Carey v Almonte

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Carey v Almonte 2018 NY Slip Op 34321(U) May 11, 2018 Supreme Court, Rockland County Docket Number: Index No. 035627/2016 Judge: Thomas E. Walsh II 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. 035627/2016 FILED: ROCKLAND COUNTY CLERK 05/14/2018 03:20 PM NYSCEF DOC. NO. 69 RECEIVED NYSCEF: 05/14/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ROCKLAND -------------------- -- ------------------------------------------ ----x JI LLIAN CAREY, Pia i ntiff( s), DECISION & ORDER Index No. 035627/2016 - aga inst- Motion # 2 - MD DC - Y Adj: CARLOS M. ALMONTE, EASTERN STATE TIRE CORP., and JASON HERNAND EZ Defendant (s) . ----------------- -- --- --- - -------------- ------ - - -- --- - ---- -- -- -- - - - -x Hon. Thomas E. Walsh, II, J.S.C. The fo ll ow ing pape rs nu mbered 1 read on this mot ion by Defendan t JASON HERNANDEZ seek ing an Order, pu rsuant to Civil Practice Law and Rules § 32 12, thereby granting summary judgment and dismiss ing Plainti ff's Comp laint and all claims , on the grounds that the facts clearly est ab lish as a matter of law that the Defendant, JASON HERNANDEZ, is not liab le in th is acti on and fo r such other, further and d ifferent re li ef as th is Court may deem j ust and proper: NUMBERED PAPERS 1 Notice of Mot ion/Affirmat ion of James A. Rogers, Esq./Exh ibits (A-H) Th is action arises from a three (3) car accident on March 25, 2015 on Haverstraw Road near the intersection with Lime Kiln Road in Wes ley Hills. Pla intiff filed and served the Summons and Complaint on December 20, 2016. Issued was joined by co-Defendant ALMONTE and EAST ERN STATE TIRE CORP., with the fi li ng of an Answer. Defendant HERNANDEZ joined issue upon fil ing of an answer on February 17, 2017. Defendant HERNANDEZ fi led a motion for summary judgment as to liab il ity on May 1, 2017, which was denied by the undersigned by Decis ion and Order dated September 25, 2017 . Specifica lly, Defendant HERNANDEZ's previous motion was denied as premature since none of the parties to the action had been deposed before the motion was filed. Defendant HERNANDEZ subm itted the instant motion for summary judgment as to liability on his behalf after all parties depositions were completed. In the instant action Pla intiff was turning left and states that she was at a complete st op when her vehicle was struck by a vehicle driven by Defendant JASON HERNANDEZ. [* 1] 1 of 4 FILED: ROCKLAND COUNTY CLERK 05/14/2018 03:20 PM NYSCEF DOC. NO. 69 INDEX NO. 035627/2016 RECEIVED NYSCEF: 05/14/2018 Accord ing to Defendant HERNANDEZ his veh icle was struck in the rea r by a van driven by Defen dant CARLOS ALMONTE (vehicle owned by Defend ant EASTERN STATE TIRE CORP .). Defendant HERNANDEZ filed the instant motion for summary judgment arguing that in the instant circumstance of a rear end collision with a stopped vehicle creates a prima facie case of negligence wi t h respect to the driver of the moving veh icle unless a nonneg li gent reaso n for t he accident is opined. In his Affidavit De fendant HERNANDEZ states t hat he observed Plaintiff's veh icle in front of him t rave li ng on Haverstraw Road, app ly the brakes and place a left turn signal one ind icating an intent to turn left into Lime Kiln Road. Further, Defe ndant HERNANDEZ states that after observing the aforementioned actions he placed his right foot on the brake and brough t his car to a slow gradual stop which resulted in his vehicle coming to a complete stop two (2) car lengths behind Plaintiff's vehicle. According to Defendant HERNANDEZ's Affidavit after stopp ing for approx imate ly 30-40 seconds he felt in an impact in t he rea r of his vehicle wh ich pushed h is veh icle forward into the rear of Plaint iff's veh icle. Defendant HERNANDEZ asserts that his vehicle was at a comp lete stop at the time of the accident and therefore co-Defendant CARLOS ALMONTE owes a duty of explanation to him. Further, Defendant HERNANDEZ subm its that According to Defendant HERNANDEZ, the Plaintiff testified in her Exam ination Before Trial ( hereinafter EBT) that she was stopped at the intersection of Route 202 and Spook Rock Road and intend ed to make a left turn onto Spook Rock Road. Plaintiff testified that at the time she was stopped , she looked at her rea rv iew mirror and observed the vehicle behind her slow ing down and eventually come to a comp lete stop. Further, Pla intiff test ifi ed that after four ( 4 ) or five ( 5) seconds elapsed t he rear of her vehicle was struck by the vehicle she observed behind hers. Additionally, Plaintiff testified that she saw the police speak ing with Defendant HERNANDEZ and ALMONTE and that she overhead Defendant ALMONTE (who was driving the th ird vehicle involved in th e accident) apolog ize and state that his brakes failed. Defendant CARLOS ALMONTE test ifi ed in his EBT that he noted that the van he was driv ing on the date of the accident had a prob lem w ith the brakes about one week before the acc