Genao v Suquilanda

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Genao v Suquilanda 2018 NY Slip Op 34116(U) July 31, 2018 Supreme Court, Westchester County Docket Number: Index No. 54249/2017 Judge: Sam D. Walker 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: 1] WESTCHESTER COUNTY CLERK 08/06/2018 09:05 AM NYSCEF DOC. NO. 27 INDEX NO. 54249/2017 RECEIVED NYSCEF: 08/03/2018 To commence the statutory statutory commence the time time for for appeals appeals as of of right right (CPLR 5513[aJ), 5513[a]), you you are advised copy advised to serve serve a copy of this order, of this order, with with notice notice of of entry, entry, upon upon all parties. parties. SUPREME COURT OF THE STATE STA TE OF NEW YORK SUPREME COURT NEW YORK COUNTY WESTCHESTER COUNTY OF WESTCHESTER PRESENT: SAM D. WALKER, WALKER, J.S.C. PRESENT: HON. HON. SAMD. ----------------------------------------------------------------x ----------------------------------------------------------------x OLGA OLGA M. GENAO, GENAO, DECISION ORDER DECISION & ORDER Index 54249/2017 Index No. 54249/2017 Seq.# Seq. # 1 Plaintiff, Plaintiff, -against-againstJAVIER JAVIER A. SUQUILANDA SUQUILANDA and GUSTAVO GUSTAVO A. SUQUILANDA, SUQUILANDA, Defendant. Defendant. ------------------------------------------------------------------------------x ------------------------------------------------------------------------------x The were read on the motion for summary summary judgment judgment on the issue issue The following following papers papers were motion for of liability: liability: Notice Support/Exhibits A-H Notice of Motion/Affirmation Motion/Affirmation in Support/Exhibits 1-10 1-10 Factual Factual and Procedural Procedural Background Background The plaintiff, ("Genao"), commenced commenced this this action action on March The plaintiff, Olga Olga M. Genao Genao ("Genao"), March 30, 2017, allegedly sustained sustained in a motor vehicle accident. accident. 2017, to recover recover damages damages for for injuries injuries she allegedly motor vehicle Genao now now files files the present present motion motion for summary issue of liability, Genao summary judgment judgment on the issue of liability, arguing that York State State Vehicle Vehicle and Traffic Traffic Law§ arguing that the defendants defendants violated violated New New York Law ~ 1126(a) 1126(a) that she is entitled entitled to judgment because there issues of fact judgment because there are no issues fact in dispute. dispute. In and that support of the motion, deposition, a certified certified police support motion, Genao Genao relies upon her own deposition, police report, report, an attorney's affirmation, affirmation, and copies copies of the the pleadings pleadings and orders. orders. attorney's 11 1 of 4 [*FILED: 2] WESTCHESTER COUNTY CLERK 08/06/2018 09:05 AM NYSCEF DOC. NO. 27 INDEX NO. 54249/2017 RECEIVED NYSCEF: 08/03/2018 The tiff alleg es that ating her The plain plaintiff alleges that she was was oper operating her vehi vehicle Yonkers Avenue, whenn cle on Yonk ers Aven ue, whe the ndant cros le yello w line into the the defe defendant crosss over over a a doub double yellow the lane lane of of traffi trafficc in in whic whichh she she was was trave ling, strik traveling, striking vehicle. ing her vehi cle. Disc Discussion ussion A ing. for mary judgment judgment bear A party party mov moving for sum summary bearss the the initia initiall burd burden of affirm affirmatively en of atively dem onstrating its lement to sum mary judgment demonstrating its entit entitlement summary matter of law law (see (see Wine Winegrad judgment as a matt er of grad vv New New York York Univ Univ.. Med Med.. Ctr., Ctr., 64 64 NY2 NY2dd 851, 853 [198 [1985]; Prospect Hospital, 5]; (see Alvarez Alvarez vv Pros pect Hosp ital, 68 6]). To onstrate its entit 68 NY2 NY2dd 320, 320, 324 324 [198 [1986]). To dem demonstrate entitlement relief,f, the the mov moving party mus mustt lement to relie ing party com ard with entiary proo comee forw forward with evid evidentiary prooff that that esta establishes absence of any any mate material issuess blishes the abse nce of rial issue of onald vv Mau ss, 38 AD3 of fact, fact, (see (see McD McDonald Mauss, AD3dd 727, 728 [2d Dep Deptt 2007 2007]). Oncee the the mov moving ]). Onc ing party blished its lement to sum party has has esta established its prim primaa facie facie entit entitlement summary the burd burden shifts mary judgment, judgment, the en shift s to sing party entiary proo to the the oppo opposing party to to subm submitit evid evidentiary prooff in adm admissible form to to esta establish material issible form blish mate rial issue rez, 68 NY2 issuess of of fact fact (see (see Alva Alvarez, NY2dd at 324; Wine Winegrad, 64 NY2 NY2dd at at 853) 853).. grad, 64 New icle and fic law New York York Veh Vehicle and Traf Traffic Law § ~ 1126 1126(a), statess in perti pertinent part that: that: (a), state nent part Whe