Arevalo v Djurkinjak

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Arevalo v Djurkinjak 2017 NY Slip Op 33442(U) August 4, 2017 Supreme Court, Westchester County Docket Number: Index No. 50985/17 Judge: David F. Everett 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 08/04/2017 02:44 PM NYSCEF DOC. NO. 25 INDEX NO. 50985/2017 RECEIVED NYSCEF: 08/04/2017 commence the the 30-day 30-day statutory statutory tiine time period period for appeals appeals as ofright of right under under CPLR CPLR 5513 5513 (a), (a), you you are are advised advised to serve serve To commence copy of of this order, order, with with notice notice of of entry, entry, upon upon all parties. parties. a copy SUPREME NEW YORK SUPREME .COURT COURT OF THE THE STATE STATE OF NEW YORK COUNTY OF WESTCHESTE~R WESTCHESTE~R . COUNTY _ ------------------------------------------~-----· ----- ---------:X ------------------------------------------~-----~---------------~)( MONICA AREY AREVALO, MONICA ALO,.. Plaintiff, Plaintiff, Index No. 50985/17 50985/17 Index Motion Sequence Sequence No. 001 . Motion Decision and and Order Order Decision -against-againstKRISTA DJURKINJAK DJURKINJAK and BRANKO BRANKO DJURKINJAK, DJURKINJAK, KRISTA Defendants. . Defendants.- ------------------------------.. -- .------· ---------------- --.---X . ------------------------------------------~----------------~-----)( EVERETT, J. EVERETT, The following following papers papers were were read read on the motion: motion: The of Motiori/ Motiori/ Affirmation Affirmation in in Supp/ Supp/ Aff Aff of of Service!Efhibits Service/E~hibits 1-6/ - Notice Notice of Aff of of Service Service of of Motion Motion '· Aff Plaintiff Monica Monica Arevalo Arevalo (Arevalo) (Arevalo) moves moves for an order, order, pursuant pursuant to CPLR CPLR 3212, 3212, granting granting Plaintiff summary judgment against defendants defendants Krista Krista Djufkinjak Djufkinjak and Branko Branko Djurkinjak Djurkinjak on the the issue issue of of summary judgment against liability. Upon Upon the the foregoing foregoing papers,the papers, the unopposed unopposed motion motion is granted. granted. liability. following facts are taken taken from the pleadings, pleadings, motion motion papers, papers, affidavits, affidavits, documentary documentary The following evidence and andt1?e record, and and evidence ~e record, undisputed unless unless otherwise otherwise indicated. indicated. are undisputed Plaintiff commenced commenced the the instant instant action action by filing filing a summons summons and.complaint and complaint in the the Office Office Plaintiff of the Westchester Westchester County County Clerk Clerk on January January 23, 23,2017, recover damages damages arising arising from an of 2017, to recover automobile accident, September 17, 17,2016. automobile accident, which which occurred occurred on September 2016. It is alleged alleged that, that, at approximately approximately 7:45 a.m., the motor motor vehicle'being vehicle·being operated operated by Arevalo, Arevalo, who who was traveling traveling southbound southbound on Rumsey Road in Yonkers, Yonkers, New Rumsey New York, was struck struck by the vehicle vehicle owned owned by Branko Branko Djurkinjak Djurkinjak operated by Krista and operated Krista Djurkinjak Djurkinjak at or about about the intersection intersection of of Rumsey Rumsey Road Road and and Wendover Wendover [* 1] 1 of 4 INDEX NO. 50985/2017 FILED: WESTCHESTER COUNTY CLERK 08/04/2017 02:44 PM NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 08/04/2017 Road, Yonkers, New York, York, causing Issue was was joined joined by service service of Road, Yonkers, New causing her to sustain sustain a serious serious injury. injury. Issue Of defendants' joint answer with affirmative March 21, 2017, and Arevalo defendants' joint answer with affirmative defenses.on defenses'on or about about March 2017; and Arevalo now now moves judgment on the issue of liability. moves for summary summary judgment issue of liability. motion for ~ummary summary judgm~nt, judgment, which the procedural equivalent proponent of , As the proponent of a motion which is theprocedw-al equivalent of plaintiff "must prima face showing judgment as a matter matter of of of a trial, plaintiff "must make make a prima showin~ of of entitlement entitlement to judgment the absence any material material issues issues of law, tending tending sufficient s~fficient evidence evidence to demonstrate demonstrate,the absence of ofariy of fact. ".. . pri~a facie showing showing