Macquaye v Giordano

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Macquaye v Giordano 2018 NY Slip Op 34229(U) August 30, 2018 Supreme Court, Westchester County Docket Number: Index No. 59206/17 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. 59206/2017 ·• FILED: WESTCHESTER COUNTY CLERK 08/30/2018 03:36 PM NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 08/30/2018 to sen,e 55-13 (a), you are CPLR 5513 under CPLR right under of right To commence commence theJO-day statutory time period for appeals are advised advised to serve appeals as of time period the.30-day statutory To parties. all upon entry, of a copy copy of this order; with notice of entry, upon all parties. notice with order; of YORK NEW YORK ATE OF NEW SUPREME COURT COURT OF THE THE ST STATE SUPREME . STER COUNTY OF WESTCHE WESTCHESTER COUNTY --------------------------------------------------------------------)( ------------------------------.------------------------X ------------WINIFRED MACQUA MAC QUA YE, WINIFRED Plaintiff, Plaintiff, Index 59206/1 7 Index No. 59206/17 No, 001 Motion Sequence Sequence No. Motion Decision Order Decision and Order -against-against- O, CHRISTINAA GIORDAN GIORDANOO and MARK MARK A. GIORDAN GIORDANO, CHRISTIN Defendants. Defendants. " ;! -----,---------------------------------------------------------------)( -----· ---------------------------------------------------------------X EVERETT, EVERETT, J. motion: The following following papers papers were read on the motion: were.read 22-28) its A-E (docs Notice of Motion/Af Motion/Affirmation ih Supp/Exhib Supp/Exhibits (docs 22-28) firmation in Notice of Affirmation in Opp Opp (doc (doc 32) . . Affirmation pursuant to CPJ:_,R order, pursuant Plaintiff Macquaye (Macquaye (Macquaye)) moves CPLR 3212, 3212, moves for an order, Winifred Macquaye Plain~iff Winifred . . . motion. is the opposed papers, the granting summary foregoing papers, opposed. motion is Upon the foregoing liability. Upon judgment as to liability. summary judgment granting granted. granted. pa_pers, affidavits, The f<?llowing following facts are_ are taken taken from the pleadings. motion papers, affidavits, documenta documentaryry pleadings, motion The ,· ? otherwise indicated. unless. otherwise evidence indicated. undisputed unless record, and are undisputed evidence and the record, I • - allegedly Macquaye instant action action to recover damages for injuries injuries she illiegedly recover damages commenced the instant Macquaye commenced operating on the was operating husband, and was with her husband, sustained when owned together together with vehicle she owned motor vehicle when the motor sustained vehicle owned morning of of March March 9, 2017, struck on the driver's driver's side by a motor motor vehicle owned by 2017, was struck ·morning Giordano (Giorda1:o) Christina Giordano defendant Giordano and operated operated by defendant defendant Christina (Giordano). . The The Mark A. Gi_ordano defendant Mark with roadway with which is a four accident occurred approximately a.m .•1 on Route Route 9A, which four lane roadway tely 7:30 a.m. occurred at approxima accident , hand lane right hand the right southbound driving two lanes running in each direction. Macquaye was driving southbound in the lane of of two lanes running each direction. Macquaye in t • [* 1] Route 9A, 9A. and was was near near the intersection intersection of of Route Route 9A ·and 'and Pleasantvil Pleasantvillele Road Road in Briarcliff Briarcliff Manor, Manor, Route 1 of 4 INDEX NO. 59206/2017 FILED: WESTCHESTER COUNTY CLERK 08/30/2018 03:36 PM NYSCEF DOC. NO. 34 RECEIVED NYSCEF: 08/30/2018 New d. Issue was joined New York, York, when when the acciden accidentt occurre occurred. service of of defend defendants' answer,, joined by service ants' joint joint answer with tive defense with affirma affirmative defenses,s, on or about about July July 28, 28,2018. The parties parties conduc conducted discovery 2018. The ted discove ry pursuant pursua nt to the prelimi nary confere nce and followto the preliminary conference follow-up compliance conferences, and the note of of issue issue and and up compli ance confere nces, and the note certific ate ofread iness were certificate of readiness were filed on Apri1 April 6, 6,2018. Currently before the Court Court is is plainti plaintiffs 2018. Cun-en tly before ffs timely acciden t was caused timely motion motion in in which which she asserts asserts that the accident caused solely solely as aa result result of Giordano's ofGior dano's neglige nce and violatio negligence violationn of of Vehicle