Kim v Rosenblatt

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Kim v Rosenblatt 2018 NY Slip Op 34188(U) September 7, 2018 Supreme Court, Nassau County Docket Number: Index No. 608736/16 Judge: Denise L. Sher 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. 608736/2016 FILED: NASSAU COUNTY CLERK 09/10/2018 11:09 AM 0 NYSCEF DOC. NO. 87 RECEIVED NYSCEF: 09/10/2018 •.i, SHORT FORM ORDER SUPREME COURT OF T;HE STATE OF NEW YORK PRESENT: HON. DENISE L. SHER Acting Supreme Court Justice TRIAL/IAS PART 32 NASSAU COUNTY STEVE S. KIM and CHRISTINA KIM, Plaintiffs, - against:. Index No.: 608736/16 Motion Seq. No.: 02 Motion Date: 05/21/18 STEVEN ROSENBLATT, FREDY Y. MALDONADO and ARROW TRANSFER AND STORAGE, INC., Defendants. The following papers have been read on this motion: Papers Numbered 1 Notice of Motion. Affirmation and Exhibits Affirmation in Opposition and Exhibits Affirmation in Opposition and Exhibits Reply Affirmation 2 3 4 Upon the foregoing papers, it is ordered that the motion is decided as follows: Defendant Steven Rosenblatt ("Rosenblatt") moves, pursuant to CPLR §§ 3212 and 321 l(a)(7), for an order granting summary judgment dismissing the Verified Complaint as against him, and any and all cross-claims and counterclaims as against him. Plaintiffs oppose the motion. Defendants Fredy Y. Maldonado ("Maldonado") and Arrow Transfer and Storage, Inc. ("Arrow") also oppose the motion. The instant action arises from personal injuries allegedly sustained by plaintiffs as a result of a motor vehicle accident that occurred on June 23, 2016, at approximately 2:53 p.m., on [* 1] 1 of 9 FILED: NASSAU COUNTY CLERK 09/10/2018 11:09 AM NYSCEF DOC. NO. 87 INDEX NO. 608736/2016 RECEIVED NYSCEF: 09/10/2018 Hempstead Turnpike, at or near its intersection with Marvin Avenue, Uniondale, County of Nassau, State of New York. The subject accident involved three (3) vehicles - a 2016 Lexus, owned and operated by plaintiff, in which plaintiff Christina Kim was a passenger, a 2016 Ford, owned and operated by defendant Rosenblatt, and a 2007 Ford Van, owned by defendant Arrow and operated by defendant Maldonado. See Defendant Rosenblatt's Affirmation in Support Exhibit A. Plaintiffs commenced the action with the filing and service of a Summons and Verified Complaint on or about November 10, 2016. See Defendant Rosenblatt's Affirmation in Support Exhibit B. Issue was joined by defendants Maldonado and Arrow on or about December 15, 2016. See Defendant Rosenblatt's Affirmation in Support Exhibit C. Issue was joined by defendant Rosenblatt on or about December 27, 2016. See id. Defendant Rosenblatt submits his own Affidavit in support of the instant motion. s_ee Defendant Rosenblatt's Affirmation in Support Exhibit D. Defendant Rosenblatt states that, "[o]n June 23, 2016, I was the operator of a 2016 Ford, bearing license plate GGT9140. I was involved in an accident on that day. The accident took place on Hempstead Turnpike, in the Town of Hempstead. At the moment of impact, the vehicle I was operating had been fully stopped in traffic for 5 seconds. My vehicle was stopped because there was a vehicle ahead of mine that was also stopped. While my vehicle was stopped, it was struck in the rear and it was pushed into the vehicle ahead of me that was also stopped. I did not change lanes within one (I) mile of the accident and I did not make a sudden stop. There was nothing I could have done to avoid the happening of the accident." See id. Counsel for defendant Rosenblatt contends, in pertinent part, that, "ROSENBLATT's statement