Faulknor v Gina's Trucking Inc.

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Faulknor v Gina's Trucking Inc. 2017 NY Slip Op 33472(U) March 7, 2017 Supreme Court, Westchester County Docket Number: Index No. 62389/2015 Judge: Charles D. Wood 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 03/07/2017 03:07 PM NYSCEF DOC. NO. 73 INDEX NO. 62389/2015 RECEIVED NYSCEF: 03/07/2017 To commence commence the statutory statutory time time period period for appeals appeals right (CPLR (CPLR 55 5513[a)), you are advised advised to serve serve a copy copy ofright 13[a]), you as of of this order, order, with notice notice of entry, upon upon all parties. parties. of of entry, SUPREME COURT COURT OF THE THE ST ATE OF NEW NEW YORK YORK SUPREME STATE COUNTY OF WESTCHESTER WESTCHESTER COUNTY ---------------------------------------------------------------------x ---------------------------------------------------------------------x DIANA FAULKNOR, FAULKNOR, DIANA Plaintiff, Plaintiff, -against-againstDECISION DECISION & ORDER ORDER Index No. 62389/2015 62389/2015 Index Sequence No. No.22 Sequence GINA'S TRUCKING RORY J. JENKINS, JENKINS, GINA'S TRUCKING INC. and RORY COUNTY OF WESTCHESTER, WESTCHESTER, VILLAGE VILLAGE OF COUNTY CROTON ON HUDSON, HUDSON, AND AND TOWN TOWN OF CROTON CORTLANDT, CO:R.TLANDT, Defendants. Defendants. -------------------------------------------------------------------x -------------------------------------------------------------------x WOOD,J. WOOD,J. following papers papers were read and considered considered in connection connection with with moving moving defendant defendant The following Town of of Cortlandt's Cortlandt's ("Town") ("Town") motion motion for summary summary judgment: judgment: Town Town's Notice of Motion, Motion, Counsel's Counsel's Affirmation, Affirmation, Exhibits. Exhibits. Town's Notice of Plaintiff's Counsel's Affirmation in Opposition, Opposition, Exhibits. Exhibits. Plaintiff's Counsel's Affirmation Town's Counsel's Counsel's Reply Reply Affirmation. Town's Affirmation. action arises arises from a motor motor vehicle vehicle accident which occurred occurred on July 7, 2015, 2015, This action accident which wherein plaintiff/pedestrian plaintiff/pedestrian was hit by defendant defendant Gina Gina Trucking Trucking Inc. tractor tractor trailer trailer as she wherein attempted to cross cross the entrance entrance ramp of South at its intersection intersection with with Croton Croton Point Point of Route 9 South attempted Avenue County of of Westchester. Westchester. Plaintiff Plaintiff opposes opposes the motion. motion. A venue in the County foregoing papers, papers, the motion motion is decided follows: decided as follows: Upon the foregoing [* 1] 1 of 5 FILED: WESTCHESTER COUNTY CLERK 03/07/2017 03:07 PM NYSCEF DOC. NO. 73 INDEX NO. 62389/2015 RECEIVED NYSCEF: 03/07/2017 It is well settled settled that a proponent proponent of of a summary motion must must make "prima summary judgment judgment motion make a "prima showing of entitlement to judgment matter of of law, law, tendering tendering sufficient sufficient evidence evidence to facie showing of entitlement judgment as a matter demonstrate NY2d demonstrate the absence absence of of any material material issues issues of of fact" fact" (Alvarez (Alvarez v Prospect Prospect Hospital, Hospital, 68 NY2d 320, 324 [1986]; [1986]; Orange Orange County-Poughkeepsie County-Poughkeepsie Ltd. Ltd. Partnership Partnership v Bonte, Bonte, 37 AD3d AD3d 684, 684, 686ailure to make 687 [2d Dept Dept 2007] 2007];; Rea v Gallagher, Gallagher, 31 AD3d AD3d 731 [2d Dept Dept 2007]). 2007]). F Failure make such a prima facie showing requires a denial of the motion, motion, regardless regardless of of the sufficiency of the motion motion sufficiency of prima showing requires denial of papers (Winegrad (Winegrad v New New York York University University Medical Medical Center, Center, 64 NY2d [1986];; papers NY2d 851, 853 [1986] Jakabovics v Rosenberg. Rosenberg, 49 AD3d AD3d 695 [2d Dept 2008]; 2008]; Menzel Menzel v Plotkin, Plotkin, 202 AD2d AD2d 558, 558, 558Jakabovics Once the movant movant has met this threshold threshold burden, party must 559 [2d Dept 1994]). Once burden, the opposing opposing party must present the existence existence of of triable triable issues issues of (Zuckerman v New York, 49 NY2d NY2d 557, present of fact (Zuckerman New York, 557, 562 [1980];; Khan Khan v Nelson, Nelson, 68 AD3d AD3d 1062 [2d Dept 2009]). 