Vehicle and Traffic Traffic Law§§ Law SS 1128 (a) and and] 1129 129 (a). (a). As the ent of As the propon proponent of the motion motion for summa summary Macquaye must tender ry judgment, judgme nt, Macqu aye must tender evident iary proof ible form sufficie evidentiary proof in admiss admissible sufficient warrantt the Court Court to to direct direct judgment in her her nt to warran judgme nt in motion tiary proof motion to to produc producee "eviden "evidentiary proof in admiss admissible sufficient require aa trial of materia materiall ible form sufficie nt to require trial of I iI questio ns of questions of fact fact on which which [they rest their] claim or must must demon demonstrate acceptable excuse for for strate accepta ble excuse rr, [their] ment of [their] failure failure to meet meet the require requirement of tender tender in admiss admissible conclusions, ible form; mere mere conclu sions, . II t favor favor as as aa matter matter oflaw. of law. Upon Upon making making this showin showingg the burden burden shifts shifts to the parties opposing the parties opposi ng the express ions of tantiate d allegat expressions of hope hope or unsubs unsubstantiated allegations assertions insufficient." (Zuckerman ions or assertio ns are insuffic ient." (Zucke rman vv City New York, City of a/New York, 49 NY2d NY2d 557, 562 [1980] [1980] [interna [internall quotati quotation marks and citation citationss omitted omitted];]; on marks CPLR CPLR 3212 [b]). [b)). In aye submit In suppor supportt of of her her motion motion,, Macqu Macquaye submits,s, among among other other things, things, copies copies of of the the pleadings pleadin gs and ion transcr ipts. Accord and .the ,the party party deposit deposition transcripts. According Macquaye, operating her vehicle vehicle in in ing to Macqu aye, she was operati ng her slow slow moving moving mornin morningg traffic traffic and was driving driving within within the confine confiness of of the right right lane. lane. She She testifie testifiedd that prior warnin g, she felt an impact that withou withoutt any any prior warning, impact to the front fi'ont driver' driver'ss side side of of her her vehicle vehicle,, and and , I 1 Il 11I! I ~~ rI' ),I j II I .t I t that heavy that she lost control control of that the the impact impact was so heavy of her vehicle, which swerve swervedd off off the road and and vehicle , which the road into ff tr at 18-24). aye recall_s into aa tree tree (plainti (plaintifftr ]8-24). Macqu Macquaye recalls that, while while she was waiting waiting for for an an ambula ambulance nce to ng vehicle to a1Tive, arrive, the the driver driver of of the offendi offending vehicle,, Giorda Giordano, came over over to apolog apologize (id. at 33-34). 33-34). no, came ize (id. at 2 2 Ii [* 2] 2 of 4 \\ FILED: WESTCHESTER COUNTY CLERK 08/30/2018 03:36 PM NYSCEF DOC. NO. 34 INDEX NO. 59206/2017 RECEIVED NYSCEF: 08/30/2018 During During Giordano's Giordano's deposition, deposition, she testified testified that, on the morning morning of of the accident, accident, she was driving southbound southbound traffic of route driving traffic in the left hand lane of route 9A, and that that Macquaye's Macquaye's vehicle vehicle was in the right hand lane (Giordano (Giordano tr at 22, 23, 25). When how the accident accident occurred, occurred, Giordano Giordano When asked asked how impact, her own vehicle just prior prior to impact, vehicle was riding riding in both the left and right right hand hand lanes; lanes,· stated that, just that she moved avoid hitting stopped directly front of moved left to avoid hitting a car that that had stopped directly in front of her, and that that in doing so, the right right passenger side of of doing passenger side of of her vehicle vehicle came came into contact contact with the left passenger passenger side Macquaye's 26-27). She acknowledges notice Macquaye's Macquaye's vehicle vehicle Macquaye's vehicle vehicle (id. at 26-27). acknowledges that she did not notice before hitting avoid contact her vehicle vehicle leftward leftward to avoid contact with hitting it and that that she did not try to swerve swerve her Macquaye's Macquaye's vehicle vehicle (id. at 24, 29-30). 