Corbo v Novelli

Annotate this Case

Download PDF

Corbo v Novelli 2018 NY Slip Op 34199(U) July 27, 2018 Supreme Court, Westchester County Docket Number: Index No. 50807/17 Judge: David F. Everett 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. 50807/2017 FILED: WESTCHESTER COUNTY CLERK 07/30/2018 02:46 PM NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 07/30/2018 commence the 30-day 30-day statutory statutory time time period To commence period for ap eals as ff' • h' h •. copy of of this order, order, with notice notice of of entry, entry, upon all fig t under CPLR 5513 55] 3 (a), you are advised advIsed to serve serve a copy all pa~es. pa!es. . o0 ng under CPLR SUPREME COURT COURT OF THESTATE THE STATE OF NEW YORK SUPREME NEW YORK COUNTY OF WESTCHESTER WESTCHESTER COUNTY . . -----------------------------------~-----------------------------X -----------------------------------------------------------------X MICHAEL MICHAEL A. CORBO CORBO , ' ,. Plaintiff, Plaintiff, Index No. 50807117 50807/17 Index Motion Sequence Sequence No. 001 Motion Decision and and Order Order Decision -against-againstSTEVEN M. NOVELLI STEVEN NOVELLI , ' rl Defendant. Defendant. -----------------------------------------------------------· ---X -------------------------------------------------------------~---X EVERETT, . EVERETT, J. 1. following papers were read on the motion: motion: \ The following papers were Notice of Motion/Affirmation Motion/Affirmation in Supp/Memorandum Supp/Memorandum of of Law/Exhibits Law/Exhibits A-E/ A-E/ Notice of Electronic Filing Filing Authorization Authorization (docs (docs 22-26) 22-26) Electronic action arising arising from a motor motor vehicle vehicle collision, collision, plaintiff Michael A. Corbo Corbo (Corbo) In this action plaintiff Michael (Corbo) moves foran for an order, order, pursuant CPLR 3212, 3212, granting granting summary summary judgment against defendant defendant moves pursuant to CPLR judgment against Steven M. Novelli (Novelli) on-the ·issue .issue of of liability. liability. Upon Upon the foregoing foregoing papers, Steven Novelli (Novelli) papers, the unopposed unopposed motion is granted. granted. motion fo}lowing facts are taken taken from the pleadings, affidavits, documentary documentary pleadings, motion motion papers, papers, affidavits, The fo_llowing evidence and the record, record, and are undisputed evidence undisputed unless unless 'otherwise btherwise indica~ed. Plaintiff commenced commenced the instant instant action action by filing filing a summons summons and and complaint complaint in the Office Office Plaintiff of the Westchester Westchester County County Clerk Clerk on onJanuary recover damages damages he allegedly allegedly sustained sustained of January 'l'18,2017, 8, 2017, to recover February 7, 2015, 2015, when, when, while while riding riding as a passenger motor vehicle that he owned, but was on February passenger in a motor vehicle that he owned, but was being operated by non non party Michael Colquhoun, Colquhoun, his motor motor vehicle vehicle was was struck struck from from behind being operated party Michael behind by a m~tor vehicle vehicle owned owned and ope~ated by Novelli. complaint sounds sounds in negligence negligence and and alleges alleges m~tor Novelli. The complaint \ [* 1] Corbo sustained sustained a serious serious injury, injury, as defined defined under Insurance Law 5102 ((d). Issue was was that Corbo under Insurance _Law §S 5102 d). Issue 1 of 4 INDEX NO. 50807/2017 FILED: WESTCHESTER COUNTY CLERK 07/30/2018 02:46 PM NYSCEF DOC. NO. 28 RECEIVED NYSCEF: 07/30/2018 joined service ofNovelli's of Novelli's answer answer with with affirmative affirmative defenses defenses on or about about March March 28 , 2017 2017 , joined by service . . . ' ' which the parties parties conducted conducted discovery discovery pursuant pursuant to the preliminary preliminary conference conference and follow-up follow-up after which compliance compliance conference conference orders. orders. · The The note note of of issue Issue and certificate certificate of of readiness readiness ·were were filed on April April is 11,2018, and before before t~e the Court. Court is c;:orbo's Corbo's ti~ely timely ~otion motion for sum~aryjudgment. summary judgment. 