Dolengewicz v County of Nassau

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Dolengewicz v County of Nassau 2017 NY Slip Op 33438(U) June 6, 2017 Supreme Court, Nassau County Docket Number: Index No. 608035/16 Judge: Denise L. Sher 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: NASSAU COUNTY CLERK 06/08/2017 03:48 PM NYSCEF DOC. NO. 24 INDEX NO. 608035/2016 0 RECEIVED NYSCEF: 06/08/2017 SHORT FORM ORDER i SUPREME COURT OF THE STATE OF NEW YORK PRESENT: HON. DENISE L. SHER Acting Supreme Court {Justice TRIAL/IAS PART 35 NASSAU COUNTY PAMELA DOLENGEW ICZ, Plainiiff, i~ 1/ - against - Index No.: 608035/l(j Motion Seq. No.: 01 Motion Date: 03/15/17 COUNTY OF NASSAU and LOUIS A. FLORISSANT, 'j Defe:qdants. 'j The following papers have been read on this motion: Papers Numbered 1 Notice of Motion. Affirmation and Exhibits Affirmation in Opposition and Exhibit Affirmation in Reply 2 3 Upon the foregoing papers, it is ordered that the motion is decided as follows: Plaintiff moves, pursuant to CPLR .§ 3212, for an order granting partial summary 11 judgment against defendants on the issue or liability; and moves for an order directing that • ' discovery proceed on the issue of damages:: only; and moves for an order directing a trial on the !I issue of damages only. Defendants oppose:;the motion. ii This action arises from a motor vehicle accident that occurred on May 27, 2016, at or near its intersection with Broadway, 8:55 p.m., eastbound on Sunrise Highway/at ,, • 11 York. The accident involved three (3) vehicles, an Massapequa, County ofNassau, State ofl1i'ew :1 ,', 2008 Nissan, owned and operated by plaintiff, a 2008 Bus, owned by defendant County of c~ Nassau ("Nassau") and operated by defen4ant Louis A. Florissant ("Florissant") , and a 200;3 [* 1] 1 of 10 FILED: NASSAU COUNTY CLERK 06/08/2017 03:48 PM NYSCEF DOC. NO. 24 INDEX NO. 608035/2016 RECEIVED NYSCEF: 06/08/2017 Honda, owned and operated by non-party .A;.llison Lima ("Lima"). See Plaintiffs Affirmation in :i Support Exhibit D. Plaintiff commenced th~:i action with the filing of a Summons and Verified ., Complaint on or about October 18, 2016. See Plaintiff's Affirmation in Support Exhibit A. Issue was joined by defendants on or about Dece~ber 1, 2016. See Plaintiff's Affirmation in Support Exhibit B. Counsel for plaintiff submits that "~t]his is an action to recover damages for severe [I personal injuries sustained by plaintiff, PA:\VffiLA DOLENGEW ICZ (sic) the first motor vehicle involved in a three (3) vehicle rear ~nd chain collision accident. At the time of the collision, Plaintiff was stopped at a traffic Hght. The motor vehicle directly behind her operated -Ii . ) by non-party witness Allison Lima was als? stopped. The defendant LOUIS A. FLORISSANT, operating a COUNTY OF NASSAU motor vehicle, was the sole cause of the accident when his vehicle struck the rear of the Lima vehicle !lvhich then struck the rear of Plaintiffs vehicle .... Both Plaintiff and Allison Lima, a non-pan;y witness and victim of Defendant's negligence, state that the accident occurred on May 27, 2016, at approximately 9 pm on Sunrise Highway at the ' intersection of Broadway in Massapequa. They were both stopped at a light, with Plaintiff being !: first in line and Ms. Lima, right behind her.i Suddenly and without warning, the Defendant Ii vehicle crashed into the Lima vehicle which then struck the Plaintiffs vehicle causing Plaintiff to ii sustain serious and severe personal injuries including but not limited to a traumatic brain injury. I' When there is no question as to the facts o~ circumstances as to how an accident occurred, summary judgment should be granted as a matter oflaw. There are no facts from any source that :~ would indicate any contributory negligence on the part of the plaintiff. The defendants cannot ·!' offer a scintilla of evidence during the disdbvery in this matter to raise a question of