againstSANA SANA GILANI, GILANI, SAEEDA SAEEDA ASAD ASAD GILANI, GILANI, HUNTER HUNTER STUART KLEIN, KLEIN, KLEIN and STUART Motion date: date: 5/24/17 Motion 5/24/17 Motion Seq. 1 Motion Seq. Defendants. Defendants. -----------------------------------------------------------------------X ---------~--~----------------------------------------------------------X ECKER, ECKER, J. The following papers papers numbered through 14 were motion of Morgan Morgan The following numbered 1 through were read on the motion Gold-Cumberbatch ("plaintiff') partial summary liability, made made pursuant pursuant Gold-Cumberbatch ("plaintiff") for partial summary judgment judgment as to liability, CPLR 3212, 3212, as against against defendants defendants Sana Gilani and Saeeda Gilani, Hunter Hunter Klein to CPLR Sana Gilani Saeeda Asad Asad Gilani, Stuart Klein. ("defendants"): ("defendants"): and Stuart PAPERS PAPERS NUMBERED NUMBERED Notice of Motion, Motion, Affirmation, Affirmation, Exhibits Exhibits A-G 11 Notice Gilani Affirmation Affirmation in Opposition Opposition Gilani Klein Affirmation Affirmation and Affidavit Opposition Affidavit in Opposition Reply Affirmation, Affirmation, Exhibit Exhibit H Reply 1-9 10 11-12 11-12 13-14 13-14 papers, the court court determines determines as follows: Upon the foregoing foregoing papers, follows: this action action for for personal plaintiff alleges alleges she was involved in two separate In this personal injury, plaintiff was involved two separate unrelated motor motor vehicle vehicle accidents accidents occurring occurring approximately approximately a year year apart apart in diffe"rent diffe'rent and unrelated counties, as described described in greater greater detail, detail, infra. The The original original summons summons and complaint complaint were were counties, before the second second accident accident [E-file [E-file Doc. 1 1]Jfollowed followed by byan amended complaint complaint an amended filed a week week before week after after the second second accident accident [E-:file [E-Jile Doc. 3). 3]. Based Based upon upon this this factual/legal factuaillegal filed a week .' 11 Court rules require require plaintiff plaintiff to use numbered numbered exhibit exhibit tabs. tabs. Court -1- [* 1] 1 of 5 FILED: WESTCHESTER COUNTY CLERK 06/20/2017 10:06 AM NYSCEF DOC. NO. 37 INDEX NO. 68943/2016 RECEIVED NYSCEF: 06/19/2017 scenario, there there is an apparent apparent misjoinder misjoinder of of parties parties under under CPLR CPLR § S 1003 1003 as the the claims claims do scenario, arise out out of of the the same same transaction transaction or occurrence occurrence and involve involve completely completely independent independent not arise unrelated defendants. defendants. Although Although the the court court is within within its right to sever sever the the action action sua and unrelated sponte [CPLR [CPLR § S 1003], 1003], it will decide decide this motion motion as one, and leave leave resolution resolution of of the the joinder joinder sponte issue for for a later later date. date. issue First cause cause of action action (Gilani) (Gilani) First Plaintiff, in her affirmation, affirmation, alleges alleges as follows: follows: on December December 30, 30,2015 4:20 p.m., Plaintiff, 2015 at 4:20 was operating operating her vehicle vehicle southbound, southbound, on the Bronx Bronx River River Parkway Parkway in Eastchester Eastchester in she was Westchester County County when when she she brought brought her her vehicle vehicle to a stop stop in the the left left turn turn lane lane behind behind Westchester traffic at a red light. Plaintiff Plaintiff was was stopped stopped for for at least least ten seconds. seconds. As soon soon as the the light light traffic turned green, green, another another vehicle, vehicle, "suddenly "suddenly and without without signaling signaling or warning" warning" moved moved into turned plaintiff's lane lane and struck struck the the front front passenger's passenger's side side of of her her vehicle. vehicle. Both the the vehicle vehicle in front front plaintiff's of plaintiff plaintiff and plaintiff's plaintiff's vehicle vehicle were were still stopped· stopped" at the the time time of of the the collision. collision. Plaintiff's Plaintiff's of vehicle was was pushed pushed into the guardrail guardrail on her her left left as a result result of of the impact impact of of the defendant's defendant's vehicle vehicle. Later Later the plaintiff plaintiff learned learned