corroborates the statement on the police report which states the 'MVI was in a -2- [* 2] 2 of 9 INDEX NO. 608736/2016 FILED: NASSAU COUNTY CLERK 09/10/2018 11:09 AM NYSCEF DOC. NO. 87 RECEIVED NYSCEF: 09/10/2018 collision with MV2 causing MV2 to be in collision with MV3'." See Defendant Rosenblatt's Affirmation in Support Exhibits A and D. In support of the motion, defendant Rosenblatt submits the transcripts from plaintiff Steven S. Kim's Examination Before Trial ("EBT"), plaintiff Christina Kim's EBT, his own EBT and defendant Maldonado's EBT. See Defendant Rosenblatt's Affirmation in Support Exhibits E-H. Counsel for defendant Rosenblatt argues that "[t]he police report, defendant ROSENBLATT's affidavit and deposition testimony clearly indicate that ROSENBLATT's vehicle came to a complete stop before the vehicle operated by MALDONADO started a chain reaction ofrear-end collisions .... As mandated by VTL § 1129(a), which states that '[tJhe 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', MALDONADO was clearly under a duty to maintain a safe distance from the rear of the vehicle in front of him. No evidentiary facts tending to raise any triable issues exist concerning ROSENBLATT's alleged negligence; and therefore, he is entitled to summary judgment." In opposition to the motion, counsel for plaintiffs submits, in pertinent part, that, "according to the Plaintiff, STEVES. KIM's Affidavit, which was submitted with the Plaintiffs' Opposition to the Defendant, STEVEN ROSENBLATT's previous summary judgment motion dated April 24, 2017, the Plaintiff STEVE S. KIM, stated that he felt two impacts in the rear of his vehicle in this incident. The Co-Defendant FREDY Y. MALDONADO (hereinafter 'Co-Defendant'), who was the operator of the other vehicle that rear-ended the Defendant STEVEN ROSENBLA TT's vehicle, also submitted his Affidavit stating that the Defendant, -3- [* 3] 3 of 9 FILED: NASSAU COUNTY CLERK 09/10/2018 11:09 AM NYSCEF DOC. NO. 87 INDEX NO. 608736/2016 RECEIVED NYSCEF: 09/10/2018 STEVEN ROSENBLATT, rear-ended the Plaintiff, STEVES. KIM's vehicle before Mr. MALDONADO's vehicle ran into the Defendant STEVEN ROSENBLATT's vehicle." See Plaintiffs' Affirmation in Opposition Exhibits C and D. Counsel for plaintiffs further submits, in pertinent part, that "[t]he Plaintiff, STEVE S. KIM, testified [at his EBT] that he felt two separate heavy impacts from the rear of his vehicle and because of the heavy impacts, his vehicle was pushed forward for about one car length .... At his deposition, Mr. MALDONADO testified that he was operating a Ford van at the time of the incident. ... Mr. MALDONADO's vehicle was the third vehicle in the subject incident. Mr. MALDONADO testified that he saw that the Defendant's Ford SUV ran into the Plaintiffs Lexus, which was the leading vehicle in this incident, before Mr. MALDONADO's vehicle collided with the Defendant's Ford SUV .... After the Ford SUV stopped, Mr. MALDONADO tried to apply the brakes and swerve the vehicle but could not stop in time and avoid the collision with the rear of the Ford SUV .... Mr. MALDONADO's deposition testimony is clearly consistent with the Plaintiff, STEVES. KIM's statements, that there were two separate impacts to the Plaintiff's vehicle." See Defendant Rosenblatt's Affirmation in Support Exhibits E and H. Counsel for plaintiffs argues that, "in this action, there clearly are significant disputes about whether there were two separate impacts to the Plaintiffs' vehicle, whether the Defendant, STEVEN ROSENBLATT, made contact with the Plaintiffs' vehicle