fact sufficient to deny plaintiff summary judgrrient on the issue of liability." her own affidavit. See Plaintiffs Affirmation In support of the motion, plaintiff dhbmits ') -2- [* 2] 2 of 10 FILED: NASSAU COUNTY CLERK 06/08/2017 03:48 PM NYSCEF DOC. NO. 24 INDEX NO. 608035/2016 RECEIVED NYSCEF: 06/08/2017 in Support Exhibit E. In further support of fhe motion, plaintiff submits the affidavit of non-party i• witness Lima. See Plaintiff's Affirmation iri Support Exhibit F. Counsel for plaintiff argues that, "[p]laintiff has put forth evidence in admissible form to . ~ warrant the granting of summary judgment The defendants are unable to offer evidence to the contrary and as such, are not able to raise a'!question of fact as to how this accident occurred. ·1 Defendants cannot raise any question of fa~t as to th~ happening of this accident as the plaintiffs ., host vehicle was properly and lawfully stopped and struck in the rear by the SHEA (sic) vehicle and the accident occurred when the defend~t driver negligently failed to make proper observations and negligently failed to mairltain a safe distance behind the plaintiff's host vehicle I~ and struck it in the rear. There are no facts from any source that would indicate any contributory ;1 negligence on the part of the plaintiff or any third person or entity not a party to this action." Counsel for plaintiff further contends that defendant Florissant was the negligent party in 1\ " that he failed to maintain a safe distance b~hind non-party witness Lima's vehicle, as well as failed his duty to exercise reasonable care tnder the circumstances to avoid an accident. Counsel for plaintiff additionally claims that defen4ants cannot come up with a reasonable excuse or a non-negligent explanation for their vehicl~:Striking non-party witness Lima's vehicle in the rear, which in tum struck plaintiff's vehicle in the rear. In opposition to the motion, couns~l,. for defendants argues that, "[p]laintiff's motion j should be denied based on the evidence in the record, including but not limited to the Affidavit of ' !~ Defendant LOUIS A. FLORISSANT, whic,h establishes a non-negligent explanation for this rear-end collision that FLORISSANT was:cut off by the middle vehicle which executed an illegal " lane change immediately prior to the colli~f on .... Florissant was traveling east in the right or li south lane of Sunrise Highway in Massapequa. As he neared the intersection of Sunrise Highway and Broadway, there was a black Honda tr~veling in the lane immediately to his left or center -3- [* 3] 3 of 10 INDEX NO. 608035/2016 FILED: NASSAU COUNTY CLERK 06/08/2017 03:48 PM NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 06/08/2017 !! 1j lane, which he later came to find out was operated by Allison Lima. Without signaling, the Lima vehicle abruptly changed lanes from the ce~ter into the right lane where he was traveling. The ,; Lima vehicle stopped short as the traffic stopped at the light. Florissant braked when he observed :r the Lima vehicle cutting in front of him, but the bus is too heavy to stop on a dime and skidded into the Lima vehicle. The Lima vehicle struck plaintiffs vehicle. Lima's abrupt attempt to merge into defendant's lane, without yieldi:t;ig and without signaling, violated (sic) Vehicle and Traffic Law 1128(a) and 1163, was a proxifu.ate cause of the accident, and raises triable issues of -1 fact as a matter of law under controlling appellate precedent. [citations omitted]. Lima failed to grant the right of way or observe defendantf bus with the reasonable use of her senses. [citation 1: !