Santamaria v Wdowiak

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Santamaria v Wdowiak 2018 NY Slip Op 34235(U) December 31, 2018 Supreme Court, Westchester County Docket Number: Index No. 56758/2017 Judge: Sam D. Walker 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. 56758/2017 FILED: WESTCHESTER COUNTY CLERK 01/03/2019 04:36 PM NYSCEF DOC. NO. 42 RECEIVED NYSCEF: 01/03/2019 To commence commence the time the statutory statutory time period for of right right period for appeals appeals as of [a]), you you are (CPLR 5513 (a]), advised advised to serve serve a copy copy of of this this order, notice of entry, order, with with notice of entry, upon all parties. parties. upon SUPREME COURT COURT OF THE THE STATE STATE OF NEW NEW YORK SUPREME YORK WESTCHESTER COUNTY WESTCHESTER COUNTY PRE SEN HON. SAM D. WALKER, P RES E N T: HON. WALKER, J.S.C. ----------------------------------------------x -----------------------------------------------------------------------x DANILO SANTAMARIA SANTAMARIA and EDUARDO EDUARDO ROMERO, ROMERO, DANILO DECISION & & ORDER ORDER DECISION Plaintiffs, Plaintiffs, Index No.56758/2017 NO.56758/2017 Index -against-againstSeq. 1 OSCAR WDOWIAK BADIH A. MCQUEEN, MCQUEEN, WDOWIAK and BADIH OSCAR Defendants. Defendants. -----------------·----------------------------------x ------------------------------------------------------------------------x The following papers were motion for seeking The following papers were read on a motion for summary summary judgment judgment seeking dismissal action: dismissal of the action: Notice of Motion/Affirmation/Exhibits Motion/Affirmation/Exhibits A-L A-L Notice Affirmation in Opposition/Exhibit Affirmation Opposition/Exhibit 1-4 Reply Affirmation Reply Affirmation 1-14 15-19 15-19 20 20 the foregoing foregoing papers papers it is ordered ordered that that the motion motion is GRANTED. GRANTED. Upon the FACTUAL AND PROCEDURAL BACKGROUND BACKGROUND FACTUAL AND PROCEDURAL The plaintiffs, plaintiffs, Danilo Danilo Santamaria Santamaria ("Santamaria") ("Santamaria") and Eduardo Eduardo Romero Romero ("Romero") ("Romero") The commenced this action to recover recover damages for injuries injuries allegedly allegedly sustained sustained when commenced this action damages for when the vehicle in which which they they were were traveling operated by the defendant, defendant, vehicle traveling was struck struck by a vehicle vehicle operated Oscar Wdowiak ("Wdowiak"), whose whose vehicle was also also struck struck by the vehicle operated by the Oscar Wdowiak ("Wdowiak"), vehicle was vehicle operated defendant, Badih Badih a. McQueen McQueen ("McQueen"). ("McQueen"). defendant, Wdowiak now files the instant instant motion motion seeking seeking dismissal complaint against against of the the complaint Wdowiak now files the dismissal of [* 1] 1 of 4 arguing that that the accident accident occurred occurred onlv onlv because because of the the admitted admitted nealiaence of thp.A e ·ae ce oft him, arguing FILED: WESTCHESTER COUNTY CLERK 01/03/2019 04:36 PM NYSCEF DOC. NO. 42 INDEX NO. 56758/2017 RECEIVED NYSCEF: 01/03/2019 defendant, McQueen, McQueen, in that, that, McQueen McQueen admits admits that that he struck struck Wdowiak's Wdowiak's vehicle vehicle in the the defendant, rear, pushing pushing his vehicle vehicle into the the plaintiffs' plaintiffs' vehicle. vehicle. support of of the the motion motion Wdowiak Wdowiak relies relies upon, upon, among among other other things, things, party party deposition deposition In support transcripts, transcripts, pictures, pictures, an attorney's attorney's affirmation, affirmation, a police police report report and copies copies of the pleadings. pleadings. McQueen McQueen opposes opposes the motion, motion, arguing arguing that that there there are triable triable issues issues of fact fact requiring requiring denial denial of the the motion. motion. The The plaintiffs plaintiffs do not oppose oppose the motion. motion. of DISCUSSION DISCUSSION party on a motion motion for for summary summary judgment judgment must must assemble assemble affirmative affirmative proof proof to A party establish his entitlement entitlement to judgment matter of law, (see Zuckerman Zuckerman v City CityofN. Y., 49 establish judgment as a matter of N. Y., NY2d 557 [1980]). [1980]). "[T]he "[T]he proponent proponent of a summary summary judgment motion must must make make a prima prima NY2d judgment motion facie showing showing of of entitlement entitlement to judgment matter of of law, tendering tendering sufficient sufficient evidence evidence facie judgment as a matter Alvarez v Prospect to demonstrate demonstrate the the absence absence of any any material material issues issues of of fact" fact" (see Alvarez