Gonzalez v Morris

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Gonzalez v Morris 2018 NY Slip Op 34175(U) December 3, 2018 Supreme Court, Rockland County Docket Number: Index No. 030362/2018 Judge: Sherri L. Eisenpress 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. INDEX NO. 030362/2018 FILED: ROCKLAND COUNTY CLERK 12/04/2018 12:50 PM NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 12/04/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ROCKLAND ---------- --------------------------------------------------x LESLIE GONZALEZ and MANUEL DELGADO, DECISION & ORDER Plaintiff, -againstIndex No.: 030362/2018 KYLE MORRIS, (Motion # 1) Defendant. ------------------------------------------------------------x Sherri L. Eisenpress, A.J.S.C. The following papers, numbered 1 through 5, were considered in connection with Plaintiff's Notice of Motion for an Order, pursuant to Civil Practice Law and Rules § 3212, granting partial summary judgment in favor of Plaintiffs on the issue of liability: NUMBERED PAPERS NOTICE OF MOTION/AFFIRMATION IN SUPPORT/AFFIDAVIT OF LESLIE GONZALEZ/EXHIBITS "A-D" 1-3 AFFIRMATION IN OPPOSITION 4 AFFIRMATION IN REPLY 5 Upon a careful and detailed review of the foregoing papers, the Court now rules as follows: This action was commenced by Plaintiffs on January 18, 2018, with the filing of the Summons and Complaint through the NYSCEF system. Issue was joined as to Defendant Kyle Morris with the filing of Defendants"Answer through the NYSCEF system on June 19, 2018. Plaintiff filed the instant motion for partial summary judgment as to liability on August 2, 2018 . This personal injury action arises from an accident which occurred on September 13, 2017, on Thiells Mt. Ivy Road, at its intersection with Brevoort Drive, in the Town of Haverstraw, Rockland County. It is undisputed that at the above stated time and place, Plaintiff Leslie Gonzalez' [* 1] 1 of 4 FILED: ROCKLAND COUNTY CLERK 12/04/2018 12:50 PM NYSCEF DOC. NO. 18 INDEX NO. 030362/2018 RECEIVED NYSCEF: 12/04/2018 and operat ed by Defen dant Kyle stoppe d vehicl e was struck in the rear by a vehicle owned in the Gonzalez vehicle. Plaint iff Morris. Plaint iff Manuel Delga rdo was a front seat passe nger ly one block prior to the subjec t Leslie Gonzalez alleges in her Affida vit that appro ximate bring her vehicle to a slow, gradua l interse ction, she turned her left turn signal on and began to order to make a left hand turn onto stop to wait for northb ound traffic on Theills Mt. Ivy Road in Brevo ort Drive. seconds while After being at a full, compl ete stop for appro ximate ly 10-15 t warnin g struck in the rear by waitin g to make her turn, her vehicle was sudde nly and withou to the summ ary judgm ent motion , the front of defen dant Kyle Morris ' vehicle. In oppos ition he argues that summ ary judgm ent Defen dant Kyle Morris does not submi t an Affida vit. Rather, must be denied because discov ery is not yet compl ete. ish his or her claim or The propo nent of a summ ary judgm ent motion must establ favor as a matte r of law, tender ing defense suffici ent to warra nt a court directi ng judgm ent in its of fact. Giuffri da v. Citiba nk Corp., suffici ent eviden ce to demon strate the lack of mater ial issues z v. Prospect Hosp., 68 N.Y.2d 320, et al., 100 N.Y.2d 72, 760 N.Y.S.2d 397 (2003 ), citing Alvare of the motion withou t regard 508 N.Y.S.2d 923 (1986 ). The failure to do so requir es a denial lez, 306 A.D.2d 250, 760 N.Y.S.2d to the suffici ency of the oppos ing papers. Lacaqnino v. Gonza made, the burden shifts to the 533 (2d Dept. 2003) . However, once such a showin g has been in admis sible form demon stratin g party oppos ing the motion to produce eviden tiary proof Leasing Corp., 95 N.Y.2d 124, 711 mater ial questi ons of fact requir ing trial. Gonzalez v. 98 Mag v. New York Univ. Med. Center, 64 N.Y.S.2d 131 (2000 ), citing Alvare z, supra, and Wineq rad N.Y.2d 851, 508 N.Y.S.2d 923 (1985 ). Mere conclusions or unsub stantia ted allega tions a triable issue. Gilber t Frank Corp. unsup ported by compe tent eviden ce are insuffi cient to raise ); Zucke rman v. City of New York, v. Federal Ins. Co., 70 N.Y.2d 966, 525 N.Y.S.2d 793 (1988 Court of Appeals in Rodriquez v. 49 N.Y.2d 557 (1980 ), 427 N.Y.S.2d 595. Most recent ly, the ), has held that "[t]o be entitle d City of New York, 31 N.Y.3d 312, 2018 N.Y.Sllp Op 02287 (2018 burden of establ ishing a prima to partia l summ ary judgm ent, a plaint iff does not bear the double 2 [* 2] 2 of 4 FILED: ROCKLAND COUNTY CLERK 12/04/2018 12:50 PM NYSCEF DOC. NO. 18 INDEX NO. 030362/2018 RECEIVED NYSCEF: 12/04/2018 -. facie case of defendant's liability and the absence of his or her own comparative fault." It is well-settled that a rear-end collision with a stopped or stopping vehicle creates a prima facie case of liability with respect to the operator of the moving vehicle, unless the operator of the moving vehicle can come forward with an adequate, non-negligent explanation for the accident. See Smith v. Seskin, 49 A.D.3d 628, 854 N.Y.S.2d 420 (2d Dept. 2008); Harris v. Ryder, 292 A.D.2d 499, 739 N.Y.S.2d 195 (2d Dept. 2002)). Further, when the driver of an automobile approaches another from the rear, he or she is bound to maintain a reasonably safe rate of speed and control over his or her vehicle, and to exercise reasonable care to avoid colliding with the other vehicle. VTL § 1129(a) ("The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon the condition of the highway."); Taing v. Drewery, 100 A.D.3d 740, 954 N.Y.S.2d 175 (2d Dept. 2012). Drivers must maintain safe distances between their cars and cars in front of them and this rule imposes on them a duty to be aware of traffic conditions, including vehicle stoppages. Johnson v. Phillips, 261 A.D.2d 269, 271, 690 N.Y.S.2d 545 (1 st Dept. 1999). In the instant matter, Plaintiffs have met their burden upon summary judgment since their vehicle was at a complete stop when it was struck in the rear by Defendant's vehicle. Defendant, who did not submit an affidavit, has failed to come forward with a non-negligent explanation for the rear-end collision and Plaintiffs are entitled to a grant of summary judgment as to liability in their favor as against Defendant. There is no merit to Defendant's argument that the motion should be denied on the ground that discovery has not yet taken place. The party asserting such argument must demonstrate that additional discovery might lead to relevant evidence or that the facts essential to oppose the motion are exclusively within the knowledge and control of the movant. See Emil Norsic & Son, Inc. V. LP. Transp. Inc., 30 A.D.3d 368, 815 N.Y.S.2d 736 (2d Dept. 2006); Rodriquez v. Farrell, 115 A.D.3d 929, 983 N.Y.S.2d 68 (2d Dept. 2014). "The mere hope or speculation that evidence sufficient to defeat a motion for summary judgment may be uncovered 3 [* 3] 3 of 4 INDEX NO. 030362/2018 FILED: ROCKLAND COUNTY CLERK 12/04/2018 12:50 PM NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 12/04/2018 during the discovery process is insufficient to deny the motion." Figueroa v. MTLR Corp., 157 A.D.3d 861, 69 N.Y.S.3d 359 (2d Dept. 2018). Here, Defendant's contention that the Plaintiffs' motion is premature because Plaintiffs have not yet been deposed, does not ~stablish what information the Defendant hopes to discover at the Plaintiffs' depositions that would relieve him of liability in this case. See ca;as-Romero v. Ward, 106 A.D.3d 850, 965 N.Y.S.2d 559, 562 (2d Dept. 2013). Lastly, a compliance conference is already scheduled for February 4, 2018. This Court expects that all discovery on the issue of damages will be completed by that date including Plaintiffs' examinations before trial as to damages and all defense medical examinations. Plaintiffs will be expected to file their Note of Issue and Certificate of Readiness by that date. Accordingly, it is hereby ORDERED that Plaintiffs' Notice of Motion for Summary Judgment on the issue of liability is GRANTED in its entirety; and it is further ORDERED that counsel for the parties shall appear before the undersigned for a compliance conference on MONDAY, FEBRUARY 4, 2019, at 9:45 a.m. The foregoing constitutes the Decision and Order of this Court on Motion # 1. Dated: New City, New York December 3, 2018 To: All parties via NYSCEF 4 [* 4] 4 of 4

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