that that this car car was was driven driven by defendant defendant Sana Sana Gilani Gilani and vehicle. owned by defendant defendant Saeeda Saeed a Asad Asad Gilani. Gilani. According According to the certified certified police police accident accident report report owned [Pltf Ex. G],defendant G],defendant told the police police officer officer who who responded responded to the the scene scene that that she was [Pltf changing lanes lanes when when she sideswiped sideswiped the plaintiffs plaintiff's vehicle. vehicle. These These facts facts are uncontroverted uncontroverted changing there is no affidavit affidavit from from the defendant defendant driver driver or other other contradictory contradictory proof proof submitted submitted in as there opposition to the motion. motion. opposition Plaintiff submits submits there there are no issues issues of fact fact and that that she she is entitled entitled to summary summary Plaintiff judgment liability. In opposition, opposition, defendants defendants assert: assert: 1) the the motion motion is premature premature as judgment as to liability. there is a need for for disclosure disclosure prior prior to determination determination of of a motion motion for for summary summary judgment; judgment; there plaintiff's affidavit affidavit leaves leaves open open questions questions of of fact fact as to traffic traffic conditions, conditions, positions positions of of 2) plaintiff's vehicles and other other related related conditions conditions at the the time time of of the the accident accident as to whether whether plaintiffs plaintiff's vehicles actions · actions may may have have contributed contributed to the accident. accident. Upon review, the the court court finds finds defendants defendants have have failed failed to show show that that additional additional Upon discovery might might lead to relevant relevant evidence, evidence, or that that facts facts essential essential to justify opposition to the discovery justify opposition motion were exclusively within knowledge and control control of of plaintiff. plaintiff. CPLR CPLR 3212 3212 (f); motion were exclusively within the knowledge Pabarroo Pabarroo v TS 405 405 Lexington Lexington Owner, Owner, LLC, 141 AD3d AD 3d 634 634 [2d Dept Dept 2016]; 2016]; Orellana Orellana v Maggies Para Para transit transit Corp., 138 AD3d AD3d 941 [2d Dept Dept 2016]; 2016]; Williams Williams v Spencer-Hall, Spencer-Hall, 113 Maggies AD3d 759 [2d Dept Dept 2014]. 2014]. AD3d Defendants failed failed to submit submit an affidavit affidavit from from the the defendant defendant driver driver describing describing her her Defendants version of of the events events surrounding surrounding the the accident accident so as to rebut rebut plaintiffs plaintiff's version. version. The The own version mere hope hope or speculation speculation that that evidence evidence sufficient sufficient to defeat defeat a motion motion for for summary summary judgment mere judgment may be uncovered uncovered during during the the discovery discovery process process is insufficient insufficient to deny deny the the motion. motion. may Moreover, the the affirmation affirmation of of defendants' defendants' attorney attorney was was insufficient insufficient to raise raise a triable triable issue issue Moreover, of fact fact as to whether whether defendants defendants had a nonnegligent non negligent explanation explanation for for the the collision collision or of -2-2- [* 2] 2 of 5 FILED: WESTCHESTER COUNTY CLERK 06/20/2017 10:06 AM NYSCEF DOC. NO. 37 INDEX NO. 68943/2016 RECEIVED NYSCEF: 06/19/2017 whether plaintiff plaintiff was was comparatively comparatively negligent negligent in the the happening happening of of the the accident. accident. Pierre Pierre v whether Demoura, 148 AD3d AD 3d 736 736 [2d Dept Dept 2017]. 