require~ requires a denial of regardless of Failure to make Failure make su~h such prima of the motion, motion, regardless of the . ' papers" (Alvarez Prospect Hosp., Hosp., 68 NY2d NY2d 320, sufficiency sufficiency of of the opposing opposirig papers" (Alvarez v Prospect 320, 324 [1986)). [1986]). Summary judgment: Summary judgment: "'should not be granted because th~ the party party against whom judgment judgment is '''should not granted merely merely because against whorri sought failed to submit papers in opposition sought failed submit papers opposition to the motion motion (i.e., 'defaulted') 'defaulted') 1-800 Beargram Beargram Co., 373 F3d 241, 241,244 (Vermont Teddy Bear Bear Co. v 1-800 (Vermont Teddy 244 [2d Cir Cir 2004] ['the judgment alone not justify justify the, the ' ['the failure failure to oppose oppose a motion motion for summary summary judgment alone does does not of summary judgment. Instead, the ... court must still assess whether granting granting of summary judgment. Instead, the; .. court must assess whether that there there is no genuine moving party party has fulfilled burden of the moving fulfilled its burden of demonstrating demonstrating that genuine judgment as a matter matter of law']; see issue of issue of material material fact and its entitlement entitlement to judgment oflaw']; AD2d 114, 115 [[1985]).' 1985]).' (Liberty Taxi Mgt., Inc. v Cugini Cugini v System System Lbr. Co., 111 III AD2d (LibertyTaxi st Dept Dept 2006])'" 2006])'''' Gincherman, 32 AD3d Gincherman, AD3d 276, 277 n [1 [1 51 ·, .· (Brown I 027-1028 [Sup [Sup Ct, Kings Kings County 2011 ]). The function of (Brown v Coca, 31 Misc Misc 3d 1025, '1027-1028 County 2011]). The function of the summary judgment motion identify whether whether there there are material material issues summary judgment motion court court is to identify issues of of fact for resolution trier of Assoc. v Globe NY2d 338, resolution by the trier of fact (S..J (S..J Cape/in Capelin Ass~c. Globe Mfg. Corp., Corp., 34 ~Y2d 338, 341 [1974]; Sillman Sillman v Twentieth Century-Fox Film 395, 404 [1957];Assafv [1957]; Assafv Ropog Ropog [1974]; Twentieth Century-Fox Film Corp., Corp., 3 NY2d NY2d 395,404 AD2d 520, 521 [[151 Dept 1989]). Cab Corp., 153 AD2d I st Dept of the instant instant motion, motion, Arevalo Arevalo submits submits a sworn sworn affidavit affidavit attesting attesting to the facts ·, In support support of constituting the claim. claim. Specifically, Specifically, Arevalo avers, in relevant relevant part, that after afterpeing stopped constituting Arevalo avers, part, that peing in a stopped . . " , position subject intersection intersection for appr.oxi~ately appr.oxi~ately .15 .15 seconds seconds at a traffic traffic signal signal that position at the subject that was red in 2 [* 2] 2 of 4 . INDEX NO. 50985/2017 FILED: WESTCHESTER COUNTY CLERK 08/04/2017 02:44 PM NYSCEF DOC. NO. 25 RECEIVED NYSCEF: 08/04/2017 . . \ . (southbound) directi~n direction oftr~vel, oftr~vel, she was was ''unexpectedly "unex~ectedly struck struck directly di~ectly in the rear rear by her (southbound) . ' . ' . defendants' 2013 Toyota Toyota ... ... which which came came up from behind behind me traveling traveling in the the same same southbound· southbound defendants' the ).'. Areval~ _either' the o"r a horn direction" direction" (Arevalo (Arevalo aff, ,r ~4 4). Arevalo ~enies ~enies hearing hearing either the sound soundo'fa hom or the sound sound of of · screeching brak~s brak~s prior prior to impact, impact, and ~nd ·she she rec~ls recalls Krista Krista Djurkinjak Djurkinjak apologizing, apologizing, stating stating that that she screeching • C • • • • • c~r until until it was was too late to avoid avoid co~tact, co~tact, and exchanging relevant relevant information: information (id. did not see her c~ _and exchanging tj/tj/4,6). 114, 6). With respect respect to collisions collisions between between moving moving vehicles, vehicles, or bet\\'een between a moving moving vehicle vehicle and a With stopped vehicle, vehicle, .it it . is well well settled settled that, that, ''[ "[ w w]hen driver. of of an automobile automobile approaches approaches another. another stopped ]hen the driver . . . automobile from from the_ the rear, he or she is ho':llld bmmd to maintain maintain a reasonably_safe reasonably safe rate rate of cif speed speed and and . automobile control over her vehicle, vehicle, and and to exercise exercise reasonable reasonable care care to avoid avoid colliding colliding with with the other. other. control over his or her J. . J vehicle" (Taing (Taing v Drewery, AD3d 740~ 740,741 Dept 2012]). 