before the Co-Defendant FREDY Y. MALDONADO, made contact with the Defendanfs vehicle, and whether the other impact was caused by the Defendant and/or Co-Defendanfs negligence otherwise .... The fact that the Plaintiff, STEVE S. KIM, felt two impacts to the rear of his vehicle alone creates a material triable issue of fact, which precludes summary judgment. Because there is at least one conflict between the parties' sworn statements, it is clear that there is a triable issue of fact in the present case that requires (sic) to be submitted to (sic) jury. On this issue alone, the Defendant's motion -4- [* 4] 4 of 9 FILED: NASSAU COUNTY CLERK 09/10/2018 11:09 AM NYSCEF DOC. NO. 87 INDEX NO. 608736/2016 RECEIVED NYSCEF: 09/10/2018 must be denied.'' In further opposition to the motion, counsel for defendants Maldonado and Arrow argues, in pertinent part, that "the previous affidavit ofFREDY Y. MALDONADO contradicts the version of the accident provided by STEVEN ROSENBLATT and clearly raises a question of fact as to whether the vehicle operated by STEVEN ROSENBLATT struck the vehicle owned, operated and occupied by the KIM's (sic) prior to being struck by the vehicle operated by FREDY Y. MALDONADO .... Since the time of defendant Rosenblatt's initial motion seeking summary judgment, discovery continue (sic) forward in (sic) depositions of all parties were conducted. Importantly, ... , the plaintiff operator Mr. Steve S. Kim clearly indicated he felt two impacts to the rear of his vehicle which is indicative of Mr. Rosenblatt having struck the rear of Mr. Kim's vehicle before being struck by the defendant Arrow Transfer and Storage, lnc.'s vehicle propelling Mr. Rosenblatt's vehicle forward again striking the Kim's (sic) vehicle the second time." See Defendants Maldonado and Arrow's Affirmation in Opposition Exhibits A and B. It is well settled that the proponent of a motion for summary judgment must make a primafacie showing of entitlement to judgment as a matter of law by providing sufficient evidence to demonstrate the absence of material issues of fact. See Sillman v. Twentieth Century- Fox Film Corp., 3 N.Y.2d 395, 165 N.Y.S.2d 498 (1957);Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 508 N.Y.S.2d 923 (1986); Zuckerman v. City ofNew York, 49 N.Y.2d 557,427 N.Y.S.2d 595 (1980); Bhatti v. Roche, 140 A.D.2d 660,528 N.Y.S.2d 1020 (2d Dept. 1988). To obtain summary judgment, the moving party must establish its claim or defense by tendering sufficient evidentiary proof, in admissible form, sufficient to warrant the court, as a matter of law, to direct judgment in the movant's favor. See Friends ofAnimals, Inc. v. Associated Fur Mfrs., Inc .• 46 N.Y.2d 1065, 416 N.Y.S.2d 790 (1979). Such evidence may include deposition -5- [* 5] 5 of 9 FILED: NASSAU COUNTY CLERK 09/10/2018 11:09 AM NYSCEF DOC. NO. 87 INDEX NO. 608736/2016 RECEIVED NYSCEF: 09/10/2018 transcripts, as well as other proof annexed to an attorney's affirmation. See CPLR § 3212 (b); Olan v. Farrell Lines Inc., 64 N.Y.2d 1092, 489 N.Y.S.2d 884 (1985). If a sufficient prima facie showing is demonstrated, the burden then shifts to the non-moving party to come forward with competent evidence to demonstrate the existence of a material issue of fact, the existence of which necessarily precludes the granting of summary judgment and necessitates a trial. See Zuckerman v. City ofNew York, supra. When considering a motion for summary judgment, the function of the court is not to resolve issues but rather to determine if any such material issues of fact exist. See Sillman