Hamdan v Babcock

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Hamdan v Babcock 2017 NY Slip Op 33485(U) July 31, 2017 Supreme Court, Westchester County Docket Number: Index No. 64086/2015 Judge: Lawrence H. Ecker 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 08/01/2017 02:13 PM NYSCEF DOC. NO. 70 INDEX NO. 64086/2015 RECEIVED NYSCEF: 08/01/2017 To commence commence the statutory statutory time time for for appeals appeals as of of right right (CPLR 5513[a)), 5513[a]), you are advised advised to serve serve a copy copy of with notice of this this order, order, with notice of of entry, entry, upon upon all parties. parties. SUPREME COURT STATE OF NEW YORK SUPREME COURT OF THE THE STATE NEW YORK COUNTY WESTCHESTER COUNTY OF WESTCHESTER -------------------------------------------------------------------------X -------------------------------------------------------------------------)( AHMED ALKYAM AHMAD, AHMAD, AHMED HAMDAN HAMDAN and ALKYAM INDE)( NO. 64086/2015 INDEX 64086/2015 Plaintiffs, Plaintiffs, DECISION/ORDER DECISION/ORDER -against-againstSubmission Date: 5/17/17 Submission Date: 5/17/17 Motion Seqs. Motion Seqs. 2, 3 CHARLES J. BABCOCK, BABCOCK, MATTHEW MATTHEW P. P. PAPAGEORGE PAPAGEORGE CHARLES and KION P. P. PAPAGEORGE, PAPAGEORGE, Defendants. Defendants. --------------------------------------------------------------------------X --------------------------------------------------------------------------)( ECKER, J.·• ECKER, J. The following papers numbered numbered 1 through motions of The following papers through 20 were were read on the motions MATTHEW P. PAPAGEORGE PAPAGEORGE and KION P. P. PAPAGEORGE PAPAGEORGE 11 ("Papageorge" MATTHEW ("Papageorge" or "defendant") [Mot. Seq. 2], made made pursuant pursuant to CPLR "defendant") CPLR 3212, seeking seeking summary summary judgment judgment dismissing dismissing the complaint complaint and all cross-claims cross-claims against against them, them, and on the cross-motion cross-motion of AHMED HAMDAN and ALKYAM made pursuant pursuant to AHMED HAMDAN ALKYAM AHMAD AHMAD ("plaintiff") ("plaintiff") 22 [Mot. Seq. 3], made CPLR 3212, seeking seeking summary issue of liability liability as against CPLR summary judgment judgment on the issue against defendant defendant CHARLES J. BABCOCK BABCOCK ("Babcock"), CHARLES ("Babcock"), or, in the alternative, alternative, in opposition opposition to the Papageorge's motion: motion: Papageorge's PAPERS PAPERS Notice of Motion, Motion, Affirmation, Exhibits A-I Notice Affirmation, Exhibits NUMBERED NUMBERED 11 1 - 11 Co-defendant Matthew Matthew P. P. Papageorge Papageorge was the driver Co-defendant driver of the vehicle. vehicle. Codefendant Kion P. Papageorge Papageorge was the owner owner of of the vehicle. vehicle. For the the purposes purposes of this this defendant Decision /Order, IOrder, references references to "Papageorge" "Papageorge" are to Matthew Matthew Papageorge, Papageorge, unless unless Decision otherwise · otherwise indicated. indicated. 1 I Co-plaintiff Ahmed Ahmed Hamdan Hamdan was was the driver/operator, driverloperator, and co-plaintiff co-plaintiff Alkyam Alkyam Co-plaintiff Ahmad was was the passenger passenger in the the vehicle. vehicle. For the purposes purposes of of this this Decision Decision /Order, IOrder, Ahmad references to "plaintiff' "plaintiff' are to Ahmed Ahmed Hamdan, Hamdan, unless unless otherwise otherwise indicated. indicated. references 22 -1- [* 1] 1 of 5 FILED: WESTCHESTER COUNTY CLERK 08/01/2017 02:13 PM NYSCEF DOC. NO. 70 INDEX NO. 64086/2015 RECEIVED NYSCEF: 08/01/2017 Notice of Cross-Motion, Cross-Motion, Affirmation, Affirmation, Exhibits Exhibits 1-4 Notice Affirmation in Opposition, Opposition, Exhibits Exhibits A-B A-B Affirmation 12-17 12 - 17 18 - 20 the foregoing foregoing papers, papers, the court court determines determines as follows: follows: Upon the Plaintiff alleges alleges he sustained sustained serious serious injuries injuries as a result result of of a motor motor vehicle vehicle Plaintiff accident that that occurred occurred in Yonkers, Yonkers, New New York York on February February 20, 2015. 