Perez v Zamora

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Perez v Zamora 2017 NY Slip Op 33433(U) May 11, 2017 Supreme Court, Westchester County Docket Number: Index No. 67889/2016 Judge: Sam D. Walker 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: WESTCHESTER COUNTY CLERK 05/11/2017 12:10 PM NYSCEF DOC. NO. 12 INDEX NO. 67889/2016 RECEIVED NYSCEF: 05/11/2017 commence the the statutory statutory time time To commence period for for appeals appeals as of of right right period (CPLR 5513 5513 [a]), [a]), you you are are (CPLR advised to to serve serve a copy copy of of thise thise advised order, with with notice notice of of entry, entry, order, upon all all parties. parties. upon SUPREME COURT COURT OF THE THE STATE STATE OF NEW NEW YORK SUPREME YORK WESTCHESTER COUNTY COUNTY WESTCHESTER PRE SEN HON. SAM SAM D. WALKER, WALKER, J.S.C. J.S.C. P RES E N T: HON. -)( - - - - - - - - - - - - - - - - ~~ - - - - - - - - - - - - - - - - - - - - - -x MARIA PEREZ, PEREZ, MARIA Plaintiff, Plaintiff, Inde)( NO.67889/2016 Index No.67889/2016 DECISION & ORDER ORDER DECISION Seq. 1 -against-againstEDUARDO J. ZAMORA, ZAMORA, EDUARDO Defendants. Defendants. -)( - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x The foll~wing foll~wing papers papers were were read ori on a motion motion for for summary summary judgment pursuant to The judgment pursuant CPLR 3212, 3212, on the the issue issue of liability: liability: CPLR NUMBERED NUMBERED 1-7 PAPERS PAPERS Notice of Motion/Affirmation/Exhibits Motion/Affirmation/E)(hibits A-E Notice A-E Upon the foregoing foregoing papers papers it is ·ordered 'ordered that that the motion motion is GRANTED. GRANTED. Upon FACTUAL AND PROCEDURAL BACKGROUND FACTUALANDPROCEDURALBACKGROUND This action action arises arises from from a motor motor vehicle vehicle accident accident which which occurred occurred on August This August 16, 2015, at or near near the intersection intersection of S. Healy Healy Avenue Greenburgh, Westchester Westchester County, County, Avenue in Greenburgh, 2015, Plaintiff, Maria Maria Perez Perez ("Perez") ("Perez") alleges alleges that that on that that date, date, her vehicle vehicle was was struck struck New York. Plaintiff, vehicle owned owned and operated operated by the defendant, defendant, Eduardo Eduardo J. Zamora Zamora in the rear by a vehicle ("Zamora"), as she was was operating operating her vehicle stopped in the the left lane lane waiting make waiting to make ("Zamora"), vehicle and stopped 11 [* 1] 1 of 4 FILED: WESTCHESTER COUNTY CLERK 05/11/2017 12:10 PM NYSCEF DOC. NO. 12 INDEX NO. 67889/2016 RECEIVED NYSCEF: 05/11/2017 onto S. Healy Healy Avenue. a left turn onto Avenue. Plaintiff this action 2016, by filing Plaintiff commenced commenced this action on November November 29, 29,2016, filing a summons summons and complaint. 2017 and served complaint. Defendant Defendant filed an answer answer on January January 10, 10,2017 served such answer answer upon Perez, joining joining issue. The The parties parties have not yet engaged engaged in discovery. discovery. Plaintiff Plaintiff now now files files the instant seeking summary judgment, pursuant of liability. instant motion motion seeking summary judgment, pursuanttoto CPLR CPLR 3212 3212 on the issue issue of liability. Zamora's attorney attorney has filed an affirmation affirmation in response response to the motion, motion, stating stating that that Zamora Zamora Zamora's does does not oppose oppose plaintiff's plaintiff's motion, motion, but requests requests an opportunity opportunity to conduct conduct discovery discovery on the issue of of damages. damages. LIABILITY LIABILITY Plaintiff judgment. Specifically, Plaintiff seeks seeks partial partial summary summary judgment. Specifically, she she requests requests a determination determination of the liability liability issue issue in her her favor. favor. In support support of her her motion, motion, the plaintiff plaintiff has submitted submitted her affidavit, her attorney's affirmation and a copy copy of the pleadings. pleadings. affidavit, attorney's affirmation judgment must A party party on a motion motion for for summary summary judgment must assemble assemble affirmative affirmative proof proof to establish judgment as a matter Zuckerman v. establish his entitlement entitlement to judgment matter of of law, Zuckerman v. City City of of N. Y., Y., 49 N.Y.2d 427 N.Y.S.2d N.Y.2d 557, 557,427 N.Y.S.2d 595, 404 404 N.E.2d N.E.2d 718(1980). 718(1980). To demonstrate demonstrate its entitlement entitlement to relief relief the moving moving party party must must come come forward forward with evidentiary evidentiary proof proof that that establishes establishes the fact, McDonald A.D.3d 727, 728 (2d Dep't absence absence of any any material material issues issues of offact, McDonald v. v. Mauss, Mauss, 38 A.D.3d Dep't judgment motion facie showing 2007). 