v. Twentieth Century-Fox Film Corp., supra. Mere conclusions or unsubstantiated allegations are insufficient to raise a triable issue. See Gilbert Frank Corp. v. Federal Ins. Co., 70 N.Y.2d 966, 525 N.Y.S.2d 793 (1988). Further, to grant summary judgment, it must clearly appear that no material triable issue of fact is presented. The burden on the Court in deciding this type of motion is not to resolve issues of fact or determine matters of credibility, but merely to determine whether such issues exist. See Barr v. Albany County, 50 N.Y.2d 247,428 N.Y.S.2d 665 (1980); Daliendo v. Johnson, 147 A.D.2d 312,543 N.Y.S.2d 987 (2d Dept. 1989). It is the existence ofan issue, not its relative strength that is the critical and controlling consideration. See Barrett v. Jacobs, 255 N.Y. 520 (1931); Cross v. Cross, 112 A.D.2d 62,491 N.Y.S.2d 353 (1 st Dept. 1985). The evidence should be construed in a light most favorable to the party moved against. See Weiss v. Garfield, 21 A.D.2d 156,249 N.Y.S.2d 458 (3d Dept. 1964). When the driver of an automobile approaches another automobile 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 pursuant to New York State Vehicle and Traffic Law ("VTL") § l 129(a). See Krakowska v. Niksa, 298 A.D.2d 561, 749 N.Y.S.2d 55 (2d Dept. 2002); Bucceri v. Frazer, 297 A.D.2d 304, 746 N.Y.S.2d 185 (2d Dept. -6- [* 6] 6 of 9 FILED: NASSAU COUNTY CLERK 09/10/2018 11:09 AM NYSCEF DOC. NO. 87 INDEX NO. 608736/2016 RECEIVED NYSCEF: 09/10/2018 2002). A rear end collision with a vehicle establishes a prima facie case of negligence on the part of the operator of the offending vehicle. See Tutrani v. County ofSuffolk, 10 N.Y.3d 906, 861 N.Y.S.2d 610 (2008). Such a collision imposes a duty of explanation on the operator. See Hughes v. Cai, 55 A.D.3d 675, 866 N.Y.S.2d 253 (2d Dept. 2008); Gregson v. Terry, 35 A.D.3d 358, 827 N.Y.S.2d 181 (2d Dept. 2006); Belitsis v. Airborne Express Freight Corp., 306 A.D.2d 507, 761 N.Y.S.2d 329 (2d Dept. 2003). As noted, a rear-end collision with a stopped or stopping vehicle creates a prima facie case of liability with respect to the operator of the rearmost vehicle, thereby requiring the operator to rebut the inference of negligence by providing a non-negligent explanation for the collision. See Francisco v. Schoepfer, 30 A.D.3d 275, 817 N.Y.S.2d 52 (1 st Dept. 2006); McGregor v. Manzo, 295 A.D.2d 487, 744 N.Y.S.2d 467 (2d Dept. 2002). Vehicle stops which are foreseeable under the prevailing traffic conditions, even if sudden and frequent, must be anticipated by the driver who follows, since the following driver is under a duty to maintain a safe distance between his or her car and the car ahead. See Shamah v. Richmond County Ambulance Service, Inc., 279 A.D.2d 564, 719 N.Y.S.2d 287 (2d Dept. 2001). Drivers must maintain safe distances between their cars and the cars in front of them and this rule imposes on them a duty to be aware of traffic conditions including stopped vehicles. See VTL § 1129(a); Johnson v. Phillips, 261 A.D.2d 269,690 N.Y.S.2d 545 (l51 Dept. 1999). Drivers have a duty to see what should be seen and to exercise reasonable care under the circumstances to avoid an accident. See Filippazzo v. Santiago, 277 A.D.2d 419, 716 N.Y.S.2d 710 (2d Dept. 2000). Summary judgment is rarely appropriate in negligence actions (see Ugarriza v. Schmeider, 46 N.Y.2d 471, 414 N.Y.S.2d 304 (1979)), even where the salient facts are conceded, -7- [* 7] 7 of 9 FILED: NASSAU COUNTY CLERK 09/10/2018 11:09 AM NYSCEF DOC. NO. 87 INDEX NO. 608736/2016 RECEIVED NYSCEF: 09/10/2018 since