2015. Plaintiff Plaintiff had exited exited accident New York York State State Thruway/1-87 Thruway/l-87 southbound southbound at Exit 4/Central 4/Central Park Park Avenue. Avenue. His the New vehicle was in a line of of traffic traffic awaiting awaiting the traffic traffic signal signal ahead ahead to change change to green green when when vehicle vehicle was was struck struck in the the rear rear by the vehicle vehicle operated operated by Babcock. Babcock. This This impact impact his vehicle caused plaintiff's plaintiff's vehicle vehicle to collide collide with the vehicle vehicle operated operated by Papageorge Papageorge which which was was caused immediately in front front of of him. By Decision/Order, Decision/Order, dated dated March March 7, 2017 2017 [Mot [Mot Seq. 1], the immediately court granted granted plaintiff's plaintiff's unopposed unopposed motion, motion, made made pursuant pursuant to CPLR CPLR 3212, 3212, dismissing dismissing court Babcock's counterclaim counterclaim as against against plaintiff. plaintiff. The The court court found found plaintiff plaintiff had established established his Babcock's judgment as a matter prima prima facie facie entitlement entitlement to judgment matter of law in this this multi-car, multi-car, chain chain reaction, reaction, rear-end collision collision by demonstrating demonstrating that that his vehicle vehicle was propelled forward forward into the the rear-end was propelled Papageorge vehicle vehicle after after his vehicle vehicle was struck in the the rear rear by Babcock's Babcock's vehicle, vehicle, and Papageorge was struck that plaintiff plaintiff was fault in the happening happening of the the accident. accident. Wooldridge-Solano Wooldridge-Solano v that was not at fault AD3d 698 698 [2d Dept Dept 2016]; 2016]; Niosi Niosi v Jones, Jones, 133 AD3d AD3d 578 [2d Dept Dept 2015]. 2015]. Dick, 143 AD3d time of of the the accident, accident, Babcock Babcock was cited for for VTL VTL § ~ 1129(a) 1129(a) ["Following ["Following too At the time closely"), a traffic traffic infraction, infraction, to which which he later later pied pled guilty. guilty. closely"], Papageorge moves moves for for an order order granting granting summary summary judgment dismissing the Papageorge judgment and dismissing complaint and all cross-claims cross-claims against against him. Plaintiff Plaintiff cross-moves cross-moves for for summary summary complaint judgment issue of of liability liability as against against Babcock, Babcock, or in the alternative, alternative, in opposition opposition judgment on the issue Papageorge's motion. motion. Babcock Babcock opposes opposes both motions. motions. to the Papageorge's opposition to the motions, motions, Babcock Babcock argues argues that that summary summary judgment In opposition judgment is inappropriate as there there are non negligent negligent explanations explanations for for the the cause cause of of the the accident. accident. inappropriate Babcock avers avers the the Papageorge Papageorge drove drove around around his car car and plaintiff's plaintiff's vehicle vehicle before before Babcock cutting off off plaintiff's plaintiff's vehicle vehicle forcing forcing plaintiff plaintiff and Babcock Babcock to suddenly suddenly brake brake and collide. collide. cutting This claim claim is supported supported by Babcock's Babcock's deposition deposition testimony, testimony, and by the the affidavit affidavit of of Ellen This Kleinelp, a friend friend of Babcock's Babcock's and a witness witness to the the accident, accident, who who happened happened to be J. Kleinelp, driver of of the car immediately immediately behind behind Babcock's Babcock's car car at the time time of the the accident. accident. the driver Babcock also avers avers that that ice or snow snow on the exit ramp may may have have caused caused the the accident. accident. In Babcock support of this this argument, argument, Babcock Babcock submits submits the affidavit affidavit of of Craig Craig Babcock, Babcock, his son, who who support training in tactical tactical driving driving and criminal criminal investigation, investigation, and arrived arrived at the scene scene of of the has training accident 10-20 10-20 minutes minutes following following the accident. accident. This This argument, argument, however, however, is belied belied by accident Babcock's own testimony testimony in which which he stated stated "No, not that that I recall" recall" when when asked asked if there there Babcock's snow on the ground. ground. was snow The moving moving party party is entitled entitled