( omitted]. Defendant's affidavit also raises i~sues of fact regarding the emergency doctrine defense. Defendant Florissant was faced w~~h an emergency not of his own making, to which he reasonably reacted by applying the brakes, ~ut was unable to avoid a collision. [citation omitted]. j, A driver's reaction to an emergency must be·, viewed within that context and is an issue for the jury to determine. [citation omitted]. Since ~his accident involved multiple vehicles, there is also a triable issue of fact as to whether defendants' negligence was the proximate cause of plaintiffs injuries." ,, Counsel for defendants adds that, "[i]n view of the foregoing, plaintiff's motion should be denied as premature under CPLR 3212(f). Party depositions and document discovery remain ll Depositions of nonparty witnesses need to be outstanding. This accident involved three vbhicles. ll ii conducted in order to assess liability and p~rticularly the sequence of events. A motion for swnmary judgment should be denied as prepiature where, as here, the evidence demonstrates that Ii ' further discovery and depositions will likely raise ·issues of fact requiring a trial." Defendant Florissant submits his o~ affidavit in support of the opposition. See A. Defendants' Affirmation in Opposition Exhibit ', =! It is well settled that the proponent ?fa motion for summary judgment must make a prima fade showing of entitlement to judginent as a matter of law by providing sufficient -4- [* 4] 4 of 10 FILED: NASSAU COUNTY CLERK 06/08/2017 03:48 PM NYSCEF DOC. NO. 24 INDEX NO. 608035/2016 RECEIVED NYSCEF: 06/08/2017 ;, evidence to demonstrate the absence of material issues of fact. See Sillman v. Twentieth Centuryi Fox Film Corp., 3 N.Y.2d 395, 165 N.Y.S.2d 498 (1957); Alvarez v. Prospect Hospital, 68 .. N.Y.2d 320,508 N.Y.S.2d 923 (1986); Zuc!kerman v. City ofNew York, 49 N.Y.2d 557,427 _ N.Y.S.2d 595 (1980); Bhatti v. Roche, 140 !~.D.2d 660, 528 N.Y.S.2d 1020 (2d Dept. 1988). To :.• i'. obtain summary judgment, the moving p ~ must establish its claim or defense by tendering sufficient evidentiary proof, in admissible ~orm, sufficient to warrant the court, as a matter of I· law, to direct judgment in the movant's favor. ,, See Friends ofAnimals, Inc. v. Associated Fur <' Mfrs., Inc., 46 N.Y.2d 1065, 416 N.Y.S.2d:iJ90 (1979). Such evidence may include deposition ,,; transcripts, as well as other proof annexed to an attorney's affirmation. See CPLR § 3212 (b); -r Olan v. Farrell Lines Inc., 64 N.Y.2d 1092·[ 489 N.Y.S.2d 884 (1985). If a sufficient prima facie showing {s demonstrated, the burden then shifts to the 1: non-moving party to come forward with cotnpetent evidence to demonstrate the existence of a -~ ,j material issue of fact, the existence of which necessarily precludes the granting of summary !, v. City ofNew York, supra. When considering a Zuckerman judgment and necessitates a trial. See . !] :~ motion for summary judgment, the functioh of the court is not to resolve issues but rather to !,: ! determine if any such material issues of fact exist. See Sillman v. Twentieth Century-Fox Film Corp., supra. Mere conclusions or unsubst~tiate d allegations are insufficient to raise a triable ,; Co., 70 N.Y.2d 966,525 N.Y.S.2d 793 (1988). issue. See Gilbert Frank Corp. v. Federal ins. ,, it must clearly appear that no material triable issue Further, to grant summary judgment, ·~ 1; of fact is presented. The burden on the Co~rt in deciding this type of motion is not to resolve issues of fact or determine matters of credibility, but merely to determine whether such issues ·f exist. See Barr v. Albany County, 50 N.Y.2d 247,428 N.Y.S.2d 665 (1980); Daliendo v. :: l Johnson, 147 A.D.2d 312, 543 N.Y.S.2d 987 (2d Dept. 1989). It is the existence of an issue, not !i its relative strength that is the critical and ~ontrolling consideration. See Barrett v. Jacobs, 255 N.Y. 520 (1931); Cross v. Cross, 112 A.DJ2d 62,491 N.Y.S.2d 353 (!51 Dept. 1985). The evidence should be construed in a light mo'st favorable to the party moved against. See We.iss v. -5- [* 5] 5 of 10 FILED: NASSAU COUNTY CLERK 06/08/2017 03:48 PM NYSCEF DOC. NO. 24 INDEX NO. 608035/2016 RECEIVED NYSCEF: 06/08/2017 Garfield, 21 A.D.2d 156,249 N.Y.S.2d 