Prospect Hosp., Hosp., [1986]). Only Only when when such such a showing showing has been been made made must must the the opposing opposing 68 NY2d 320, 324 [1986]). party set set forth forth evidentiary evidentiary proof proof establishing establishing the existence existence of of a material material issue issue of of fact, fact, party Winegrad v New New York Univ. Med. Ctr., 64 NY2d NY2d 851, 851,853 [1985]). Winegrad 853 [19851). rear-end collision collision creates creates a presumption presumption that that the the operator operator of of the second second vehicle vehicle A rear-end was negligent, negligent, thus thus entitling entitling the injured injured occupants occupants of of the the front front vehicle vehicle to summary summary was judgment liability unless unless the driver driver of the the second second vehicle vehicle can proffer proffer a non-negligent non-negligent judgment on liability explanation for for the collision, collision, (see (see Agramonte Agramonte v City City of of New New York, 288 AD2d AD2d 75, 76 [2001 [2001]); explanation ]); Johnson v Phillips, Phillips, 261 AD2d AD2d 269, 271 [1999]; [1999]; Danza Danza v Longieliere, Longieliere, 256 AD2d AD2d 434, 434, 435 435 Johnson [1998], Iv dismissed dismissed 93 NY2d NY2d 957 [19991). [1999]). "In chain chain collision collision accidents, accidents, the the operator operator of of the [1998], middle vehicle vehicle may may establish establish prima prima facie facie entitlement entitlement to judgment matter of of law law by middle judgment as a matter demonstrating that that the middle middle vehicle vehicle was was struck struck from from behind behind by the the rear rear vehicle vehicle and demonstrating 2 [* 2] 2 of 4 FILED: WESTCHESTER COUNTY CLERK 01/03/2019 04:36 PM NYSCEF DOC. NO. 42 INDEX NO. 56758/2017 RECEIVED NYSCEF: 01/03/2019 propelled into the lead vehicle vehicle (see (see Kuris Kuris v El EI Sol Sol Contr. & Constr. Constr. Corp., 116 AD3d 675 propelled AD3d 675 [2d Dept 2014]). Dept 2014]). The evidence submitted submitted by Wdowiak Wdowiak establishes establishes entitlement entitlement to summary The evidence summary judgment judgment matter of thereby shifting burden to the the opposition opposition to demonstrate demonstrate the of law, thereby shifting the the burden as a matter existence of ofaa factual factual issue issue requiring requiring a trial. In opposition, McQueen argues argues that opposition, McQueen that Wdowiak Wdowiak existence made no effort effort to change change the direction of avoid the impact by hitting hitting his made the direction of his vehicle vehicle or to avoid the impact brake hard. McQueen McQueen also also argues argues that that there issue of of fact Wdiwiak's liability liability and fact as to Wdiwiak's brake there is an issue whether vehicle was was too close close to the plaintiffs' plaintiffs' vehicle. vehicle. whether his vehicle However, the issues issues raised raised by McQueen's McQueen's counsel counsel do no create create any issues issues of offact, However, fact, since proffered establishes establishes that stopped when when his since the testimony testimony proffered that Wdowiak's Wdowiak's vehicle vehicle was was stopped vehicle McQueen's vehicle pushed into the plaintiff's plaintiffs vehicle. vehicle. vehicle and pushed vehicle was was struck struck in the rear by McQueen's McQueen does does not dispute this and the plaintiffs do oppose the motion. McQueen McQueen has do not oppose the motion. McQueen dispute this the plaintiffs failed rebut Wdowiak's Wdowiak's prima prima facie facie showing showing of of entitlement entitlement to judgment matter of of judgment as a matter failed to rebut law. Therefore, Therefore, Wdowiak summary judgment. judgment. Wdowiak is entitled entitled to summary Accordingly, Accordingly, it is ORDERED that Oscar Wdowiak's motion for for summary summary judgment, ORDERED that Oscar Wdowiak's motion judgment, is granted granted and the complaint is dismissed dismissed as against against him. complaint The remaining remaining parties parties are directed directed to appear appear before before the Settlement Conference Conference Part The the Settlement Courtroom 1600 1600 on February February 5, 2019 2019 at 9:15 9: 15 a.m. in Courtroom 3 [* 3] 3 of 4 FILED: WESTCHESTER COUNTY CLERK 01/03/2019 04:36 PM NYSCEF DOC. NO. 42 INDEX NO. 56758/2017 RECEIVED NYSCEF: 01/03/2019 The foregoing constitutes constitutes the Opinion, Opinion, Decision Decision and Order Order of of the Court. The foregoing the Court. Dated: White Plains, New New York Dated: White Plains. York December 31, 2018 2018 December ~ SAM D. WALKER, WALKER, J.S.C. N. SAM J.S.C. 4 [* 4] 4 of 4

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