2007). "[T]he "[T]he proponent proponent of a summary summary judgment motion must must make make a prima prima facie showing of entitlement judgment as a matter entitlement to judgment matter of law, tendering tendering sufficient sufficient evidence evidence to demonstrate demonstrate absence of of any any material issues of fact," fact," Alvarez v. Prospect Prospect Hosp., Hosp., 68 N.Y.2d N.Y.2d 320, material issues Alvarez v. the absence 324(1986). Only Only when such a showing showing has been_ been made made must must the opposing opposing party party set forth_ forth 324(1986). when such evidentiary proof proof establishing establishing the existence existence of a material material issue issue of fact, Winegrad Winegrad v. v. New New evidentiary N.Y.2d 851,853 851, 853 (1985). (1985). York Univ. Med. Ctr., 64 N.Y.2d 2 [* 2] 2 of 4 FILED: WESTCHESTER COUNTY CLERK 05/11/2017 12:10 PM NYSCEF DOC. NO. 12 INDEX NO. 67889/2016 RECEIVED NYSCEF: 05/11/2017 vehicle creates stopped vehicle with a stopped settled that that a rear-end rear-end collision collision with creates a a It is also well settled injured the injured thus entitling was negligent, vehicle was presumption operator of ofthe moving vehicle negligent, thus entitling the the moving the operator that the on that presumpti the the driver judgment on liability occupants of of the summary 'judgment liability unless unless the driver of of the vehicle to summary front vehicle the front occupants Agramonte vv City the collision, for the moving vehicle proffer a non-neglig non-negligent explanationn for collision, Agramonte City ent explanatio vehicle can proffer moving 269, 271 (1999); A.D.2d 269, Phillips, 261 AD.2d of New New York, 288AD.2d (2001); Johnson (1999); Johnson v Phillips, 288 A.D.2d 75, 76 (2001); of 957 (1999). dismissed 93 NY2d Danza (1998), Iv dismissed NY2d 957 (1999). 435 (1998), 434, 435 AD2d 434, 256 AD2d Longieliere, 256 Danza v Longieliere, facie creates a prima vehicle creates stopping vehicle Furthermore, rear-end collision prima facie stopped or stopping collision with a stopped re, a rear-end Furthermo on duty on a duty vehicle and imposes the rear of the case of negligenc negligencee with with respect respect to the rear vehicle imposes a operator of the operator case explanation ent explanation that operator operator to rebut rebut the inference of of negligence negligence by providing providing a non-neglig non-negligent the inference that 2015). A.D.3d 1134, for the collision, collision, Finney Finney v. Morton 127 AD.3d 1134,77 N.Y.S.3d N.Y.S.3d 508 (2d Dep't Dep't 2015). v. Morton for this case, case, the plaintiff plaintiff has made made out a prima prima facie facie showing showing of of her her entitlemen entitlement t to to In this establishes entitlemen summary judgment. The evidence evidence submitted submitted by the plaintiff plaintiff establishes entitlement t to to judgment. The summary the defendant the burden summary judgment matter of law, thereby shifting the burden to the defendant to to thereby shifting judgment as a matter summary Macauley v. demonstratete the existence of a factual issue requiring requiring a trial. Macauley v. Elrac, Inc., 6 6 factual issue the existence demonstra facie sufficient to create AD.3d Dep't 2004)[Rear-end collision is sufficient create a prima prima facie 2004)[Rear-end collision A.D.3d 584, 585 (2d Dep't and on and this presumpti fails to rebut vehicle fails case liability.]. If the rebut this presumption striking vehicle the striking operator of the the operator of liability.]. case of summary entitled to summary vehicle is entitled stopped vehicle the inference of negligence, , the the stopped of the operator of the operator of negligence the inference 205 (2d Dep't A.D.2d 205 273 AD.2d New York. 273 judgment issue of liability. Leonard v. City City of of New Dep't Leonard v. of liability. the issue judgment on the AD2d 269 AD2d 2000); Velasquez 2000); v. Klein. 273 Dep't 2000); Velasquez v. v. Quijada. Quijada. 269 AD2d 281 (2d Dep't 273 AD2d Longhito v. 2000); Longhito 2000). 269A.D.2d 483 592 (2d (2d Dep't Dep't 2000); 2000); Brant Brant v.Senatob v.Senatobiaia Operating Operating Corp., 269AD.2d 483 (2d Dep't Dep't 2000). 592 the Second In Leal Leal v. v. Wolf Wolf 224 AD.2d 638 N. N.Y.S2d Dep't't 1996), 1996), the Second Departme Departmentnt held held Y. S2d 110 (2d Dep A. D. 2d 638 In that "since "since the defendant defendant was under a duty duty to keep a safe safe distance distance between between his car and and was under that 3 [* 3] 3 of 4 FILED: WESTCHESTER COUNTY CLERK 05/11/2017 12:10 PM NYSCEF DOC. NO. 12 INDEX NO. 67889/2016 RECEIVED NYSCEF: 05/11/2017 Leal's car car (see (see Vehicle Vehicle and Traffic Traffic Law Law Section Section 1129[a]), 1129[a]), his failure failure to do so in absence absence of of Leal's negligent explanation explanation construed construed negligence negligence as a matter matter of of law law (See, (See, Silberman Silberman v. v. a non negligent Surrey Cadillac Cadillac Limousine Limousine Service, Service, 109 A.D.2d A.D.2d 883)". 883)". Surrey Here, the defendant defendant did not oppose oppose the the plaintiffs plaintiff's motion motion for for summary summary judgment Here, judgment on liability. Therefore, Therefore, based based on all the the foregoing, foregoing, the the motion motion is GRANTED. GRANTED. liability. The partes partes are directed directed to appear appear before before the the Preliminary Preliminary Conference Conference Part Part on June June The 12,2017 9:30 a.m. in Courtroom Courtroom 811. The The foregoing foregoing shall shall constitute constitute the the Decision Decision and 12, 2017 at 9:30 Order of of the the Court. Court. Order Dated: White White Plains, Plains, New New York York Dated: May I ,2017 2017 May III , UL.~ SAM D. WALKER, WALKER, J.S.C. J.S.C. HON. SAM 4 [* 4] 4 of 4

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