DiBernardi v Estrella

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DiBernardi v Estrella 2018 NY Slip Op 34153(U) October 16, 2018 Supreme Court, Orange County Docket Number: Index No. EF008682/2017 Judge: Sandra B. Sciortino 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] ORANGE COUNTY CLERK 10/17/2018 11:59 AM INDEX NO. EF008682-2017 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 10/17/2018 To commence·the statutory iinie · for appeals as ofright (CPLR 5513 [a}), you are advised to serve a copy of this .order, with notice of entry, iipon all parties.. SUPREME COURT OF THE.STATE OF NEW YORK COUNTY OF ORANGE - - --- . -- ------- --------------- X PETERDiBERNARDlandROSEMARIE .DiBERNARDI, DECISION AND ORDER Plaintiffs, INDEXNO.: EF008682/2017 l\!Iotion Date: 8/20/18 Sequen_ce No. 1 -against- ELADIO ESTRELLA-' -- . Defendant. -- ----------------------------------------------------------- _· x SCIORT~NO, J. The following papers nµmbered 1 to 7 were considered ifl.. connection with plaintiff's applicat1on •for partial summary jt1dgment_on ·the ·issue ofliabi]ity: PAPERS - NUMBERED Notice ofMotiori/Affirmation (Owen)fAffidavit in Support/Exhibits 1-4 Affirmation in Opposition (Izzo)/Exhihits A-E Affirmation in Reply (Owen) 1-4 5-6 7 Background and Proccduralliisto11• This personal injury action _arises out of a motor vehicle accident that took place on November 1, 2016 on ROute 202 in the Towµ of Haverstraw, New York. Plaintiffs commenced this action by filing a Stirrinfons and Complaint (Exhi!Jif2) on <>r.about October 25, 2017. Defendant served a Verified Answerwith Affirmative Defenses on or l.lboutF'ebruary 6, 2018. (Exhibit.3) Plaintiffs assert that they are. entitled to suriunaryjudgmen t on liabiHty baseci on the rear-end coHision, which establishes'a priinafacie case of negligence on the part of defendant. ·Filed in Orange County 10/17/2018 12:00:00 AM $0.00 1 5 Bk:of 5127 Pg: 210 Index: # EF008682-2017 Clerk: SW l [*FILED: 2] ORANGE COUNTY CLERK 10/17/2018 11:59 AM NYSCEF DOC. NO. 22 INDEX NO. EF008682-2017 RECEIVED NYSCEF: 10/17/2018 Opposition In,opposition, defendant contends that plaintiffs.have .failed to ~stablish their primafacie entitlementto judgment. He argues the admissibtifty of plaintiffs own affidavit as welLas th~ certified police report. There are bona fide issues of fact regarding defendanCs liability and plaintiffs comparative negligence. in light ofthe fa.ct there' was ·a third vehicle, which has 'been ;neither namec_l as a party or yet deposed, involved inJhe accident Defendantargiles that there are. issues of fact regarding wheth<!r plai_ntiff' s conduct and/or ·the conduct of the third vehtcle contributed to the happening of the accident. This argu1I1ent is unclear as there is no affidavit from the defendant himself as 'to how the accident happened. Defend'1,Ijtalso contends. that summary. judgment is premature as discovery is still 6utstand1ng and there remain questions of factas to whet_her defeI1dant yvas properly served. The Court.has fully con~idered the:submissions. Discussion For the reasons which follow; plaintiffs' 111otion_is grant~d. "[A]n objection thanhe stirrimons and complaint ''.' wcis not properly served is waived if, having raised such an objection in a pleadi~g, the objecting party does riot move for judgment on that ground within sixty days af1<::r_ _serving the pleading." (Civ. Prac. Law & Rules §3211 [e]}Because the deferidahtdicihotfuoVe to dismiss the complaint for lclck of personal jurisdiction on the basis of improper service withiri.60 days of servfr1g his answer, he has waived the defense. (seeFederici v. Metropolislvight.Club,Jnc., 48A:D.3d 741,742 [2d Dept 2008]) Summaryjudgme nt is a drastic remedy and is appropriate only when tllere is a clear demonstration ofthe absenceofany triabldsstie of fact (Piccirillo v. Piccirillo, 156 AD2d 748 [2d 2 2 of 5 [*FILED: 3] ORANGE COUNTY CLERK 10/17/2018 11:59 AM NYSCEF DOC. NO. 22 INDEX NO. EF008682-2017 RECEIVED NYSCEF: 10/17/2018 Dept 1989], -citing Andre v. .Pomeroy, 35 NV2d 36 l .