Fasciglione v Micheli

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Fasciglione v Micheli 2017 NY Slip Op 33449(U) November 21, 2017 Supreme Court, Nassau County Docket Number: Index No. 610078/2016 Judge: Leonard D. Steinman 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. 610078/2016 FILED: NASSAU COUNTY CLERK 11/27/2017 0 NYSCEF •DOC. NO. 23 RECEIVED NYSCEF: 11/28/2017 i SUPREME COURT OF THE STATE OF NEW YOIU( COUNTY OF NASSAU ,,; --------------------------------------------------------------------: -· X IAS Part 21 Index No.: 610078/2016 Motion Seq. No. 001 MICHAEL FASCIGLIONE, Plaintiff, DECISION AND ORDER -against! MARK MICHELI and 4L EQUIPMENT LEASING, [(.LC, ii Defendants. ------------------------------------------ -------'----X LEONARD D. STEINMAN, J. The following papers, in addition to any memoranda of law, were reviewed in preparing this Decision and Order: ' Plaintiffs Notice of Motion, Affirmation, Affidavit & Exhibits ........................ 1 Defendants' Affirmation in Opposition & Exhibi( ....................................... 2 Plaintiffs Reply Affirmation ........................ :........................................ 3 \ ? The action, which was commenced on December 1, 2016, arises out of an accident that occurred on November 12, 2016, when the vehicle owned by plaintiff and operated by i~ James Mariani was struck in the rear by the vehicle driveµ by Mark Micheli and owned by 4L Equipment Leasing, LLC. At the time of the acciden(plaintiffwas a passenger in his ,,; vehicle. Plaintiff now seeks summary judgment pursuant: to CPLR 3212 on the issue of l liability. Defendants oppose the application. ' It is undisputed that plaintiff was a passenger in a iehicle that was struck in the rear " by Micheli. In support of his application, plaintiff has supmitted his sworn affidavit in which ' he states that his vehicle was stopped at a red traffic lightfor approximately thirty seconds •j~ prior to impact. ·,_ !: [* 1] 1 of 4 INDEX NO. 610078/2016 FILED: NASSAU COUNTY CLERK 11/27/2017 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 11/28/2017 It is the movant, here plaintiff, who has the burdep to establish an entitlement to summary judgment as a matter of law. Ferrante v. American Lung Assn., 90 N.Y.2d 623 (1997). "CPLR §3212(b) requires the proponent of a mo\ion for summary judgment to demonstrate the absence of genuine issues of material facts on every relevant issue raised by i the pleadings, including any affirmative defenses." Stone' v. Continental Ins. Co., 234 ,I A.D.2d 282, 284 (2d Dept. 1996). Where the movant fails to meet its initial burden, the '/ motion for summary judgment should be denied. US Bqnk NA. v. Weinman, 123 A.D.3d ii 1 1108 (2d Dept. 2014). A passenger-plainti ff moving for summary judgm~nt on the issue of liability must "meet the twofold burden of establishing that he or she W?S free from comparative fault and was, instead, an innocent passenger, and separately, that the operator of the rear vehicle was 'i' at fault. If the plaintiff fails to demonstrate, prima facie, that the operator of the offending ; vehicle was at fault, or if triable issues of fact are raised by the defendants in opposition ... summary judgment on the issue of liability 1nust be denied, even if the moving l plaintiff was an innocent passenger." Phillip v. D & D Cttrting Co., Inc., 136 A.D.3d 18, 23 (2d Dept. 2015). Neither party denies or disputes that the front of the vehicle driven by Micheli struck :1 the rear of the vehicle in which plaintiff was a passenger.:: "[A] rear-end collision establishes '· aprimafacie case of negligence on the part of the operator of the rear vehicle, thereby I requiring that operator to rebut the inference of negligenc~ by providing a non-negligent explanation for the collision." Gleason v. Villegas, 81 A.:p.3d 889 (2d Dept. 2011). "When a driver of an automobile approaches another ,, automobile from the rear, he or she is bound to maintain a reasonably safe rate of speed arid control over his or her vehicle, I and to exercise reasonable care to avoid colliding with the other vehicle." Filippazzo v. Santiago, 277 A.D.2d 419 (2d Dept. 2000); Vehicle and Traffic Law§ 1129 (a). This rule 'I imposes upon drivers the duty to be aware of traffic condi!ions, including vehicle stoppages. Johnson v. Phillips, 261 A.D.2d 269 (1st Dept. 1999). Thjs obligation has even been applied to circumstances where the front vehicle stops suddenly. See Mascitti v. Greene, 250 A.D.2d 821 (2d Dept. 1998). "Drivers have a duty to see what should be seen and to exercise [* 2] 2 of 4 INDEX NO. 610078/2016 FILED: NASSAU COUNTY CLERK 11/27/2017 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 11/28/2017 reasonable care under the circumstances to avoid an accid,ent." Filippazzo v. Santiago, 277 A.D.2d 419,420 (2d Dept. 2000). Here, plaintiff establisihed his entitlement to summary ' judgment as a matter of law on the issue of liability by demonstra ting that he was not at fault f for the accident and that the operator of the vehicle that struck him in the rear was at fault. Defendants have failed to offer any explanation for the accident but instead oppose ! the application for summary judgment stating that there are questions of fact to be determined and that the deposition of the driver of plaintiff's vehicle is necessary. " ' s failed to submit an affidavit or Defendants assert no facts raising a triable issue. Defen1ant other evidence explaining the circumstances leading to th~ accident. When the operator of the moving vehicle cannot come forward with evidence td rebut the inference of negligence, '[ the moving party may be awarded judgment. Ortiz v. Fage USA Corp., 69 A.D.3d 914 (2d Dept. 2010); Abramov v. Campbell, 303 A.D.2d 697 (2d Dept. 2003). While defendants •l• ' contend that there can be more than one proximate cause of ., an accident, this is not a nonnegligent explanation sufficient to avoid summary judgm~nt on liability; it is legal argument. i: The submission of an affirmation from an attorney who la~ks knowledge of the facts is insufficient to defeat this application. Lampkin v. Chan, 6:8 A.D.3d 727 (2d Dept. 200,9). Equally unavailing is defendants' argument that the application is premature as discovery has not completed. See Rungoo v. Leary, 110 J\.D.3d 781 (2d Dept. 2013 ). The mere hope or speculation that evidence sufficient to defeat a motion for summary judgment l~ may be uncovered during discovery is insufficient to deny:the motion. Id. The opposing parties must identify the information they hope to discovef. Id. Defendants have failed to provide an evidentiary basis that suggests discovery may lead to relevant evidence or that the plaintiff has exclusive knowledge of facts essential to oppbsing the motion. For the foregoing reasons, plaintiffs application f~~ summary judgment, pursuant to CPLR §3212, on the issue ofliability is granted. The issue of damages is reserved for trial. Counsel for both parties are directed to appear before this court at 9:30 a.m. on January 11, 2018 9:30 a.m. for a Compliance * .' Conference. [* 3] 3 of 4 INDEX NO. 610078/2016 FILED: NASSAU COUNTY CLERK 11/27/2017 NYSCEF DOC. NO. 23 RECEIVED NYSCEF: 11/28/2017 Any relief requested not specifically addressed herein is denied. This constitutes the Decision and Order of the court. Dated: November 21, 2017 Mineola, New York ENTERED ,, C NOV 2 7 2017 NASSAU COUNTY COUNTY CLERK'S OFFICE [* 4] 4 of 4

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