11, 2018, ~nd ........ proponent of of the motion motion for summ~ry summary judgment, Corbo must must tender tender evidentiary evidentiary As the proponent judgment, Corbo proof in admissible admissible form suffici_fnt_ suffici~nt to warrant warrant the ·court court to direct diniet judgmentin favor as a··matter a matter proof judgment irt his favor oflaw (Zuckerman v City City of a/New 557, 562 [1980]; [1980]; CPLR CPLR 3212 3212 [b]). Should Should of law (Zuc/cerman New York, 49 NY2d NY2d 557,562 Corbo Corbo make make the ·requisite 'requisite ;showing, ,showing, the burden burden wo~ld would shift shift to Novelli Novelli to produce produce evidentiary evidentiary ·. . . . proof in admissible admissible form suffi.cient suffi,cient to require require a trial trial on one or more more issues issues of offact proof fact (id.). \i Corbo _supports supports his motion motion with with a copy of of the pleadings, pleadings, together together with with copies copies of, Here, Corbo among other other things, things, the_ the pleadings, pleadings, his sworn sworn deposition deposition transcript, transcript, and an affidavit affidavit of of service service among respecttoto the motion. motion. During During his deposition, deposition, Corbo Corbo testified testified that, that, on the the day of of the · with respect accident, he was a restrained restrained passenger passenger riding riding in the front passenger passenger seat seat of of his 2000 2000 Honda Honda Civic Civic accident, i (Civic) that was being being operated operated by Coiquhoun Colquhoun with with his perm~ssion permission and autho;ity._ authority. They They were were (Civic) I traveling southbound southbound on Interstate Interstate 87 (I-87), (1-87), as they headed headed from from their their home home in Mahopac, Mahopac, New traveling New e I location in Yonkers, Yonkers, New York. According According to ~~rho's ~orbo's testimony, testimony, after after they they exitedr-2 exitedfNew York York, to a location Exit 1, they, along alongwith seven or eight eight cars on the exit' exitramp directly ahead ahead of of them, them, 87 at Exit with the seven ramp directly . • 1'_ • \_\ • came to a complete complete stop stop while while they they waited waited for the traffic traffic light light at the end end of of the the ramp ramp to change. change. came \I I I while they they were were stopped stopped that that the Civic Civic was suddenly suddenly struck struck in the rear rear by the vehicle vehicle It was while (truck) owned owned and. and operated_ operated by Novelli (Corbo tr at 46-49). 46-49). Corb~ Corb? testified testified that, that, upon upon impact, impact, his (truck) Novelli· (Corbo moved forward forward and backwa~ds, backwards, causing causing him to feel pain pain in the ·areas areas of of his his neck, neck, shoulder shoulder body moved I back (id. at 53, 85). and bac!( I 2 [* 2] 2 of 4 \ , I FILED: WESTCHESTER COUNTY CLERK 07/30/2018 02:46 PM NYSCEF DOC. NO. 28 INDEX NO. 50807/2017 RECEIVED NYSCEF: 07/30/2018 . . . With respect respect to collisions collisions b.etween moving vehicles, vehicles, or moving vehicle vehicle arid and a With between moving or between between a moving stopped vehicle, vehicle, it is well settled settled that, that, "[ "[w)hen driver of of an automobile automobile approaches approaches another another stopped w]hen the driver automobile from the rear, he or·she or she is bound bound to maintain maintain a reasonably reasonably safe safe rate of of speed speed and automobile control over over his or her her vehicle, vehicle, and to exercise exercise reasonable reasonable care care to avoid avoid colliding colliding with with the other other control . . vehicle" (Taing (Taing v Drewery, ADJd 740, 741 [2d Dept Dept 2012]). 