ial mark ings are in ptac Whenn offic official markings placee indic indicating thosee porti portions of any any high highway ating thos ons of way whe re over taking and ing or drivi where overtaking and pass passing driving the left left of such such mark markings would ng to the ings wou ld be cially haza rqous, no drive be espe especially hazardous, driverr of of a vehi vehicle proceeding alongg such such cle proc eedin·g alon high way shal highway shalll at at any any time time drive drive on the left left side side of of such such mark markings. New York York ings. New VTl § VTL ~ n2a 1128(a). (a) . . "A tion of cle and Traf fic law "A viola violation of the the Vehi Vehicle Traffic Law cons constitutes negligence as a a matt matter of titutes negl igence as er of law" ck vv New Sit Authority, Authority, 118 AD3 law" (Glu (Gluck New York York City City Tra!7 Transit AD3dd 667, 669 669 [2d [2d Dep Deptt 2014 2014]). ]). A A plain tiff drive led to judgment as a matt plaintiff driverr is is entit entitled to judgment matter the issue issue of of liabi liability if he he or or she she er of law on the lity if dem onstrates that imate caus demonstrates that the the sole sole prox proximate causee of an acci accident was the the defe defendant driver's dent was ndant drive r's viola tion of cle traffi violation of the the vehi vehicle trafficc law (see Gau Gause Martinez, 91 AD3 AD3dd 595, 595, 596 596 [2d [2d Dep Dept se v Mart inez, 91 t 2 2 of 4 [*FILED: 3] WESTCHESTER COUNTY CLERK 08/06/2018 09:05 AM NYSCEF DOC. NO. 27 INDEX NO. 54249/2017 RECEIVED NYSCEF: 08/03/2018 2012]). 2012]). Here, the plaintiff's plaintiff's evidence evidence demonstrates demonstrates his prima prima facie entitlement to judgment facie entitlement judgment as a matter matter of law (Gluck (Gluck v New New York City City Transit Transit Authority, @ 669). "Crossing Authority, 118 AD3d AD3d@ 669). "Crossing a double double yellow yellow line into the opposing opposing lane of traffic, traffic, in violation violation of Vehicle Vehicle and Traffic Traffic Law §9 1126(a), 1126(a), constitutes constitutes negligence negligence as a matter matter of law, unless unless justified emergency justified by an emergency situation not of of the the driver's driver's making" situation making" (see Gadon Gadon v Oliva, 294 Dept 2002]). 294 AD2d AD2d 397 397 [2d Dept 2002]). The The deposition deposition of of the plaintiff plaintiff and the certified. certified police police report report confirm confirm that that tt:ie tt)e defendants' vehicle entered the lane in which defendants' vehicle entered into the Genao's vehicle which Genao's vehicle was was traveling, traveling, in violation evidence submitted submitted by Genao violation of VTL VTL §§ 99 1126. The The evidence Genao establishes establishes entitlement entitlement to summary judgment as a matter summary judgment matter of law, thereby thereby shifting shifting the the burden burden to the defendants defendants to demonstrate factual issue demonstrate the existence existence of a factual issue requiring requiring a trial. (see (see Macauley Macauley v Elrac, Inc:.., Inc:.., 6 AD3d AD 3d 584, 585 [2d Dept Dept 2004]). 2004]). Here, the motion motion is unopposed. unopposed. Therefore, Therefore, this this Court Court finds finds that that Genao Genao has established established her her prima prima facie facie entitlement entitlement judgment as a matter the issue to judgment matter of of law on the issue of of liability liability through evidence submitted, submitted, through the the evidence showing showing the defendants' defendants' violation violation of the Vehicle Vehicle and Traffic Traffic Law, that that the defendants' defendants' negligence was the sole proximate negligence was proximate cause cause of the accident accident and that that Genao Genao is free free from from comparative fault. (Walker comparative fault. (Walker v Patrix Patrix Trucking Trucking N. Y. Y. Corp., 115 AD3d Dept AD3d 943, 944 [2d Dept 2014]; 2014]; Ducie Ducie v Ippolito, Ippolito, 95 AD3d AD3d 1067, 1068). Accordingly, based Accordingly, based upon the foregoing, foregoing, it is ORDERED that the the motion summary judgment ORDERED that motion for summary liability is GRANTED. GRANTED. judgment on liability The The parties parties are directed directed to appear appear in the Settlement Settlement Conference Conference Part in Courtroom Courtroom 1600 August 28, 2018 on the issue 1600 on August 28,2018 issue of damages. damages. 3 3 of 4 [*FILED: 4] WESTCHESTER COUNTY CLERK 08/06/2018 09:05 AM NYSCEF DOC. NO. 27 INDEX NO. 54249/2017 RECEIVED NYSCEF: 08/03/2018 The decision and order order of this this Court. Court. The foregoing foregoing constitutes constitutes the decision Dated: White Plains, York Dated: White Plains, New New York July 31,2018 31, 2018 CluA. ~ ~.~ ~- ~ . SAM SAM D. WALKER, WALKER, J.S.C. J.S.C. 4 4 of 4

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