[1974]) The function of the Court on such a motion is issue finding, and not issue determination. (Sillman v. Twentieth Century,-f.ox Fi_lm Corp., 3 NY2d 395 [1957]) The Court is not to ·engage in the.weighing.of ev1dence; rather, the Court's function'.ls to determine whether "by no rational proce~s could the trier of facts find for the non"moving party." (Jastrzebskiv.. N. Shore Sch. Dist., 23'.2 .AD2d 677, 678 [2d Dept i 996]) The Court of Appeals has recently held that a plaintiff does not bear the: burden of establishing the absence of her own comparative negligence in order to obtain partial summary judgment in a comparative negligence case. (Rodrigi1ez v. City of New York,2018 NY Slip Op. 02287 [April 3, 2018]_). In Rodriguez, the Court ofAppeals reversed the finding of the Appellate Division~ FirstDeparfm ent_which affirmed a trial court's denial of plaintiffs motion for partial, summaryjudgment. The basis for denial was plaintiffsfail ure to make a.pi-imafacie showing that he was free of comparative negligence .. (See, Rodriguez v. City of Ne1v Yoi·k, I 42 AD3d 778 [1 st Dept 2016]) The Court of Appeals held that Article 14,-A of the Civ_il Practice Law_& Rules provides that co111parative .negligence does not bar recovery,_but cari act to diminish the m:nount of damages otherwise recoverable/ in the proportion of the claimant's culpable conduct.. Civ. Prac. Law & Rules § 1411 Moreover,section 1412,provides that such culpable conduct shall be ah'affirinative defense tobe pleaded and proved by theparty asserting the same.. The majority reasoned that placing the burden on the plaintiffto show an absence of comparative faµlt is iI19onsistentwith the language of sectionJ412. (2018 NY Slip Op. at 3) ''Comparative fault is not a defense to the cause ofactioh of negligence; .because it is not a defense to ariy element (duty, breach, qmsation) of plaintiffs prima fafie cause ofaction for negHgence ... but rather a d1min1shment of the amoµnt of damages;" (2018 J 3 of 5 I [*FILED: 4] ORANGE COUNTY CLERK 10/17/2018 11:59 AM NYSCEF DOC. NO. 22 INDEX NO. EF008682-2017 RECEIVED NYSCEF: 10/17/2018 NY Slip Op. at 4) Here,there is no dispute that plaintiffs' vehicle was rear-ended by defendimt's vehicle. The police accident report .sub1I1itted by plaintiff!> in. support of their motion for summaryjtidgtnerit contained a statement by the defendant that he did not kno':V what happened, but thathe collided with plaintiffs' vehicle. The police officer who prepared the report was acting within th~ scope of llis dutyin recording defendant's statement, and the statement lSa.dmissible as an admission of a party. (see Guevara v~ Zah_ara.kis, 303 A'.D~2d 555; 556 [2d Dept 2003]; Fe,·rara v. Poranski, 88 A.D.2d '904 [2d Dept 1982]) Additionally, the diagram and oiher, .entries in the · police accident report ,showing where the Vehicles struck each other and the position and path .of travel of each vehicle is admissible since the reportlrig officer could rriake these deteffi,1inatio11s himselfwhen he arrived on the scene. (Scottv kass. 48:Ab3d 785 [2d Dept 2008]) The affirmation of defendants' a.ttorrie)'submitted in opposition to the motion is c:l~void,of any evidentiary. value. (see, Zuckerman v City of Nelv Yoi·k, 49 NY2d 557 [1980] Defendant has failed to submit a,n affidavit by a person with knowledge of the facts. Defendant's stipplemehta.iy stateirierit annexed to the oppositio11 as Ex,hilJit E appears to b,e a written statement signed by the defendant but as it is not a sworn, notarized statement, it is inadmi~siible anc:l insufficient to defeat a motion for summary judgment. (see .Diaz v: Tumbiolo, 111 AD3d 877 [2d Dept 2013]) Nonetheless,iit confirms that the defendant struck plaintiff's ca.dn the'rear. Defendagts' contention'that plaintiffs are not entitled to summary judgment untila.fter the. comp!etion of discovery is without merit The mere hope that evidence to Support his defense Would be uncovered is insufficient to deny plaintiffs' motion for summary judgment. Counsel :failed to specify whaffacts necessary to oppose the motion \Vere uniquelyjn plaintiffs' possession. (see Miller 4 4 of 5 [*FILED: 5] ORANGE COUNTY CLERK 10/17/2018 11:59 AM NYSCEF DOC. NO. 22 INDEX NO. EF008682-2017 RECEIVED NYSCEF: 10/17/2018 v City ofNewYork,.277 AD2d363 T2d Dept 2000]) Qn the basis ofthe foregoing; plaintiffs' ~pplication for partial surnmaryjudgment on liability is granted. The parties shall appeaiTor preHmiriary coriference:onNovember 14, ~018 at 9:0ffa.m; This decision shali constitute the order of the Court. · Dated: October 16, 2018; Goshen, New York HON. SANDRAB.SCIORTINO, J.S.C. To: Counsel ofRecord vidNYSCEF 5 5 of 5

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