45~ (3d Dept. 1964). i• When the driver of an automobile approaches another automobile from the rear, he or she "Ii is bound to maintain a reasonably safe rate :1of speed and control over his or her vehicle and to ;j exercise reasonable care to avoid colliding with the other vehicle pursuant to New York State Vehicle and Traffic Law ("VTL") § 1129(a~. See Krakowska v. Niksa, 298 A.D.2d 561, 749 ,, N.Y.S.2d 55 (2d Dept. 2002); Bucceri v. Ft,azer, 297 A.D.2d 304, 746 N.Y.S.2d 185 (2d Dept. 2002). . A rear end collision with a vehicle Jstablishes a prima facie case of negligence on the part of the operator of the offending vehicle. See Tutrani v. County of Suffolk, 10 N.Y.3d 906, 861 N.Y.S.2d 610 (2008). Such a collision imposes a duty of explanation on the operator. See Hughes '! v. Cai, 55 A.D.3d 675, 866 N.Y.S.2d 253 (2d Dept. 2008); Gregson v. Terry, 35 A.D.3d 358, 827 N.Y.S.2d 181 (2d Dept. 2006); Belitsis v. Airborne Express Freight Corp., 306 A.D.2d 507, 761 i: N.Y.S.2d 329 (2d Dept. 2003). i As noted, a rear-end collision with stopped or stopping vehicle creates a prima facie I, case of liability with respect to the operator., of the rearmost vehicle, thereby requiring the by providing a non-negligent explanation for the operator to rebut the inference of negligen~e ,, collision. See Francisco v. Schoepfer, 30 ~.D.3d 275, 817 N.Y.S.2d 52 (1 st Dept. 2006); ,·,, McGregor v. Manzo, 295 A.D.2d 487, 744;N.Y.S.2d 467 (2d Dept. 2002). j Vehicle stops which are foreseeabl~ under the prevailing traffic conditions, even if sudden and frequent, must be anticipated b>1 the driver who follows, since the following driver is ll under a duty to maintain a safe distance between his or her car and the car ahead. See Shamah v. :i Richmond County Ambulance Service, Inc;!, 279 A.D.2d 564, 719 N.Y.S.2d 287 (2d Dept. 2001). ' F Drivers must maintain safe distances between their cars and the cars in front of them and this rule imposes on them a duty to be aw4e of traffic conditions including stopped vehicles. See VTL § 1129(a); Johnson v. Phillips, 261 A.D.2d 269,690 N.Y.S.2d 545 {l st Dept. 1999). Drivers have a duty to see what sh~uld be seen and to exercise reasonable care under the ~~ -6- [* 6] 6 of 10 FILED: NASSAU COUNTY CLERK 06/08/2017 03:48 PM NYSCEF DOC. NO. 24 INDEX NO. 608035/2016 RECEIVED NYSCEF: 06/08/2017 -~: circumstances to avoid an accident. See Fili.ppazzo v. Santiago, 277 A.D.2d 419, 716 N.Y.S.2d ~ . 710 (2d Dept. 2000). In the context of a rear end collision·, conclusory assertions that the driver of the lead vehicle made a sudden unexpected stop, stranding alone, is insufficient to rebut the presumption of negligence. See Bryne v. Calogero, 96 AiD.3d 704,945 N.Y.S.2d 737 (2d Dept. 2012); Hearn v. Manzolillo, 103 A.D.3d 689,959 N.Y.S;~d 531 (2d Dept. 2013); Campbell v. City of Yonkers, 37 A.D.3d 750, 833 N.Y.S.2d 101 (2d Dept,,,' 2007); Ayach v. Ghazal, 25 A.D.3d 742, 808 ! ' N.Y.S.2d 759 (2d Dept. 2006); Rainfordv. flan, 18 A.D.3d 638, 795 N.Y.S.2d 645 (2d Dept. i; 2005); Vecchio v. Hildebrand, 304 A.D.2d ,Y49, 758 N. Y.S.2d 666 (2d Dept. 2003); McGregor v. i Manzo, supra; Dileo v. Greenstein, 281 A.I).2d 586, 722 N.Y.S.2d (2d Dept. 2001); Shamah v ir= Richmond County Ambulance Services, .Inc.''. supra; Geschwind v Hoffman, 285 A.D.2d 448, 727 N.Y.S.2d 155 (2d Dept. 2001). j Thus, a sudden stop coupled with other evidence, such as a failure to comply with the •i VTL with respect to proper signaling (see P_~rcell v. Axelsen, 286 A.D.2d 379, 729 N.Y.S.2d 495 (2d Dept. 2001)), or stopping in high. speed ,,traffic (see Mundo v. City of Yonkers, 249 A.D.2d 522,672 N.Y.S.2d 128 (2d Dept. 1998) or i~ response to an emergency created by a non-party ·i (see Kienzle v. Mcloughlin, 202 A.D.2d 299,610 N.Y.S.2d.771 (!51 Dept. 1994)) can all !