2009]). In deciding motion for summary summary deciding a motion [1980] judgment, court is "required "required to view view the evidence evidence presented light most most favorable favorable to presented in the light judgment, the court opposing the motion draw every reasonable reasonable inference inference from the pleadings pleadings and the party opposing motion and to draw proof submitted of the opponent opponent to the motion' motion" (Yelder (Yelder v Walters, Walters, 64 the proof submitted by the parties parties in favor of Dept 2009]; 2009]; Nicklas Realty Corp., Corp., 305 AD2d AD2d 385, Dept AD3d 762, 767 [2d Dept Nicklas v Tedlen Tedlen Realty 385, 386 [2d Dept 2003]). Summary Summary judgment drastic remedy remedy and should should not be granted where there there is any granted where 2003]). judgment is a drastic doubt as to existence existence of of a triable triable issue (Alvarez (Alvarez v. Prospect Prospect Hospital, Hospital, 68 NY2d 320,324 doubt NY2d 320,324 [1986]). According to the complaint, complaint, the Town' Town'ss culpability culpability for the subject subject accident accident includes, includes, According there was a lack of of painted painted crosswalks crosswalks at said intersection; intersection; there there were were no traffic traffic control that there control devices controlling controlling traffic entering onto Route 9 South; South; and/or traffic control control devices devices devices traffic entering and/or no traffic controlling pedestrian traffic traffic crossing intersection; and failure failure to add proper proper signs signs warning warning controlling pedestrian crossing said intersection; motorists and pedestrian pedestrian traffic. traffic. The Town Town served an Answer Answer with with Cross-Claim Cross-Claim to the motorists 2 [* 2] 2 of 5 ---------------------------------------------INDEX NO. 62389/2015 FILED: WESTCHESTER COUNTY CLERK 03/07/2017 03:07 PM NYSCEF DOC. NO. 73 RECEIVED NYSCEF: 03/07/2017 complaint. The Town Town also asserted asserted an Answer Answer to the Cross-Claim Cross-Claim of of the County County of complaint. of Westchester. Westchester. support of of the Town's Town's motion, motion, it offers offers the Affidavit Affidavit of of Jeff Jeff Coleman, Coleman, Director Director of of the In support Department of of Environmental Environmental Services Services for the Town, which includes includes highways. highways. Coleman Coleman Department Town, which attests familiar with with the roads roads and properties and/or maintained maintained by the properties owned owned and/or attests that he is fully familiar Coleman asserts asserts that: that: "The "The location location of of the accident accident as described plaintiff and described by the plaintiff Town. Coleman particularly the Route Route 9 South South Entrance Entrance Ramp Ramp at or near near the intersection intersection of of Croton Croton Point Point more particularly Avenue is not owned, owned, controlled, controlled, or maintained maintained by the town town of of Cortlandt". Cortlandt". Counsel Counsel for the Avenue Town proffers proffers that this is confirmed confirmed by the GIS map of of County County and State State roads roads found on the Town Westchester County website (Pages (Pages from this site are attached Exhibit I). Counsel Counsel continues continues Westchester County website attached as Exhibit Croton Avenue Avenue is depicted depicted in blue indicating indicating that it is a County County Road. Road. Route Route 9, including including that Croton depicted in red indicating indicating that that it is an interstate, interstate, state state road road or parkway. Counsel the ramps are depicted parkway. Counsel Municipal Agreement Agreement between between the County County of of Westchester Westchester and the Village Village of of offers an Inter Municipal Croton showing showing that that the roadway roadway at issue is neither neither owned owned nor nor controlled controlled by the Town. Town. Croton Based upon the foregoing, foregoing, the evidence evidence submitted submitted by the Town Town established established that that the Based own or control control the roadway roadway at issue. T~us, Town has demonstrated demonstrated a prima prima Town did not own T~us, the Town