Sydnor v Westchester County

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Sydnor v Westchester County 2018 NY Slip Op 34121(U) July 31, 2018 Supreme Court, Westchester County Docket Number: Index No. 68352/2015 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 09:07 AM NYSCEF DOC. NO. 43 INDEX NO. 68352/2015 RECEIVED NYSCEF: 08/03/2018 commence the statutory statutory To commence time for for appeals appeals as of of right right time 5513(a]),you are (CPLR 5513(a]),you advised to serve serve a copy copy advised of this this order, order, with notice of with notice of entry, entry, upon upon all parties. parties. of SUPREME COURT COURT OF THE THE STATE STATE OF NEW NEW YORK SUPREME YORK WESTCHESTER COUNTY COUNTY WESTCHESTER PRESENT: HON. HON. SAM SAM D. WALKER WALKER , J.S.C. J.S.C. PRESENT: ______________________________________________________ ------~---------~-----x ------------------------------------------------------------ ---------. ----x I SHANNEN SYDNOR SYDNOR and JACQUETTA JACQUETTA SYDNOR, SYDNOR, SHANNEN Plaintiff, Plaintiff, ,-against.-against- DECISION & ORDER ORDER DECISION Index No. 68352/2015 68352/2015 Index Motion Sequence Sequence 2 Motion WESTCHESTER COUNTY, COUNTY, BURIM BURIM SYLAJ, SYLAJ, and WESTCHESTER LIBERTY LINES LINES TRANSIT, TRANSIT, INC., LIBERTY Defendants. Defendants. --------------------------------------------------------------------------x ----------------------------------------------------------~-----------------x The following following papers papers were considered in deciding deciding the the present present motion: motion: The were read and considered Notice of Motion/Affirmation Motion/Affirmation in Support/Exhibits Support/Exhibits A-D Notice A-D Affirmation Opposition/Exhibit A Affirmation in Opposition/Exhibit Reply Affirmation Reply Affirmation 1-6 7-8 9 The plaintiffs plaintiffs commenced commenced this this action action on October October 19, 2015, 2015, to recover recover monetary monetary The damages for for injuries injuries they they allegedly allegedly sustained sustained as a result result of a motor motor vehicle vehicle accident accident which which damages occurred on March March 3, 2015. 2015. occurred The plaintiffs plaintiffs now now file the instant instant motion motion for for an order order granting granting summary summary judgment The judgment against the the defendants defendants on the issue issue of liability: liability: The The plaintiff, plaintiff, Shannen Shannen Sydnor, Sydnor, states states that that against was driving driving her her vehicle vehicle with the plaintiff, plaintiff, Jacquetta Jacquetta Synor Synor as a passenger, passenger, she was she was stopped at a red light light on Nepperhan Nepperhan Avenue intersection on Lake Lake Avenue, Avenue, when when her stopped Avenue at the intersection vehicle was was hit from from behind behind by a bus owned owned by the defendant defendant Westchester Westchester County County and vehicle operated by the defendant Burim Sylaj, Sylaj, an employee employee of the defendant, defendant, Liberty Liberty Lines Lines operated defendant Burim Transit, Inc. The The plaintiff plaintiff states states that hear any any honking, honking, see see any any flashing flashing Transit, that she did not hear headlights or see hear any other other warning warning from from the defendant's defendant's vehicle. vehicle. headlights see or hear 1 of 4 [*FILED: 2] WESTCHESTER COUNTY CLERK 08/06/2018 09:07 AM NYSCEF DOC. NO. 43 INDEX NO. 68352/2015 RECEIVED NYSCEF: 08/03/2018 opposition, the the defendants defendants argue argue that that the motion motion for for summary summary judgment should In opposition, judgment should denied because because it is premature premature and submitted submitted prior prior to any any discovery, discovery, that that there there are be denied triable issues issues of fact fact as to how how the accident accident occurred, occurred, and that that the the emergency emergency doctrine, doctrine, triable comparative negligence negligence applies. applies. The The defendants defendants assert assert that that the emergency emergency doctrine doctrine and comparative applicable, because because as Burim Burim Sylaj was was approaching approaching the light light and applying applying the brakes brakes is applicable, there was a mechanical mechanical failure failure that that affected affected his ability ability to stop stop the bus to the bus, there completely and that that he had no previous previous warning warning of such such failure. failure. completely support of the motion, motion, the plaintiff plaintiff submits submits her affidavit, affidavit, an attorney's attorney's affirmation, affirmation, In support copies of the the pleadings. pleadings. The The defendants defendants submit submit Burim Burim Sylaj's Sylaj's affidavit affidavit and an and copies attorney's affirmation affirmation in opposition. opposition. attorney's Discussion Discussion A party party on a motion motion for for summary summary judgment must assemble assemble affirmative affirmative proof proof to judgment must establish his entitlement entitlement to judgment matter of law (see Zuckerman Zuckerman v City City of of N. Y., Y., 49 establish judgment as a matter NY2d 557(1980]). 