~ constitute a non-negligent explanation for t~e rear-end collision. Plaintiff, in her motion, has demonstrated primafacie entitlement to summary judgment ,1 :! on the issue of liability against defendants. Therefore, the burden shifts to defendants to demonstrate an issue of fact which preclude~ summary judgment. See Zuckerman v. City ofNew York, supra. After applying the law to the facts iri this case, the Court finds that defendants have met ' their burden to demonstrate an issue of fact }Vhich precludes summary judgment. Defendants' :~ , f argument that, without signaling, non-party Lima's vehicle abruptly chan$ed lanes from the center into the right lane where defendants' Yehicle was traveling and then stopped short at the -7- [* 7] 7 of 10 FILED: NASSAU COUNTY CLERK 06/08/2017 03:48 PM NYSCEF DOC. NO. 24 INDEX NO. 608035/2016 RECEIVED NYSCEF: 06/08/2017 ·•· traffic light, thereby violating Vehicle and Traffic Law 1128(a) and 1163, is sufficient to I\ establish a non-negligent explanation for d~fendants' vehicle striking non-party witness Lima's vehicle in the rear, which caused her vehicl~ to strike plaintiff's vehicle in the rear, and to rebut 11 the presumption of negligence. '11 The Court also finds that defendants have raised a triable issue of fact with respect to the application of the emergency doctrine -wh!ch would constitute a complete defense to the claims ; raised if subsequently established at trial. SJe generally Lifton v. City ofSyracuse, 17 N.Y.3d ;~ 492,934 N.Y.S.2d 38 (2011); Rivera v. Ne~ York City Transit Authority, 77 N.Y.2d 322, 567 ,j N.Y.S.2d 629 (1991); Ferrer v. Harris, 55 N.Y.2d 285,449 N.Y.S.2d 162 (1982); Majidv. New York City Transit Authority, 128 A.D.3d 64:8, 8 N.Y.S.3d 432 (2d Dept. 2015); Wemyss v. Ruszczyk, 126 A.D.3d 888, 5 N.Y.S.3d 506'(2d Dept. 2015); Vargas v. Akbar, 123 A.D.3d 1017, !' - 999 N.Y.S.2d 844 (2d Dept. 2014). In substance, the emergency doctrin~ holds that "those faced with a sudden and ;J unexpected circumstance, not of their own rhaking, that leaves them with little or no time for reflection or reasonably causes them to be sb disturbed that they are compelled to make a quick • decision without weighing al temati ve cour~es of conduct, may not be negligent if their actions are reasonable and prudent in the context of the emergency." Bello v. Tr-ans it Auth. ofN. Y. City, ,, 12 A.D.3d 58, 783 N.Y.S.2d 648 (2d Dept. ~004). See also Lifton v. City ofSyracuse, supra at 496-497; Rivera v. New York City Transit A~thority, supra at 327; Ferrer v. Harris, supra at " ' 293; Pacelli v. lntruck Leasing Corp., 1281}.D.3d 921, 10 N.Y.S.3d 149 (2d Dept. 2015). "A person in such an emergency situation 'caJot reasonably be held to the same accuracy of judgment or conduct as one who has had full opportunity to reflect, even though it later appears :1 that the actor made the wrong decision."' Rfvera v. New York City Transit Authority, supra at l 327 quoting PROSSER AND KEETON, TORTS§ 33, at 196 (5 th ed). See also Caristo v. Sanzone, 96 N.Y.2d 172, 726 N.Y.S.2d 334 (2001). Ho~ever, "[t]his is not to say that an emergency automatically absolves one from liability for his [or her] conduct. The standard then still remains -8- [* 8] 8 of 10 FILED: NASSAU COUNTY CLERK 06/08/2017 03:48 PM NYSCEF DOC. NO. 24 INDEX NO. 608035/2016 RECEIVED NYSCEF: 06/08/2017 that of a reasonable [person] under the given circumstances, except that the circumstances have changed." Ferrer v. Harris, supra at 293; Vargas v. Akbar, supra at 1019; Pawlukiewicz v. Boisson, 275 A.D.2d 446, 712 N.Y.S.2d 634 (2d Dept. 2000). See also Kuci v. Manhattan and Bronx Surface Transit Operating Authority, 88 N.Y.2d 923,646 N.Y.S.2d 788 (1996). With these principles in mind, the Court finds that there are questions of fact as to the events which immediately preceded defendants' vehicle's impact with non-party Lima's vehicle; the resolution of said fact intensive issues falls within the province of the finder of fact. See Takle v. New York City Transit Authority, 14 A.D.3d 608, 787 