29-30). Macquaye's motion motion is granted. granted. For the following following reasons, reasons, Macquaye's Vehicle states, in pertinent pertinent part: Vehicle and Traffic Traffic Law Law§S 1128 states, pati: "[w)henever any roadway divided into two or more lanes more clearly clearly marked marked lanes "[wJhenever roadway has been divided following rules addition to all others others consistent consistent herewith herewith shall for traffic traffic the following rules in addition apply: single lane (a) A vehicle vehicle shall be driven driven as nearly as practicable practicable entirely entirely within within a single from such driver has first ascertained and shall not not be moved moved fi:om such lane until the driver ascertained that that such movement made with vvith safety." safety." movement can be made Vehicle (ii) states: "[t)he driver Vehicle and Traffic Traffic Law Law§S 1129 (a) states: "[t]he driver ofa of a motor motor vehicle vehicle shall not not follow another another vehicle closely than is reasonable follow vehicle more more closely reasonable and prudent, prudent, having having due regard regard for the of such vehicles of the highway." speed of vehicles and the traffic traffic upon and the condition condition of highway." Macquaye establishes summary judgment judgment on liability based on her her Here, Macquaye establishes entitlement entitlement to summary liability based testimony that Giordano's vehicle struck and/or sideswiped sideswiped the left side of of her vehicle vehicle when when it testimony Giordano's vehicle struck and/or suddenly tried to enter enter her lane lane of only did suddenly of traffic, traffic, which which is conceded conceded by Giordano. Giordano. Not Not only Giordano Giordano have have ''a "a duty not not to enter enter a lane of of moving moving traffic traffic until it was safe to do so" (see Davis Davis 3 [* 3] 3 of 4 \ - - -- FILED: WESTCHESTER COUNTY CLERK 08/30/2018 03:36 PM NYSCEF DOC. NO. 34 INDEX NO. 59206/2017 RECEIVED NYSCEF: 08/30/2018 v Turner, 132 AD 3d 603 ,60 3 (1 51 Dep 5]; Veh v Turner, 132 AD3d 603, 603 [I" Deptt 201 2015]; Vehicle Traffic Law §S 112 11288 [a]), but her icle and Tra ffic Law [a]), but her explanation for her action, that she explanation for her action, that she did so to avo avoid hitting stopped vehicle, demonstrates that, id hitt ing a stop ped veh icle, dem ons trat es that, she was following the veh icle in fron her mor she was following the vehicle in frontt of of her moree clos closely was "rea "reasonable and prudent" ely than was son able and pru den t" under the prevailing traffic con diti ons under the prevailing traffic conditions (see Rob Robayo 109 AD3d 892, 893 [2d Dept ayo v Aghaabdul, Aghaahdul, 109 AD 3d 892 , 893 [2d Dep t 201 3]; Veh icle and Tra 2013]; Vehicle Traffic Law §S 112 1129 raJ).. ffic Law 9 [a]) I I II II I t rI tI I Defendants, who do not meaningfu lly opp ose the mot Defendants, who do not meaningfully Oppose motion, seekk an an opp opportunity to conduct ion , see ortu nity to con duc t discovery on the que stio n of damage ever, it clea discovery on the question of damages.s. How However, clearr from the the tria triall read readiness stipulation ines s stip ulation executed by both parties and filed on Ma rch 19, executed by both parties and filed March 19,2018, all pre previously ordered discovery has 201 8, that all vio usly ord ered disc overy has bee pleted or ved, and that the mat beenn com completed or wai waived, matter is read readyy for for tria trial. ter is l. iI' rI I' '1tI r ri It appearing to the Cou rt that pla inti ff It appearing to the Court plaintiff is enti entitled on liab liability, it is tled to judgment jud gm ent on ility, it is OR DE RE D that the mo tion for sum mar y judgment jud gm ent is gra ORDERED that the motion for summary granted as to to liab liability; and it is nted as ility; and it is I I furt further her OR DE RE D that cou nse l shall app ear ORDERED that counsel shall appear at the Set Settlement Conference Part,t, cou courtroom 1600, tlem ent Con fere nce Par rtro om 160 0, of the Westchester Cou nty Cou rtho use , 111 of the Westchester County Courthouse, III Dr. Ma Martin Luther King, Jr. Blv Blvd., White Plains, rtin Lut her Kin g, Jr. d., Wh ite Plains, New York, on Tue sda y, Oct obe r 9, 2018, to sch New York, on Tuesday, October 9,2018, schedule triall on on dam damages. edu le aa tria age s. J, I Thi stit utes the dec isio n and ord Thiss con constitutes decision order of the the Cou Court. er of rt. Dat ed: Wh ite PJa Dated: White PJains, New Yor Yorkk ins, New Aug ust3 ~20 I18 August3~20 8 II EN TER : ENTER: )i ' ., . ~ \~lcr~" ~:€~ (r HO N. DA HON. DA VID VlD F. F, EV EVERETT, A.J,S,c. ER ETT , A.J .S.C. rr rI File Filedd via NY NYSCEF SCE F Ste ven Ada m Rub in & Ass Steven Adam Rubin Associates, PLLC ociates, PLL C I Ric hard T. Lau Ass Richard Associates ocia tes rr ' l.I 4 [* 4] 4 of 4 \\

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