557[1980]). NY2d Furthermore, the proponent proponent of a summary summary judgment motion must must judgment motion Furthermore, establish the absence absence of any material material issues issues of of fact fact (see Alvarez Prospect Hosp., Hosp., 68 Alvarez v Prospect establish [1986]). Only Only when when a showing showing of entitlement entitlement to judgment matter of of judgment as a matter NY2d 320, 324 [1986]). been made made must must the the opposing opposing party party set forth forth evidentiary evidentiary proof proof establishing establishing the law has been existence of a material material issue issue of of fact, (see Winegrad Winegrad v New New York Univ. Med. Ctr., 64 NY2d existence 851,853[1985]). 851, 853(1985]). Generally, a rear-end rear-end collision collision with a stopped stopped or stopping stopping vehicle vehicle creates creates a prima prima Generally, facie case case of negligence negligence with respect respect to the operator operator of the the rearmost rearmost vehicle vehicle (see Ahmad Ahmad facie Grimaldi, 40 AD3d Dept 2007]). 2007]). The The burden burden then then shifts shifts to the party party v Grimaldi, AD3d 786, 786 [2d Dept 2 2 of 4 [*FILED: 3] WESTCHESTER COUNTY CLERK 08/06/2018 09:07 AM NYSCEF DOC. NO. 43 INDEX NO. 68352/2015 RECEIVED NYSCEF: 08/03/2018 opposing the motion motion to come come forward adequate non-negligent non-negligent explanation explanation for for the opposing forward with with an adequate accident (Vavoulis (Vavoulis v Adler, 1154 [2d Dept Dept 2007]; 2007]; CPLR CPLR 3212[b]; see also also GTF GTF accident Adler, 43 AD3d AD3d 1154 3212[b]; see Marketing, Inc. v Colonial Colonial Aluminum NY2d 965 [1985]; [1985]; Zuckerman Zuckerman v City City Marketing, Aluminum Sales, Inc. , 66 NY2d of New New York, York, 49 NY2d NY2d 557 [1980]). [1980]). of nonnegligent explanation explanation may may include include evidence evidence of of a mechanical mechanical failure, failure, a "A nonnegligent sudden, unexplained unexplained stop stop of ofthe vehicle ahead, ahead, an unavoidable unavoidable skidding skidding on wet wet pavement, pavement, the vehicle sudden, other reasonable reasonable cause" cause" (see Binkowitz Binkowitz v Kolb, 135 AD3d AD3d 884 [2d Dept Dept 2016]). or any other 2016]). "In instances where where the operator operator of the moving moving vehicle vehicle alleges alleges that that the the rear-end rear-end collision collision was was instances caused by brake brake failure, failure, the operator operator must must present present evidence evidence demonstrating demonstrating that that the the brake brake caused problem was unanticipated, unanticipated, and that that reasonable reasonable care care had been been exercised exercised to keep keep the problem Holl/is v Kellog, Kellog, 306 AD2d 244 [2d Dept brakes brakes in good good working working order" order" (see HolI/is AD2d 244 Dept 2003]). 2003]). plaintiff established established a prima prima facie facie case case of negligence negligence by presenting presenting Here, the plaintiff evidence, yvhich yvhich was was corroborated Burim Sylaj's Sylaj's affidavit, affidavit, that that the the defendants' vehicle corroborated by Burim defendants' vehicle evidence, struck the the rear of of the the plaintiffs' plaintiffs' vehicle, vehicle, while while the plaintiffs plaintiffs were were stopped stopped at a red light. struck Although, the defendants defendants assert assert that that the collision collision was due due to brake brake failure, they failed failed to Although, failure, they submit admissible admissible evidence evidence to rebut rebut the inference inference of negligence. negligence. Burim Burim Sylaj's Sylaj's affidavit affidavit submit states that that he had no previous previous warning warning of the brake brake failure, failure, however, however, the the defendants defendants did states submit any evidence evidence to show show that that they they exercised exercised reasonable reasonable care brakes not submit care to keep the brakes good working working order. order. in good Further, the the need need to conduct conduct discovery discovery does does not warrant warrant denial denial of the motion, motion, since Further, since Shannen Sydnor Sydnor and Bu Burim Sylaj, who who submitted submitted affidavits, affidavits, both have have personal personal knowledge knowledge Shannen rim Sylaj, the relevant relevant facts facts of of the the accident accident ((see Niyazov v Bradford, Bradford, 13 AD3d AD 3d 501 [2d Dept Dept 20041). 2004]). of the see Niyazov 3 3 of 4 [*FILED: 4] WESTCHESTER COUNTY CLERK 08/06/2018 09:07 AM NYSCEF DOC. NO. 43 INDEX NO. 68352/2015 RECEIVED NYSCEF: 08/03/2018 Therefore, based on all the foregoing, foregoing, the motion is GRANTED. GRANTED. Therefore, determination of whether whether the plaintiffs plaintiffs sustained sustained a serious serious injury injury within the . The determination Insurance Law statute statute remains outstanding. outstanding. Th~ The parties are directed directed to meaning of the Insurance appear before the Preliminary Preliminary Conference Conference Part on August August 27, 2018 at 9:30 a.m. in appear Courtroom 811. Courtroom foregoing constitutes constitutes the Opinion, Decision and Order Order of the Court. The foregoing White Plains, New York Dated: White July "37, 2018 ~JL.~ WALKER, J.S.C. HON. SAM D. WALKER, 4 4 of 4

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