N.Y.S.2d 904 (2d Dept. 2005); Pawlukiewicz v. Boisson, supra at 447; Gildersleeve v. Leo, 274 A.D.2d 547,274 N.Y.S.2d 547 (2d Dept. 2000). See also Kuci v. Manhattan and Bronx Surface Transit Operating Authority, supra at 924; Rivera v. New York City Transit Authority, supra at 326-327; Hendrickson v. Philbor Motors, Inc., 101 A.D.3d 812,954 N.Y.S.2d 898 (2d Dept. 2012); Crawford-Dunk v. MVTransp., Inc., 83 A.D.3d 764, 920 N.Y.S.2d 672 (2d Dept. 2011). Questions have been presented with respect to whether defendant Florissant was "faced with a sudden and unexpected circumstance" within the meaning of the emergency doctrine. See Pavane v. Marte, 109 A.D.3d 970,971 N.Y.S.2d 562 (2d Dept. 2013); Martinez v. Academy Bus LLC, 51 A.D.3d 401,856 N.Y.S.2d 614 (P1 Dept. 2008); Tossas v. Ponce, 24 A.D.3d 224, 804 N.Y.S.2d 919 (1st Dept. 2005); Pawlukiewicz v. Boisson, supra at 447; Trevino v. Castro, 256 A.D.2d 6,680 N.Y.S.2d 517 (1 st Dept. 1998). See also Levy v. Braman Motorcars, 119 A.D.3d 530, 990 N.Y.S.2d 45 (2d Dept. 2014); Singh v. MTA Bus Co., 88 A.D.3d 865,931 N.Y.S.2d 518 (2d Dept. 2011). It is settled that where "there is some reasonable view of the evidence that establishes that an actor was confronted by a sudden and unforeseen occurrence not of the actor's own making, then the reasonableness of the conduct in the face of the emergency is for the jury." Kuci v. Manhattan and Bronx Surface Transit Operating Authority, supra at 924. See also Pelletier v. Lahm, 111 A.D.3d 807, 975 N.Y.S.2d 135 (2d Dept. 2013) ajf'd24 N.Y.3d 966, 994 N.Y.S.2d 565 (2014); Caristo v. Sanzone, supra at 175; Rivera v. New York City Transit Authority, supra at 326-327; [* 9] 9 of 10 INDEX NO. 608035/2016 FILED: NASSAU COUNTY CLERK 06/08/2017 03:48 PM NYSCEF DOC. NO. 24 RECEIVED NYSCEF: 06/08/2017 'f Mohr v. Carlson, 120 A.D.3d 1206, 992 N.y_S.2d 321 (2d Dept. 2014); Pavane v. Marte, supra ' at 972. Relatedly, "[r]esolving questions ofredibility, assessing the accuracy of witnesses, and ,\ reconciling conflicting statements are tasks ,,entrusted to the trier of fact." Bravo v. Vargas, 113 !~ A.D.3d 579,978 N.Y.S.2d 307 (2d Dept. 2014). The record does not otherwise establish plaintiff's entitlement to judgment as a mat:er of law. See Levy v. Braman Motorcars, supra; ,; Williams v. City ofNew York, 88 A.D.3d 989,931 N.Y.S.2d 656 (2d Dept. 2011). Additionally, it is apparent that little,,, if any, discovery had been completed prior to the making of plaintiff's motion. It is settled that "[a] party should be afforded a reasonable j I opportunity to conduct discovery prior to thb determi~ation of a motion for summary judgment." ' See Valdivia v. Consolidated Resistance Co~,, ofAmerica, Inc., 54 A.D.3d 753,863 N.Y.S.2d 720 i., (2d Dept. 2008); Venables v. Sagona, 46 A.b.3d 672,848 N.Y.S.2d 238 (2d Dept. 2007). See :l generally Gruenfeldv. City ofNew Rochelle, 72 A.D.3d 1025, 2010 WL 1716148 (2d Dept. I: 2010); Gonzalez v. Nutech Auto Sales, 69 A.D.3d 792,891 N.Y.S.2d 910 (2d Dept. 2010); Elliot ; I v. County ofNassau, 53 A.D.3d 561, 862 N;Y.S.2d 90 (2d Dept. 2008); Fazio v. Brandywine Realty Trust, 29 A.D.3d 939, 815 N.Y.S.2d'470 (2d Dept. 2006). Accordingly, based upon all of the above, plaintiffs motion, pursuant to CPLR § 3212, ., for an order granting partial summary judg111~nt against defendants on the issue of liability; and for an order directing that discovery procee9 on the issue of damages only; and for an order directing a trial on the issue of damages only, is hereby DENIED. ii All parties shall appear for a Compliance Conference in IAS Part 35, Nassau County i: ., Supreme Court, 100 Supreme Court Drive, Mineola, New York, on August 1, 2017, at 9:30 a.m. This constitutes the Decision and O~der of this Court·. '!- JUN O8 '2017 :! Dated: Mineola, New York NASSAU (}OUNTY June 6, 2017 COUNTY CLERK'S OFFICE -10- [* 10] 10 of 10

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