the issue of whether the defendant or the plaintiff acted reasonably under the circumstances is generally a question for jury determination. See Andre v. Pomeroy, 35 N.Y.2d 361,362 N.Y.S.2d 131 (1974); Davis v. Federated Department Stores, Inc., 227 A.D.2d 514,642 N.Y.S.2d 707 (2d Dept. 1996); John v. Leyba, 38 A.D.3d 496,831 N.Y.S.2d 488 (2d Dept. 2007). It is well settled that there may be more than one proximate cause of a traffic accident (see Steiner v. Dincesen, 95 A.D.3d 877,943 N.Y.S.2d 585 (2d Dept. 2012); Gause v. Martinez, 91 A.D.3d 595, 936 N.Y.S.2d 272 (2d Dept. 2012); Lopez v. Reyes-Flores, 52 A.D.3d 785,861 N.Y.S.2d 389 (2d Dept. 2008)) and "the proponent of a summary judgment has the burden of establishing freedom from comparative negligence as a matter of law.'' See Antaki v. Mateo, 100 A.D.3d 579, 954 N.Y.S.2d 540 (2d Dept. 2012); Simmons v. Canady, 95 A.D.3d 1201, 945 N.Y.S.2d 138 (2d Dept. 2012); Pollackv. Margolin, 84 A.D.3d 1341, 924 N.Y.S.2d 282 (2d Dept. 2011). "The issue of comparative fault is generally a question for the trier of facts." See Allen v. Echols, 88 A.D.3d 926, 931 N.Y.S.2d 402 (2d Dept. 2011); Gause v. Martinez, supra. Further, all drivers are required to "see that which through proper use of [his or her] senses [he or she] should have seen." Steiner v. Dincesen, supra, quoting Vainer v. DiSalvo, 19 A.D.3d 1023, 914 N.Y.S.2d 236 (2d Dept. 2010) quoting Bongiovi v. Hoffman, 18 A.D.3d 686, 795 N.Y.S.2d 354 (2d Dept. 2005). Based upon the evidence presented in the papers before it, there are issues of fact as to the exact causes of the subject accident and which parties failed to act reasonably under the circumstances and failed to see that which they should have seen through the proper use of their senses. The Court finds that there are questions of fact as to the events which immediately preceded defendant Rosenblatt's vehicle's impact with plaintiffs• vehicle; the resolution of said fact intensive issues falling within the province of the finder of fac.t. -8- [* 8] 8 of 9 INDEX NO. 608736/2016 FILED: NASSAU COUNTY CLERK 09/10/2018 11:09 AM NYSCEF DOC. NO. 87 RECEIVED NYSCEF: 09/10/2018 Additionally, the Court finds that the facts and circumstances surrounding the subject motor vehicle accident involve determining the credibility of the parties involved in said accident and, in rendering a decision on a summary judgment motion, the Court is not to determine matters of credibility. "Resolving questions of credibility, assessing the accuracy of witnesses, and reconciling conflicting statements are tasks entrusted to the trier of fact." Bravo v. Vargas, I 13 A.D.3d 579, 978 N.Y.S.2d 307 (2d Dept. 2014). The record does not otherwise establish defendant Rosenblatt' s entitlement to judgment as a matter of law. See Williams v. City ofNew York, 88 A.D.3d 989, 931 N.Y.S.2d 656 (2d Dept. 2011). Therefore, based upon the above, defendant Rosenblatt's motion, pursuant to CPLR §§ 3212 and 321 I (a)(7), for an order granting summary judgment dismissing the Verified Complaint as against him, and any and all cross-claims and counterclaims as against him, is hereby DENIED. All parties shall appear for Trial, in Nassau County Supreme Court, Differentiated Case Management Part (DCM), at 100 Supreme Court Drive, Mineola, New York, on September 11, 2018, at 9:30 a.m. This constitutes the Decision and Order of this Court. ENTER: Dated: Mineola, New York September 7, 2018 ENTERED SEP 10 2018 NASSAU COUNTY COUNTY CLERK'S OFFICE -9- [* 9] 9 of 9

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