2012]). It is also also well settled settled law law that, vehicle" Drewery, 100 ADJd "any rear-end rear-end collision collision establishes establishes a prima facie case of of negligence.on negligence. on the part part of of the the rear-ending rear-ending "any prima faciecase 1 Dept2005]), driver" (De La Cruz v Ock Ock Wee Leong, AD3d 199,200 199,200 [I5 [lSIDept 2005]), and and that, that, when when "a "a driver" La Cruz Leong, 16 AD3d rear-end collision collision occurs, occurs, the occupants occupants of of the front vehicle vehicle are entitled entitled to summary summary judgment rear-end judgment on liability, unless unless the driver driver of of the following following vehicle vehicle can provide provide a non non negligent negligent explanation, explanation, in liability, st Dept 1999]). evidentiary form, form, for the the collision"(Jo~nson collision"(Jo~nson vPhillips, v Phillips, 261 AD2d AD2d 269,271 269, 271 [1 [lSIDept 1999]). evidentiary Finally, Vehicle Vehicle and Traffic Traffic Law§ Law 91129 provides,at subsection subsection (a), that that "[t]he "[t)hedriver ofamotor Finally, 1129 provides,at driver ofa motor jJ vehicle shall not follow follow another another. vehicle vehicle more more closely than is reasonable reasonable and prudent, prudent, having having due vehicle closely than . . speed of of such such vehicles vehicles and the traffic traffic upon upon and the condition of of the the highway." highway." regard for the speed the condition Here, Corbo Corbo satisfied satisfied his prima facIe burden burden of of establishing establishing negligence negligence on the the part part of of Here, priina facfo Novelli matter oflaw of law on the the issue issue ofliability, ofliabiiity, by submitting submitting evidence evidence that that the the motor motor vehicle vehicle Novelli as a matter riding in was was struck struck in the rear rear by by the 1:11otor motor vehiclevehicle (truck) (truck) driven driven by Novelli. he was riding Novelli. Novelli Novelli does not challenge challenge Corbo's Corbo's evidence, evidence, or his prima prima facie showing. showing. does Given the la~k of of opposition, opposition, Corbo's Corbo's moticin motion isgranted, is granted, as it is well settled settled that that a party's' party's " Given oppose or contest contest a mov~~t'sfactual mov~nt'sfactual assertions asseftions"is,'in effect, a concession concession that that no failure to oppose i'is/in effect, question of of fact exists" exists" (Kuehne (Kuehne & & Nagel v Baiden, :36 NY2d 539; 544 [1975]; [1975]; see question Nagel v·Baiden, NY2d 539, see also Admiral Admiral_ ~ . pst Ins. Co. v Marriott AD3d 572,577 572,577 ,P s1 Dept2010]). Dept2010]). Marriott Intl., Inc., Inc., 79 AD3d appearing to the the Court Court that that Corbo Corbo is_ is entitled entitled to judgment liability and and that that any triable triable It appearing judgmeiit on liability 3 [* 3] 3 of 4 I -;., j FILED: WESTCHESTER COUNTY CLERK 07/30/2018 02:46 PM NYSCEF DOC. NO. 28 INDEX NO. 50807/2017 RECEIVED NYSCEF: 07/30/2018 issues of of fact arising motion for summary summary judgment amount of of damages damages to issues arising on his motion judgment relate relate to the amount which he is entitled, entitled, it is accordingly accordingly which ORDERED that the motion summary judgment granted with regard to liability; ORDERED that motion for summary judgment is granted with regard liability; and further it is further ORDERED that that counsel counsel for the parties directed to appear appear at the Westchester County ORDERED parties are directed Westchester County Courthouse, 111 III Dr. Martin Martin Luther Luther King, King, Jr. Blvd:, York, at the the Settlement Courthouse, Blvd:, White White Plains, Plains, New New York, Settlement Conference Part, Part, Courtroom Courtroom 1600, on Tuesday, Tuesday, August August 21, 2018, 2018, at 9: 15 a.m., a.m., to schedule schedule aatrial trial Conference on damages. damages. This constitutes constitutes the decision decision and order order of of the Court. Court. This Dated: White White Plains, New York York Plains, New ~12018 July :1..12018 . ENTER: ENTER: t HON. ~i:Qr ~<OC IDF. ~F. EVERETT, A.l.S.C. EVERETT, A.J.S.C. Electronically Filed. Electronically Filed. Bragoli & Associates, Associates, P.C. Bragoli Broad Hollow Road 300 Broad Hollow Road Melville, NY Melville, NY 11747 Adams, Hanson, Hanson, Rego Rego & Kaplan Kaplan Adams, Executive Blvd. Blvd. 1 Executive Yonkers, NY Yonkers, NY 10701 4 \ [* 4] 4 of 4

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.