2012]). It -is is also also well well settled settled law law that, that, vehicle" Drewery, 100 AD3d 741 [2d Dept . // . "any rear-end-collision rear-end collision establishes establishes a pri_~a prima facie case of of negligence negligence on the the part part of of the the rear-ending rear-ending "any . . .' ~ ~ driver" (De La Cruz v Ock,Wee Ock, Wee Leong, AD3d 199, 199,200 [1stSI D~pt Dept 2005]), 2005]), and that, that, when "a• "a. La Cr'uz Leong, 16 AD3d 200 [1 and when driver" . . . rear-end collision collision occurs, occurs, the occupants occupants of of the front vehicle vehicle entitled to summary summary judgment judgment on rear-end . are entitled .. liability, unless unless the driver driver of of the following following vehicle vehiCle can provide provide a nonnegligent nonnegligentexplanation, liability, explanation, in in evidentiary form, for for the coHision" collision" (Johnson (Johnson v Phillips, AD2d269, Dept 1999]). 1999]). evidentiary Phillips, 261 AD2d 269, 271 [[PI I st Dept Finally, Vehicle VehiCle and and Traffic Traffic Law§ Law S 1129 provides, provides, at subsection subsection (a), that that"[t]he driver of ofaa motor motor "[t]he driver Finally, vehicle shall shall not riot follow follow another another vehicle vehicle !lloie more ~losely ~losely than than is reasonabl~ reasonabl~ and and prudent, having due prudent, having vehicle regard for the speed speed of of such such vehicles vehicles and the traffic traffic upon upon and and the the condition condition of of the the highway." highway." regard Here, plaintiff satisfied satisfied her prima burden of of establishing establishing negligence negligence on the part ~f · Here;plaintiff prirria facie burden part ~f defendants as asaa matter matter of of law law on the issue issue of cif liability liability by by submitting submitting evidence evidence that that her her stopped stopped defendants vehicle was struck struck in the rear rear by the ~ehicle ,:,ehicle operated operated biKrista made the vehicle by.Krista Djurkinjak.Having Djurki~jak. ·Having made 3 [* 3] 3 of 4 .__,. FILED: WESTCHESTER COUNTY CLERK 08/04/2017 02:44 PM NYSCEF DOC. NO. 25 INDEX NO. 50985/2017 RECEIVED NYSCEF: 08/04/2017 requisite showing, showing, the burden shifts to defendants defendants to pr~duce evidentiary proof admissible . requisite burden shifts pr~duce evidentiary proof in admissible suffiCient to require require a trial on one or more more issues issues of of fact (Zuckerman (Zuckerman v City City of a/New form sufficient New York, 49 NY2d 557, 562 [1980]). [1980]). By failing failing to challenge challenge Arevalo's Arevalo's evidence, evidence, or her her prima facie showing, showing, NY2d 557,562 prima facie defendants effectively effectively concede.that concede.that there there are no material material issues issues of of fact for resolution resolution by thetrier the trier defendants of fact. of Accordingly, it appearing appearing to the Court Court that plaintiff entitled to judgment liability and plaintiff is entitled judgment on liability Accordingly, triable issues issues of of fact relate relate only only to the amount amount of of damages damages to which which she is entitled, entitled, that the triable it is ORDERED that that plaintiffs motion for summary summary judgme~t granted with with regard regard to ORDERED plaintiffs motion judgme~t is granted liability; and it is further further liability; ORDERED that that c_ounsel c.ounsel for th~ parties directed to appear appear at the Westchester Westchester County County ORDERED parties are directed Courthouse, 111 111 Dr. Martin Martin Luther Luther King, King, Jr. Blvd., Blvd., White White Plains, Plains, New York, at the Compliance New York, Compliance Courthouse, Conference Part, Courtroom Courtroom 800, on August August 22, 22,2017, 9:30 a.m. Conference 2017, at 9:30 This constitutes constitutes the decision decision and order order of of the Court. Court. This Dated: White White Plains, Plains, New York NewYork Dated: August 4, 4,2017 August 2017 ENTER: ENTER: ~~y~ ~~y~ HON. DAVID DAVID F. F.EVERETT, A.J.S.C. HON. EVERETT, A.J.S.C. Omrani &' &'Taub Ornrani Taub P.C. Third A Avenue 909 Third venue New New York, New New York York 10022 Office of of Bryan Bryan M. Kulak Kulak Law Office Crystal Run Road Road . ·. ·. 90 Crystal Middletown, New York 10941 Middletown, New York 4· 4' [* 4] 4 of 4 \

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