to summary summary judgment only if it tenders tenders evidence evidence judgment only The sufficient to eliminate eliminate all material material issues issues of fact fact from from the case. Winegrad Winegrad v New New York sufficient University Medical Medical Center, Center, 64 NY2d 851, 853 [1985]; [1985); Zuckerman Zuckerman v City City of of New New York, University [1980). Failure Failure to make make such prima prima facie facie "showing "showing requires requires denial denial of of 49 NY2d 557, 562 [1980]. -2-2·- [* 2] 2 of 5 FILED: WESTCHESTER COUNTY CLERK 08/01/2017 02:13 PM NYSCEF DOC. NO. 70 INDEX NO. 64086/2015 RECEIVED NYSCEF: 08/01/2017 the motion, motion, regardless regardless of of the the sufficiency sufficiency of of the opposing opposing papers." papers." Pullman Pullman v Silverman, Silverman, the 1060 [2016]; [2016]; Winegrad Winegrad v New New York University University Medical Medical Center, Center, supra. supra. Put 28 NY3d 1060 another way, in order order to obtain obtain summary summary judgment, there must must be no triable triable issue issue of of another judgment, there fact presented presented ... ...even color of a triable triable issue issue of fact fact forecloses forecloses the the remedy. remedy. In re fact even the color Cuttitto Family Family Trust, 10 AD3d AD3d 656 656 [2d Dept Dept 2004], 2004], quoting quoting LNL LNL Constr. Constr. v MTF MTF Indus., Indus., Cuttitta AD2d 714, 715 715 [2d Dept Dept 1993]. 1993]. If a party party makes makes a prima prima facie facie showing showing of its 190 AD2d entitlement to summary summary judgment, the opposing opposing party party bears bears the the burden burden of of establishing establishing entitlement judgment, the existence of a triable triable issue issue of of fact. Zuckerman, Zuckerman, v City City of of New New York, supra; supra; Alvarez Alvarez v the existence Prospect Hosp., Hosp., supra. supra. Prospect court's function function on a motion motion for for summary summary judgment assess It is not the court's judgment to assess credibility. Chimbo Chimbo v Bolivar, Bolivar, 142 AD3d AD3d 944 [2d Dept Dept 2016]; 2016]; Garcia Garcia v Stewart, Stewart, 120 credibility. AD 3d 1298, 1298, 1299 1299 [2d Dept Dept 2014], 2014], or to engage engage in the the weighing weighing of evidence. evidence. Scott Scott v AD3d Long Is. Power Power Auth., AD2d 348 [2d Dept Dept 2002]. 2002]. "Resolving "Resolving questions questions of of credibility, credibility, Long Auth., 294 AD2d determining the accuracy accuracy of of witnesses, witnesses, and reconciling reconciling the testimony testimony of witnesses witnesses are determining trier of of fact. fact. Bykov Bykov v Brody, Brody, 150 AD3d AD3d 808 [2d Dept Dept 2017]; 2017]; Kahan Kahan v Spira, Spira, 88 for the trier AD3d 964 [2d Dept Dept 2011]. 2011]. Thus Thus a motion motion for for summary summary judgment "should not be granted granted AD3d judgment "should where the the facts facts are in dispute, dispute, where where conflicting conflicting inferences inferences may may be drawn drawn from from the where evidence, or where where there there are issues issues of of credibility" credibility" Ruiz Ruiz v Griffin, Griffin, 71 AD3d AD3d 1112, 1112, 1115 1115 evidence, Dept 201 2010]. 0]. [2d Dept Further, a defendant defendant moving moving for for summary summary judgment negligence action action has Further, judgment in a negligence burden of of establishing establishing prima prima facie, facie, that that he or she was was not not at fault fault in the the happening happening the burden subject accident. accident. Faust Faust v Gerde, 150 AD3d AD 3d 1204 1204 [2d Dept Dept 2017]; 2017]; Boulos Boulos v of the subject Lerner-Harrington, 124 AD3d AD3d 709 709 [2d Dept Dept 2015]. 2015]. A plaintiff plaintiff in a personal personal injury injury action action Lerner-Harrington, who moves moves for for summary summary judgment issue of of liability, liability, in a multiple multiple chain chain reaction reaction who judgment on the issue collision, has the burden burden of of establishing, establishing, prima prima facie, facie, both that that the the defendant defendant was was collision, negligent and that that he or she was was free free from comparative comparative fault. fault. McLaughlin McLaughlin v Lunn, Lunn, 137 negligent AD3d 757 [2d Dept Dept 2016]. 