Kimiecik v Yoo

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Kimiecik v Yoo 2018 NY Slip Op 34315(U) September 5, 2018 Supreme Court, Orange County Docket Number: Index No. EF006868/l 6 Judge: Robert A. Onofry 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. EF006868-2016 FILED: ORANGE COUNTY CLERK 09/05/2018 01:23 PM NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 09/05/2018 SUPREME COURT-STATE OF NEW YORK IAS PART"'.ORANGE COUNTY Present: HON. ROBERT A. ONOFRY, A.J.S.C. SUPREME COURT : ORANGE COUNTY --------------------------- -------------------------------- -- ------X PETER D. KIMIECIK, Plaintiff, - against- To commence the statutory time period for appeals as of right (CPLR 5513[a]), you arc advised to serve a copy of this order, with notice of eritry~ upon all parties. Index No. EF006868/l 6 · DECISION and ORDER STEVES. YOO, Defendant. Motion Date: August 22, 2018 ------------ --------- . ----- .------ . - -- ·-- .· - ------- - ----- ----X The following papers numbered 1 to 4.were read and considered on a motion by the Plairitiff1 pursuant to CPLR§ 3212, for summaryjudgment on the issue of liability. · Notice of Motion- Orloff Affirmation- KIMIECIK Affidavit- Exhibits A-F .......................... 1.;4 Upon the foregoing papers, it is hereby, ORDERED; thatthemotion is granted. Introduction The Plaintiff Peter Kimiecik commenced this action to recover damages arising from a motor vehicleaccident He moves for summary judgment on .the issue ofliability. The motion is granted. Factual/Procedural Background In an affidavit,Kimiecik avers as follows. Oh March ll,2016, he was driving his Chevrolet pickup truck eastbound on York State 1 Filed in Orange County [* 1] 09/05/2018 12:00:00 AM $0.00 1 4 Bk:of 5121 Pg: 1574 Index:# EF006868-2016 Clerk: EB FILED: ORANGE COUNTY CLERK 09/05/2018 01:23 PM NYSCEF DOC. NO. 19 INDEX NO. EF006868-2016 RECEIVED NYSCEF: 09/05/2018 Route 94. While stopped at the intersection of Durland Road, with his left directional signal on waiting to make a turn, his vehicle was struck in the rear by a GMC SUV being driven by the· Defendant Steve S. Yoo. The area in question is le_vel and, at thetime of the accident, it was daylight, visibility was good, and the roadways were dry. He was stopped approximately JO seconds before impact. At an examination before trial, the Defendant Steve S. Yoo testified as follows. On March 11, 2016, while driving on State Route 94, his vehicle struck the r~ar of the Piaintiffs vehicle,which was stopped(T-13-15)~ Nothing obstructed his view (T~l4). The traffic was nOthca.vy,and the weatherwas partially sunny and dry (T~l3-14). His vehicle sustained more than $20,000.00 damage in the accident, and both drivers left the scene in an ambulance (T-24). Discussion/Legal Analysis A partyseeking summaryj1:1dgmcnt bears the initial burden of establishing a prima facie entitlement tojudgment as a matter of law by tendering competent evidence in admissible form sufficienno eliminate any triable, material issues of fact from the case; If the moving party fails to meet this burden, the papers submitted in opposition need not be considered. If the moving party makes such a prima facie showing, the burden shifts to the opposing party to demonstrate the existence of an issue of fact requiring a trial. Phillip v. D & D Ca,;thig Co., Inc., 136 A.D.3d 18 [2 nd Dept. 2015]; Dempster v: Liolli, 86A.D3d 169 £2nd Dept. 2011]. To prevail on a motion for summaryjudgment On the issue of liability in a negligence case, the plaintiff must establish, prima facie, not only that the opposing party was negligent, but also that he or she wasfree from comparative fault. Nikolic v. City~Wide Sewer & Drain Service 2 [* 2] 2 of 4 FILED: ORANGE COUNTY CLERK 09/05/2018 01:23 PM NYSCEF DOC. NO. 19 INDEX NO. EF006868-2016 RECEIVED NYSCEF: 09/05/2018 C01p., 150 A.D.3d 754 [2nd Dept. 2017]. Relevant to. the case at bar, a rear-end collision with a stopped or stopping vehicle establishes a prim a Jacie case of negligence on the part of the operator of the rear vehicle, requiring that operator to come forward with evidence of a nonnegligent explanation for the collision in order to rebut the inference of negligence. Nikolic v. City-Wide Sewer & Drain ServiceC01p., 150 A.D.3d 754 [2nd Dept. 2017]; Tumminello v. City oJNew York, 148 A.D.3d I 084 [2 nd Dept.2017 ]. A nonnegligent explanation may include a mechanical failure, a sudden, unexplained stop of the vehicle ahead, an unavoidable skidding on wet pavement, or any other nd reasonable cause. Tumminello v. Cityo.fNew York, 148A.D.3d 1084 [2 Dept. 2017]. However, while a nonnegligent explanation for a rear.;erid collision may include evidence of a sudden stop of the lead vehicle, vehicle stops which are foreseeable under the prevailing traffic conditions, even if sudden and frequent, must be anticipated by the driver who follows, .since he or she is under a duty to maintain a safe distance between his or her car and the car ahead. Tummi11el/o v. City ofNew York, 148 A.D.3d 1084 [2 nd Dept. 2017]. Here, the Plaintiff submitted competent evidence in admissible form sufficient to demonstra te,primafa cie, that the Defendant was negligent in the happening of the accident, and that he was free from contributory negligence. The Defendant did not oppose the motion. Thus, the Plaintiff is granted summary judgment on the issue of liability. Accordingly, and for the reasons cited herein, it is hereby, ORDER.ED, that the motion is granted; and it isfurther, ORDERED that the parties,.through respective counsel,ar e directed to appear for a Pre3 [* 3] 3 of 4 FILED: ORANGE COUNTY CLERK 09/05/2018 01:23 PM NYSCEF DOC. NO. 19 INDEX NO. EF006868-2016 RECEIVED NYSCEF: 09/05/2018 trial/Scheduling Conference cm Tuesday, October! 6, 2018, at 1:30 p.m., at the Orange County Surrogate's Court House, 30 Park Place, Goshen, New York, to determine how the matter shall proceed on the issue of damages. TheJoregoing constitutes the decision and order of the court. ENTER Dated: September 5, 2018 Goshen, NewYork TO: Law Office of Marc Q. Orloff, P.C. Attorney for the Plaintiff Office& P.O. Address 25 Main Street, P.O. Box 386 Goshen, New York 10924 Boeggeman, George & Corde, P.C. Attorney for the Defendant Office & P.O. Address 3 Barker Avenue; 4 th Floor White Plains, New York 10601 4 [* 4] 4 of 4

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