2017]. Demoura, Defendant further further contends contends the certified certified police police report report is not admissible admissible without without Defendant support of of testimony, testimony, and that that the the information information in the the accident accident report report is only only admissible admissible as support the report report is made made based based upon upon the the officer's officer's personal personal observations. observations. Here, long as the defendant herself herself made made a statement statement shortly shortly after after the accident accident to the the police police officer officer who, in defendant course of of duty, responded responded to the the accident. accident. The The police police officer officer who who prepared prepared the the report report the course acting within within the scope scope of of his duties duties in recording recording the the defendant defendant driver's driver's statement statement and was acting statement is admissible admissible as an admission admission of of a party. The The report report was was made made based based upon upon the statement officer's personal personal observations observations and while while carrying carrying out out police police duties. duties. The The admission admission the officer's made by defendant defendant contained contained in the the certified certified police police report report falls falls within within the the exceptions exceptions to the made hearsay rule. See CPLR CPLR 4518(a); 4518(a); Shehab Shehab v Powers, Powers, 150 150AD3d 918 [2d Dept Dept 2017]; 2017]; _rule. See AD3d 918 hearsay Memenza v Cole, 131 AD3d AD 3d 1020, 1020,1021Dept 2015]; 2015]; Jackson Jackson v Donien Donien Trust, Memenza 1021- 1022 [2d Dept AD3d 851 [2d Dept Dept 2013]. 2013]. 103 AD3d Accordingly, plaintiff plaintiff is entitled entitled to partial partial summary summary judgment liability on the first first Accordingly, judgment as to liability cause of of action action as against against defendants defendants Sana Sana Gilani Gilani and Saeeda Saeed a Asad Asad Gilani. Gilani. cause Second cause cause of of action action (Klein) (Klein) Second Plaintiff, in her affidavit, affidavit, alleges alleges that that on December December 20, 20,2016, was operating operating her 2016, she was Plaintiff, vehicle northbound northbound on the the Hutchinson Hutchinson River River Parkway Parkway in Bronx, Bronx, New New York. York. There There was was vehicle heavy traffic traffic at the time time and she slowed slowed down down and brought brought her her vehicle vehicle to a stop stop near near Exit heavy The vehicle vehicle directly directly in front front of of her was was stopped, stopped, as were were several several other other vehicles vehicles in front front 3W. The of it. Plaintiff Plaintiff was was stopped stopped for for at least least 10 seconds seconds when when she she was was rear-ended rear-ended by another another of vehicle which which she she later later learned learned was was driven driven by Hunter Hunter Klein and owned owned by Stuart Stuart Klein. vehicle Plaintiff submits submits there there are no issues issues of of fact fact and that that she she is entitled entitled to summary summary Plaintiff judgment pursuanttoto CPLR CPLR 3212. 3212. In opposition, opposition, defendant defendant asserts asserts there there are issues issues of offact, fact, judgment pursuant confirmed by his affidavit affidavit which which conflicts conflicts with plaintiff's plaintiff's affidavit. affidavit. Defendant Defendant describes describes as confirmed that as cars were were proceeding proceeding between between three three and five five miles miles per per hour hour in heavy heavy stop stop and go that traffic, plaintiff's plaintiff's car car suddenly suddenly stropped stropped and his front front bumper bumper "tapped" "tapped" her her rear rear bumper. bumper. He traffic, states plaintiff plaintiff "jump[ed] "jump[ed] out" of of her vehicle vehicle and "jogg[ed] "jogg[ed] over over to mine mine [vehicle]." [vehicle]." He states continues that that "she "she then then hurriedly hurriedly proposed proposed that that we exchange exchange insurance insurance information, information, not continues the police police and continue continue in our our respective respective routes routes in order ordertoto avoid avoid traffic traffic delays. delays. As I had call the never been been in a motor motor vehicle vehicle accident accident before before and there there was was no perceivable perceivable damage, damage, I never followed suit. No damage damage was was visible visible to either either vehicle. vehicle. The The police police were were not not called. called. Ms. followed Gold-Cumberbatch's car car was was not not stopped stopped for for 10 seconds seconds prior prior to the the incident. incident. We We left the the Gold-Cumberbatch's area after after quickly quickly exchanging exchanging insurance insurance information." information." [Klein [Klein Aff. 1J ~ 3-8] area these conflicting conflicting factual factual recitations, recitations, the the court court finds finds that that the the