2016]. There There can be more more than than one one proximate proximate cause cause of of an AD3d accident, and generally, generally, it is for for the trier trier of of fact fact to determine determine the the issue issue of of proximate proximate accident, cause. Swinton Swinton v Kamiyama, Kamiyama, 147 AD3d AD 3d 803 [2d Dept Dept 2017]. 2017]. Further, Further, while while a violation violation cause. of Vehicle Vehicle and Traffic Traffic Law constitutes constitutes negligence negligence as a matter matter of of law, where where there there is of evidence that that a driver driver involved involved in an accident accident was was negligent negligent as a matter matter of of law, the evidence proponent of a summary summary judgment motion has the burden burden of of establishing establishing freedom freedom from from proponent judgment motion comparative negligence negligence as a matter matter of law. Desio Desio v Cerebral Cerebral Palsy Palsy Transport, Transport, Inc., 121 comparative AD3d 1033 [2d Dept Dept 2014]. 2014]. AD3d "When "When the driver driver of an automobile automobile approaches approaches another another automobile automobile from from the rear, bound to maintain maintain a reasonably reasonably safe safe rate of of speed speed and control control over over his [or he or she is bound vehicle, and to exercise exercise reasonable reasonable care care to avoid avoid colliding colliding with the other other vehicle." vehicle." her] vehicle, Gaeta v Carter, 6 AD3d AD 3d 576 [2d Dept Dept 2004]; 2004]; VTL VTL § ~ 1129[a]; 1129[a]; Comas-Bourne Comas-Bourne v City City of of Gaeta New York, 146 AD3d AD 3d 855 [2d Dept Dept 2017]; 2017]; Williams Williams v Spencer-Hall, Spencer-Hall, 113 AD3d AD3d 759, 759759New Dept 2014]. 2014]. "A rear-end rear-end collision collision with a stopped stopped or stopping stopping vehicle vehicle creates creates a 760 [2d Dept prima facie facie case case of of negligence negligence with respect respect to the operator operator of of the moving moving vehicle vehicle and prirna -3-3- [* 3] 3 of 5 FILED: WESTCHESTER COUNTY CLERK 08/01/2017 02:13 PM NYSCEF DOC. NO. 70 INDEX NO. 64086/2015 RECEIVED NYSCEF: 08/01/2017 imposes a duty duty on the operator operator to rebut rebut the inference inference of of negligence negligence by providing providing a imposes AD3d 639 [2d Dept non neg Iigent explanation collision," Pyo Pyo v Tribino, 141 AD3d Dept for the collision," explanation for nonnegligent 2014].]. "A nonnegligent 609 [2d Dept 2016], Dept 2014 non negligent AD3d 608, 609 Bang, 120 AD3d Delgado v Bang, quoting Delgado 2016], quoting the of the stop of explanation may include include a mechanical mechanical failure, sudden, unexplained unexplained stop failure, a sudden, explanation reasonable other pavement, vehicle ahead, unavoidable skidding on wet pavement, or any other reasonable wet skidding unavoidable an ahead, vehicle stops 2017]. Vehicle cause. Tumminello Tumminello v City City of of New New York, 148 AD3d1064 AD3d1 064 [2d Dept Dept 2017]. Vehicle stops cause. even if sudden which are foreseeable foreseeable under under the prevailing conditions, even sudden and traffic conditions, prevailing traffic which duty since he or she follows, since frequent, must be anticipated anticipated by the driver she is under under a duty who follows, driver who frequent, must the car ahead." to maintain maintain a safe safe distance distance between between his or her car car and the ahead." Theo v Vasquez, AD3d 554 [2d Dept Dept 2016], 2016], citing Brothers Brothers v Bartling, Bartling, 130 AD3d Dept 2015]. 2015]. AD3d 795 [2d Dept 136 AD3d of the stop of sudden stop the sudden that the vehicle that of a vehicle Further, a conclusory conclusory assertion assertion by the operator operator of Further, explanation. vehicle insufficient on its own as a nonnegligent nonnegligent explanation. accident is insufficient caused the accident vehicle caused 2013]. Gutierrez v Trillium, USA, LLC, 111 AD 3d 669 Dept 2013]. 