Lewis v Conklin

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Lewis v Conklin 2018 NY Slip Op 34348(U) April 26, 2018 Supreme Court, Rockland County Docket Number: Index No. 30394/2017 Judge: Sherri L. Eisenpress 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. 030394/2017 FILED: ROCKLAND COUNTY CLERK 04/30/2018 09:46 AM NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 04/26/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ROCKLAND ------------------ - - -------- -- ----------------------------- - x BRUCE L. LE WI S, DECISION & ORDER Plaintiff, -againstIndex No.: 30394/2017 LE E R. CONKLIN, "JOHN DOE", LARRY B. WEINSTEIN and KEVIN L. WILLI AMS (Motions# 1 and # 2) Defendant. - - --- -- - --- - ----------------------- - - ---- -------------------x Sherri L. Eisen press, A.J. S . C. The fo ll ow ing papers, numbered 1 throug h 7, we re considered in connection with (i) Defendants Larry We instein and Kevin Williams ' Not ice of Mot ion fo r an Order, pursuant to Civil Practice Law and Rules § 32 12, granting summary judgment and dism issa l of Plain t iff's Complaint and all cross-claims against them {Motion #1 ), and ( ii ) De fenda nt Lee R. Conkl in's Notice of Cross-Motion for summary j udgment and dism issal of Plai ntiff's Comp laint, pursua nt to Civil Practice Law and Rules§ 3212, on the ground that he bears no lia bility for t he subject accident as his vehicle was stolen and not operated w ith his perm ission and contro l at t he time of the accident ( Motion # 2): PAPERS NUMBERED NOTICE OF MOTION/AFFIRMATION IN SUPPORT/AFFIDAVIT OF KEVIN WILLI AMS/EXHIBITS (A- G) 1-3 NOTICE OF CROSS-MOTION/AFFIRMATION IN SUPPORT OF CROSS-MOTION AND IN PARTIAL OPPOSITION TO MOTION/AFFIDAVIT OF LEE CONKLIN/ EXHIBITS (A-B) 4-6 AFFIRMATION IN REPLY 7 Upon a carefu l and deta il ed review of t he foregoing papers, the Court now rul es as follows: This actio n was commenced by Plaintiff on January 20, 2017, with the filing of the [* 1] 1 of 5 INDEX NO. 030394/2017 FILED: ROCKLAND COUNTY CLERK 04/30/2018 09:46 AM NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 04/26/2018 Summons and Complaint through the NYSCEF system . Issue was joined as to Defendants Larry B. Weinstein and Kevin L. Williams with the filing of Defendants' Answer through the NYSCEF system on_April 11, 2017. Issue was joined with respect to Defendant Lee R. Conklin, by the filing of Defendant's Answer through the NYSCEF system on April 14, 2017. The action arises from an accident which occurred on August 21, 2015, on Northbou nd 1- 87, on the Tappan Zee Bridge, in Nyack, New York, when the rear of vehicle operated by ·Defendant Wi lliams and owned by Defendant Weinstein, was struck by a four door sedan, while stopped in heavy, " stop and go traffic" on the Tappan Zee Bridge. Plaintiff was a passenger in the vehicle operated by Defendant Williams. Following the accident, the four door sedan which had struck the Williams' vehicle fled the scene of the occurrence. One of the passenge rs in the Williams vehicle took the li cense plate number down before it fled. Williams observed that the vehicle wh ich fled was being operated by a Hispanic or Caucasian man. Williams averred that approximately five minutes prior to impact, he saw the veh icle be ing driven erratically behind him through his rear view mirror, and noted that it was bumping into other cars and kept changing lanes. Defendant Williams and Weinstein move for summary j udgment ori t he ground that their vehicle was struck in the rear when stopped . Plaintiff does not oppose the summary judgment motion of these defendants. Co-defendant Conklin partially opposes the motion on the ground that it is premature and discovery shou ld take place. Defendant Conklin cross-moves for summary judgment on the ground that he is not liable for the subject accident since his vehicle was stolen at the time of the occurrence and he did not give the driver perm ission or consent to operate the vehicle. He states that he was unaware that his vehicle was stolen at the time of the occurrence, as it is his secondary vehicle which he parks in his condominium comp lex, and infrequently uses. It is his practice to always keep the vehicle locked when not in use and parked in the parking spot. Upon learning of the accident from a state trooper, he reported the vehicle stolen. Neither Plaintiff nor co-Defendant oppose the summary judgment cross-motion. 