ident. ALMONTE test ified that he was operating th e same van on the date of t he acc ident and was on his way t o New Jersey from the warehouse located in Stony Point, New York . Defendant ALMONTE further stated that he when he was driving on 202, observed two (2) stopped vehicles on Route 202 and attempted to apply the brakes, but the van d id not stop and he st ru ck the vehicles that were stopped on Route 202. The proponent of a summary j udgmen t motion mu st estab li sh his or her cla im or defe nse sufficient to warrant a court directing judgment in its fa vor as a matter of law, tendering sufficient evidence to dem onst rate the lack of material issues of fact. [Giuffrida v. [* 2] 2 of 4 INDEX NO. 035627/2016 FILED: ROCKLAND COUNTY CLERK 05/14/2018 03:20 PM NYSCEF DOC. NO. 69 RECEIVED NYSCEF: 05/14/2018 Citibank Corp ., et al., 100 N.Y.2d 72 (2003), citing Alvarez v. Prospect Hosp. , 68 N.Y.2d 320 (1986) ] . The failu re to do so requires a den ial of the mot ion withou t regard to t he sufficiency of the oppos ing papers. [Lacaqnino v. Gonzalez, 306 A.D.2d 250 ( 2d De pt. 2003)]. However, once such a showing has been made, the burden sh ifts to the pa rty oppos ing the motion to produce ev ident ia ry proof in admiss ib le form demonstrating materia l questions of fact requiring trial. [ Gonzalez v. 98 Mag Leasing Corp., 95 N.Y.2d 124 (2000), cit ing Alvarez, supra, and Wineqrad v. New York Univ. Med. Center, 64 N.Y.2d 85 1 (1985)]. Mere conclus ions or unsubstantiated allegations un su pported by competent evi dence are insufficient to raise a t riab le issue . [Gilbert Frank Corp. v. Federal Ins. Co ., 70 N. Y.2d 966 (1988); Zuckerman v. City of New York, 49 N.Y.2d 55 7 (1980)]. It is wel l-settled that a rea r-e nd collision with a stopped vehicle creates a pr ima fac ie case of li ability with respect to the ope rator of t he moving vehicle, unless t he operator of the moving veh icle can come forw ard wi t h an adequate, non-neg li gent explanation for the acc ident. [Smith v. Seskin, 49 A.D.3d 628 (2d Dept. 2008); Harris v. Ryder, 292 A.D.2d 499 (2d Dept. 2002)]. Further, wh en the dr iver of an automobile approaches another from t he rea r, he o r she is bound to ma in tain a re asonab ly sa fe rate of speed and contro l over h is or her veh icle, and to exercise reasonab le care to avo id coll iding with the other veh icle. [VTL § 1129(a) (" Th e driver of a moto r veh icle shall not follow another veh icle more close ly than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon the cond it ion of the highway."); Taing v. Drewery, 100 A.D .3d 740 (2d Dept. 2012)] . As noted previously, des pite the fact that the instant motion was served upon Pla int iff and co-Defendants' counsel, no opposition was received. 1 The Court finds that based on t he fact that Defendant HERNAND EZ's veh icle was the middle vehicle in a cha in reaction accident and that it struck the lead vehicle in the rear, there are no genuine/mate ria l issues of fact as to Defendant HERNANDEZ's negl igence preclu d ing summary judgment in his favo r or that requ ire a t ria l fo r reso lution. Therefo re De fendant HERNANDEZ's summa ry judgment motion is granted in its ent irety . In arr iving at th is decision the Court has reviewed, evaluated and cons ide red all of the issues framed by t hese motion papers and the failure of the Cou rt to specifically mention any particular issue in th is Decision and Order does not mean that it has not been The Court notes that the parties were direct d by the unders igned to fi le th ate of Issu by March 7, 20 18 and all dispositive motions by April 6, 201 8. Defendant HERNA DEZ filed the in tant motion two (2) days prior to the date direcled by the Court. However, the ote of Issue wa not filed until April 27, 20 18. Further, Plaintiff and Defendants ALMO T and A T RN AT TIRE CORP, filed motions for ummary judgment (Motions# 3 and #4) on pri I I I 20 I 8 and pril 30, 20 I 8, respectiv ly which ar not returnable until ay 25 , 20 I 8. 1 [* 3] 3 of 4 INDEX NO. 035627/2016 FILED: ROCKLAND COUNTY CLERK 05/14/2018 03:20 PM NYSCEF DOC. NO. 69 RECEIVED NYSCEF: 05/14/2018 considered by the Court in light of the appropriate legal authority. Accordingly , it is hereby ORDERED that Defendan t JASON HERNANDEZ's No t ice of Motion (Motion # 2) is gran ted in its ent irety; and it is fu rther ORDERED that the insta nt action is dism issed as to Defendant JASON HERNAN DEZ and the Cle rk is directed to mark the file accordingly . The foregoing is the Dec isi on and Order of the Court on Moti on #2. Dated: New May CjjY, New York 2018 J-L-' To : JOSEPH G. DEL L, ESQ. DE LL & DEAN , PLLC At torney for Plaintiff (v ia e-fi le) JAM ES A. ROGERS, ESQ . WILSON, BAVE, CONBOY, COZZA & COUZENS, P.C. Attorney for Defendant JASON HERNANDEZ ( v ia e-fil e) DE BORAH S. REED , ESQ . PI CCIANO & SCAHILL, P.C. Attorney for Defen dants CALROS M. ALMONTE and EASTER N STATE TIRE CORP. (via e-fi le) [* 4] 4 of 4

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