entitlement to summary summary judgment. Generally "a municipality municipality cannot cannot be held liable liable for the judgment. Generally facie entitlement maintain in a reasonably reasonably safe condition condition a road it does does not own own or control control unless unless it failure to maintain affirmatively undertakes undertakes such such a duty" duty" (Carlo (Carlo v Town Town of of E. Fishkill, Fishkill, 19 AD3d AD3d 442, 442, 442-43 442-43 [2d affirmatively 2005]). Dept 2005]). Plaintiffs opposition opposition to the motion motion was insufficient insufficient to raise raise a triable triable issue issue of of fact as to Plaintiffs whether the Town Town assumed assumed control control of of the subject subject highway, highway, or affirmatively undertook a duty to whether affirmatively undertook maintain it. Furthermore, Furthermore, plaintiffs' plaintiffs' mere hope discovery might might lead to relevant relevant evidence evidence or maintain hope that discovery 3 [* 3] 3 of 5 FILED: WESTCHESTER COUNTY CLERK 03/07/2017 03:07 PM NYSCEF DOC. NO. 73 INDEX NO. 62389/2015 RECEIVED NYSCEF: 03/07/2017 essential to justify motion were were exclusively within the that the facts essential justify opposition opposition to the motion exclusively within knowledge and control control of movant, did not provide provide a basis denial of of the motion motion knowledge of the movant, basis for denial Town of of E. Fishkill, Fishkill, 19 AD3d other party party has submitted opposition to the AD3d at 443). No other submitted opposition (Carlo v Town instant motion. motion. instant matters not herein herein decided decided are denied. denied. This constitutes Decision and Order Order of All matters constitutes the Decision of the court. NOW, therefore, it is hereby hereby NOW, therefore, ORDERED, that that the motion motion by the defendant defendant Town Town of Cortlandt for summary summary judgment ORDERED, of Cortlandt judgment dismissing the complaint complaint and all cross claims asserted asserted against against it is granted; granted; and dismissing cross claims and it is further further ORDERED that that the Town Town shall serve a copy of of this this order order with with notice notice of upon the ORDERED of entry entry upon parties within within ten (10) of entry, entry, and file proof proof of of service service on NYSCEF parties (10) days of NYSCEF within within five (5) days of service; service; and it is further further of ORDERED, that that the remaining remaining parties parties are directed directed to appear ORDERED, appear on 1600, the Settlement ,,2017, 2017, at 9:15 A.M. in courtroom courtroom 1600, Settlement Conference Conference Westchester County County Courthouse, Courthouse, 111 Dr. Martin Martin Luther Luther King King Jr. Blvd., Blvd., White Part, Westchester White Plains, New York York 10601. 10601. Plains, March 7, 2017 2017 Dated: March White Plains, Plains, New York York White 4 [* 4] 4 of 5 FILED: WESTCHESTER COUNTY CLERK 03/07/2017 03:07 PM NYSCEF DOC. NO. 73 To: RECEIVED NYSCEF: 03/07/2017 Mallilo & Grossman, Grossman, Esqs. Mallilo Attorneys for Plaintiff Plaintiff Attorneys Blvd. 163-09 Northern Northern Blvd. Flushing, New New York York 11358 Flushing, Walsh John J. Walsh Hodges Walsh Walsh & Messemer, Messemer, LLP Hodges Attorneys for Defendants Defendants Attorneys Town of of Cortlandt Cortlandt Town Church Street-Suite Street-Suite 211 55 Church White Plains, Plains, New New York 10601 White Morris Duffy Duffy Alonso Alonso & Faley Faley Morris Attorneys Defendant Attorneys for Defendant Village of of Croton Croton Village Floor Rector Street, Street, 220dnd Floor Two Rector New York, New York 10006 New York, New York Syma B. Funt, Funt, Esq. Esq. Syma Robert F. Meehan Meehan Robert Westchester County Attorney Westchester County Attorney Attorneys for Defendant Defendant Attorneys County of of Westchester Westchester County Martine A Avenue 148 Martine venue White Plains, Plains, New New York 10601 White Leonard M. Cascone, Cascone, Esq Esq.. Leonard Cascone & Kluepfel, Kluepfel, LLP Cascone Attorney for Defendants Defendants Attorney Jenkins Rory J. Jenkins Gina'ss Trucking Trucking Inc Gina' Franklin Avenue, Avenue, Suite Suite 302 1399 Franklin Garden City, City, New New York York 11530 Garden 5 [* 5] INDEX NO. 62389/2015 5 of 5

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