2 [* 2] 2 of 5 FILED: ROCKLAND COUNTY CLERK 04/30/2018 09:46 AM NYSCEF DOC. NO. 39 INDEX NO. 030394/2017 RECEIVED NYSCEF: 04/26/2018 The proponent of a· summary judgment motion must establish his or her claim or defense sufficient to warrant a court directing judgment in its favor as a matter of law, tendering sufficient evidence to demonstrate the lack of material issues of fact. Giuffrida v. Citibank Corp., eta!., 100 N.Y.2d 72, 760 N.Y.S.2d 397 (2003), citing Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923 (1986). The failure to .do so requires a denial of the motion without regard to the sufficiency of the opposing papers. Lacaqnino v. Gonzalez, 306 A.D.2d 250, 760 N.Y.S.2d 533 (2d Dept. 2003). However, once such a showing has been made, the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form demonstrating material questions of fact requiring trial. Gonzalez v. 98 Mag Leasing Corp., 95 N.Y.2d 124, 711 N.Y.S.2d 131 (2000), citing Alvarez, supra, and Winegrad v. New York Univ. Med. Center, 64 N.Y.2d 851, 508 N.Y.S.2d 923 (1985). Mere conclusions or unsubstantiated allegations unsupported by competent evidence are insufficient to raise a triable issue. Gilbert Frank Corp. v. Federal Ins. Co., 70 N.Y.2d 966, 525 N.Y.S.2d 793 (1988); Zuckerman v. City of New York, 49 N.Y.2d 557 (1980), 427 N.Y.S.2d 595. It is well-settled that a rear-end collision with a stopped or stopping vehicle creates a prima facie case of liability with respect to the operator of the moving vehicle, unless the operator of the moving vehicle can come forward with an adequate, non-negligent explanation for the accident. See Smith v. Seskin, 49 A.D.3d 628, 854 N.Y.S.2d 420 (2d Dept. 2008); Harris v. Ryder, 292 A.D.2d 499, 739 N.Y.S.2d 195 (2d Dept. 2002)]. Further, when the driver of an automobile approaches another from the rear, he or she is bound to mainta in a reasonably safe rate of speed and control over his or her vehicle, and to exercise reasonable care to avoid colliding with the other vehicle. VTL § 1129(a) ("The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon the condition of the highway."); Taing v. Drewery, 100 A.D.3d 740, 954 N.Y.S .2d 175 (2d Dept. 2012). Drivers must maintain safe distances between thei r cars and cars in front of them and this rule imposes on them a duty to be aware 3 [* 3] 3 of 5 FILED: ROCKLAND COUNTY CLERK 04/30/2018 09:46 AM NYSCEF DOC. NO. 39 INDEX NO. 030394/2017 RECEIVED NYSCEF: 04/26/2018 of traffic conditions, including vehicle stoppages. Johnson v. Phillips, 261 A.D.2d 269, 271, 690 N.Y.S.2d 545 (1 st Dept. 1999). Defendants Weinstein and Williams established their prima facie entitlement to summary judgment in their favor. Plaintiff and co -defendant have failed to demonstrate a triable issue of fact as to any negligence on the part of defendants Weinstein and Williams which caused or contributed to the accident. Nor is there any merit to co-defendant's argument that the motion should be denied on the ground that discovery has not yet taken place. The party assertin g such argument must demonstrate that additional discovery might lead to relevant evidence or that the facts -essential to oppose the motion are exclusively within the knowled ge and control ?f the movant. See Emil Norsic & Son , Inc. V. LP. Transp . Inc., 30 A.D.3d 368, 815 N.Y.S.2d 736 (2d Dept. 2006); Rodriquez v. Farrell, 115 A.D.3d 929, 983 N.Y.S.2d 68 (2d Dept. 2014 ). No such showing has been made here and moving defendants are entitled to summary judgment in their favor. Defendant Lee Conklin's unopposed cross-motion for summary judgment must also be granted. Althoug h t here is a strong presumption of permissive use, Defendant has offered substantial evidence that co nsensual operation of t he veh icl e did not occur at the time of the accident. See Adamson v. Evans, 282 A.D.2d 527, 724 N.Y.S.2d 760 (2d Dept. 2001)(presumption of permissive use rebutted by substantial evidence through affidavit and documentary evidence that the motor vehicle in question was stolen at the time of the accident.); Britt v. Pharmacoloqic PET Servs. Inc., 36 A.D.3d 1039, 828 N.Y.S.2d 630 (3d Dept. 2007). No party has demonstrated a triab le issue of fact as to whether t he unidentified operator of Conklin's vehicle operated it with his permission or consent at the time of the subject occurrence. Accordingly, it is hereby ORDERED that Defendants Larry Wei nstein and Kevin Williams' Notice of Motion (Motion #1) for Summary Judgment and dismissal of t he Complaint and cross-claims is granted 4 [* 4] 4 of 5 INDEX NO. 030394/2017 FILED: ROCKLAND COUNTY CLERK 04/30/2018 09:46 AM NYSCEF DOC. NO. 39 . RECEIVED NYSCEF: 04/26/2018 -. in its entirety; and it is further ORDERED that Defendant Lee R. Conklin's Notice of Cross-Motion (Motion #2) for Summary Judgment and dismissal fo the Complaint is granted in its entirety; and it is further ORDERED that the above captioned action is marked disposed. The foregoing constitutes the Decision and Order of this Court on Motions# 1 and #2. ,/ Dated: New City, New York April 26, 2018 Supreme Court To: (via -NYSCE F- ) Harmon, Linder & Rogowsky, Esqs. For Pla intiff Martyn Toher Martyn & Ross i For Defendant Williams and Weinstein Saretsky Katz & Dranoff, LLP For Defendant Conklin 5 [* 5] 5 of 5

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