granting granting of of summary summary On these judgment liability at this time time is not appropriate. appropriate. The The parties' parties' conflicting conflicting affidavits affidavits judgment as to liability issues of of fact fact as to whether whether the defendant defendant driver driver has a nonnegligent non negligent expla11ation explanation to raise issues justify conduct under under the the circumstances, circumstances, and whether whether the the impact impactwas unavoidable. That That justify his conduct was unavoidable. -3-3- [* 3] 3 of 5 FILED: WESTCHESTER COUNTY CLERK 06/20/2017 10:06 AM NYSCEF DOC. NO. 37 INDEX NO. 68943/2016 RECEIVED NYSCEF: 06/19/2017 question for for the trier trier of fact. Winegrad Winegrad v New New York City City Medical Medical Center, Center, 64 NY2d 851 is a question [1985]. As there there has been no discovery discovery as yet, the court court finds finds it is premature premature to grant grant the [1985]. motion, given given the factual factual discrepancies. discrepancies. Cole v JW's JW's Pub, 133 AD3d AD3d 815 [2d Dept Dept 2015] 2015] motion, (question of fact fact as to whether whether assault assault was was unforeseeable unforeseeable and unexpected); unexpected); Betz Betz v N. Y. Y.C. (question C. Premier Properties, Properties, 38 AD3d AD 3d 815 [2d Dept Dept 2007] (plaintiff raised raised issues issues warranting warranting further Premier 2007] (plaintiff further discovery; summary summary judgment denied to defendants defendants as premature). premature). discovery; judgment denied "Summary judgment drastic remedy remedy that that should should not be granted granted where where there there is "Summary judgment is a drastic doubt as to the existence existence of a triable triable issue." issue." Alvarez v. Prospect Prospect Hospital, Hospital, 68 NY2d 329 any doubt Alvarez v. [1986]; Andre v. Pomeroy, Pomeroy, 35 NY2d 361 [197 [1974]. The function function of the court court on a motion motion for for [1986]; Andre v. 4]. The summary judgment resolve issues issues of fact fact or determine determine matters matters of credibility, credibility, but summary judgment is not to resolve merely to determine determine whether whether such issues exist. Stukas Stukas v. v. Streiter, Streiter, 83 AD3d AD 3d 18, 23 [2d Dept Dept merely such issues 2011]. Accordingly, Accordingly, it is hereby hereby 2011]. ORDERED that that the plaintiff's plaintiff's motion motion for for partial partial summary summary judgment liability on ORDERED judgment as to liability the first first cause cause of of action action pursuant pursuant to CPLR CPLR 3212, Gilani and 3212, as against against defendants defendants Sana Sana Gilani Saeeda Gilani is granted; granted; and it is further further Saeeda Asa Asa Gilani ORDERED that that the motion motion for for partial partial summary summary judgment liability on the the ORDERED judgment as to liability second cause cause of action action made made pursuant pursuanttoto CPLR CPLR 3212, against Hunter Hunter Klein and Stuart Stuart 3212, as against second denied; and it is further Klein is denied; further ORDERED that that the parties parties shall Preliminary Conference Conference Part of the ORDERED shall appear appear at the Preliminary Court, Room Room 811 on July July 17, 2017 2017 at 9:30 a.m. Court, The foregoing foregoing constitutes constitutes the Decision/Order Decision/Order of the court. court. The 2 2 White Plains, Plains, New New York Dated: White York June / (,,2017 June 2017 I( LAWRENCE H. ECKER, ECKER, J.S.C. J.S.C. H N. LAWRENCE court acknowledges, acknowledges, with appreciation, appreciation, the contribution contribution of Maryclaire Maryclaire Kennedy, Kennedy, The court student intern, in the preparation preparation of this Decision/Order. Decision/Order. law student 2 2 -4-4- [* 4] 4 of 5 FILED: WESTCHESTER COUNTY CLERK 06/20/2017 10:06 AM NYSCEF DOC. NO. 37 INDEX NO. 68943/2016 RECEIVED NYSCEF: 06/19/2017 Appearances Appearances Hausman Hausman & Pendzick Pendzick Attorneys for Attorneys for Plaintiff Plaintiff Via NYSCEF NYSCEF Law Offices Offices of Moira Moira Doherty, Doherty, P.C. Attorneys for Asad Gilani Attorneys for Defendants Defendants Sana Sana Gilani Gilani and Saeeda Saeed a Asad Gilani Via NYSCEF NYSCEF Vincent Aceste Vincent J. Aceste Attorney Defendants Hunter Hunter Klein and Stuart Stuart Klein Attorney for Defendants Via NYSCEF NYSCEF -5-5- / [* 5] 5 of 5 /

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