669 [2d Dept AD3d Gutierrez judgment on the issue support of of the motion motion for summary issue of of liability, liability, summary judgment Here, in support which Babcock of Papageorge submitted, submitted, inter inter alia, the deposition testimony Babcock which provided provided deposition testimony Papageorge thus failed conflicting evidence evidence as to the the facts accident, and thus failed to surrounding the accident, facts surrounding conflicting that establish that that he was happening of the accident. accident. The The assertion assertion that fault in the happening was not at fault establish which on vehicle, causing Papageorge's vehicle suddenly cut off off plaintiff's plaintiff's vehicle, causing the accident, accident, which vehicle suddenly Papageorge's was though Babcock conclusory, is supported Kleinelp affidavit. affidavit. Even though Babcock was supported by the Kleinelp its own is conclusory, negligence constitutes which 1129(a), § ticketed and paid a fine for violation of VTL S 1129(a), which constitutes negligence VTL violation a fine ticketed that he is failed to meet as a matter matter of law, nevertheless, nevertheless, Papageorge Papageorge has failed meet his burden burden that other evidence free from comparative comparative fault. fault. Given Given the conflicting testimony and other evidence as to conflicting testimony free how and why why the accident accident occurred, occurred, the court finds that that Babcock Babcock has successfully successfully court finds how plaintiff explanation. As such, rebutted the inference negligence with a nonnegligent such, plaintiff nonnegligent explanation. inference of negligence rebutted fault in the was at fault who was eliminate all triable triable issues the happening happening of fact as to who issues of fact failed to eliminate has failed judgment on the issue accident. Accordingly, plaintiff's cross-motion cross-motion for summary summary judgment issue of Accordingly, plaintiff's the accident. liability as against against Babcock Babcock is denied. denied. liability specifically the parties of the contentions of The parties not specifically additional contentions considered the additional court has considered The court addressed was not addressed either party addressed herein. To the extent relief requested requested by either party was extent any relief addressed herein. Accordingly, it is hereby by the court, it is hereby hereby denied. denied. Accordingly, hereby ORDERED that that the motion motion of defendants MATTHEW P. PAPAGEORGE PAPAGEORGE and defendants MATTHEW ORDERED 3212, seeking CPLR to pursuant made PAPAGEORGE [Mot. Seq. 2], made pursuant CPLR 3212, seeking KION P. PAPAGEORGE summary judgment dismissing the complaint complaint and all cross-claims cross-claims against against them, them, is judgment dismissing summary further denied; denied; and it is further AHMAD ALKYAM AHMAD AHMED HAMDAN ORDERED that cross-motion of AHMED HAMDAN and ALKYAM that the cross-motion ORDERED the issue judgment on the summary judgment seeking summary made pursuant pursuant to CPLR CPLR 3212, 3212, seeking issue of [Mot. Seq. 3] made liability as against against defendant defendant CHARLES CHARLES J. BABCOCK BABCOCK ("Babcock"), ("Babcock"), and dismissing dismissing all liability further claims against against plaintiffs, plaintiffs, is denied; denied; and it is further claims -4-4- [* 4] 4 of 5 FILED: WESTCHESTER COUNTY CLERK 08/01/2017 02:13 PM NYSCEF DOC. NO. 70 INDEX NO. 64086/2015 RECEIVED NYSCEF: 08/01/2017 ORDERED that that the parties parties shall appear appear at the Settlement Settlement Conference Conference Part of the ORDERED Court, · Court, Room Room 1600, on September September 5, 2017 2017 at 9: 15 a.m. a.m .. · The foregoing foregoing constitutes constitutes the Decision/Order Decision/Order of the court. The Dated: White White Plains, Plains, New New York York. · Dated: July 31, 31,2017 2017 July EN T E R,. ENTER,· ECKER, J.S.C. J.S.C. .,CE CE H. ECKER, Appearances Appearances Office of Jesse Jesse Barab Barab Law Office Attorneys for Plaintiff Plaintiff Attorneys for NYSCEF Via NYSCEF Martyn, Toher, Toher, Martyn Martyn and Rossi Martyn, Attorneys Plaintiff on the Counterclaim Counterclaim . Attorneys for Plaintiff NYSCEF Via NYSCEF Office of Thomas Thomas K. Moore Moore Law Office Attorneys for Defendants Defendants Papageorge Papageorge Attorneys for NYSCEF Via NYSCEF Office of Stewart Stewart H. Friedman Friedman Law Office Attorneys for Defendant Defendant Babcock Babcock Attorneys for NYSCEF Via NYSCEF other parties parties appearing appearing by NYSCEF NYSCEF · To all other -5-5- [* 5] 5 of 5

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