Rivera v Hierro

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Rivera v Hierro 2019 NY Slip Op 33321(U) November 8, 2019 Supreme Court, New York County Docket Number: 153659/2017 Judge: Adam Silvera 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. [*FILED: 1] NEW YORK COUNTY CLERK 11/08/2019 03:03 PM NYSCEF DOC. NO. 82 INDEX NO. 153659/2017 RECEIVED NYSCEF: 11/08/2019 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. ADAM SILVERA PART Justice ----------------------------------------------------------------------------X IN DEX NO. 153659/2017 MOTION DATE 07/03/2019, 07/10/2019, 08/09/2019 MOTION SEQ. NO. 001 002 003 REBECCA RIVERA, Plaintiff, -v- IAS MOTION 22 FRANCISCO HIERRO, PORFILIO DIAZ, DECISION + ORDER ON MOTION Defendant. ---------------------------------------------------------------------------------X FRANCISCO HIERRO Third-Party Index No. 595533/2018 Plaintiff, -against- ERICA LUI, NICHOLAS LUI, SHAY DALAL Defendant. -----------------------------------------------------------------------------X The following e-filed documents, listed by NYSCEF document number (Motion 001) 31, 32, 33, 34, 35, 36,37, 38,39,40,41,42,43,44,45,46,47,48,49,59,60,61 were read on this motion to/for JUDGMENT-SUMMARY The following e-filed documents, listed by NYSCEF document number (Motion 002) 50, 51, 52, 53, 54, 55, 56, 57, 58 were read on this motion to/for JUDGMENT-SUMMARY The following e-filed documents, listed by NYSCEF document number (Motion 003) 62, 63, 64, 65, 66, 67,68,69, 70, 71, 72, 73, 75, 76, 77 were read on this motion to/for JUDGMENT-SUMMARY Before the Court is third-party defendants Nicholas Lui and Erica Lui's motion, motion sequence 001, for an Order to dismiss plaintiffs Complaint, the Third-Party Complaint and all CrossClaims; Defendant/Third-Party plaintiff Francisco Hierro's motion, motion sequence 002, for an order to dismiss plaintiffs Complaint and all cross claims against defendant Hierro; and 153659/2017 RIVERA, REBECCA vs. HIERRO, FRANCISCO Motion No. 001 002 003 1 of 5 Page 1of5 [*FILED: 2] NEW YORK COUNTY CLERK 11/08/2019 03:03 PM NYSCEF DOC. NO. 82 INDEX NO. 153659/2017 RECEIVED NYSCEF: 11/08/2019 defendant Shay Dalal's motion, motion sequence 003, for an Order to dismiss plaintiff's complaint. Motion sequence 001, 002, and 003 are all granted for the reasons noted below: This actions stems from a four-car motor vehicle accident that occurred on December 18, 2016, southbound on the FDR Drive at the Brooklyn Bridge Exit, in the County, City, and State ofNew York, when a vehicle operated by Porforio M. Diaz rear-ended a vehicle operated by defendant Shay Dalal which then struck Co-Defendants' vehicle which was caused to propel forward and strike the Hierro vehicle which was carrying plaintiff and led to her alleged serious lilJUry. "The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case" (Winegrad v New York University Medical Center, 64 NY2d 851, 853 [1985]). Once such entitlement has been demonstrated by the moving party, the burden shifts to the party opposing the motion to "demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action or tender an acceptable excuse for his failure ... to do [so]" (Zuckerman v City ofNew York, 49 NY2d 557, 560 [1980]). "A rear-end collision with a stopped vehicle, or a vehicle slowing down, establishes a prima facie case of negligence on the part of the operator of the rear-ending vehicle, which may be rebutted if that driver can provide a non-negligent explanation for the accident" (Baez v MM Truck and Body Repair, Inc., 151AD3d473, 476 [1st Dep't 2017]). Being propelled forward in a chain reaction collision is a non-negligent explanation for a rear-end motor vehicle accident (Arrastia v Sbordone, 225 AD2d 375 [1st Dept 1996] finding that "Inasmuch as there is no dispute that defendant brought her vehicle to a complete stop prior to the accident and was thereafter unexpectedly forced into plaintiff's car by a third, unrelated 153659/2017 RIVERA, REBECCA vs. HIERRO, FRANCISCO Motion No. 001 002 003 2 of 5 Page 2 of 5 [*FILED: 3] NEW YORK COUNTY CLERK 11/08/2019 03:03 PM NYSCEF DOC. NO. 82 INDEX NO. 153659/2017 RECEIVED NYSCEF: 11/08/2019 vehicle, plaintiff has raised no basis for an inference that defendant was negligent or the proximate cause of plaintiffs purported injuries in this matter"). In motion sequence 001, Co-Defendants Nicholas Lui and Erica Lui successfully argue that Diaz caused a chain collision when the Diaz vehicle struck the Dalal vehicle which then struck the Lui vehicle. Co-Defendants attach the affidavit of defendant Nicholas Lui in support of their motion (Mot, Exh 1). The motion is unopposed. Thus, Co-Defendants have demonstrated freedom from any liability for the accident at issue. Co-Defendants motion to dismiss the Complaint and any and all Cross-Claims against the Co-Defendants in the above action as no basis for liability exists against said defendants is granted. In motion sequence 002, Defendant/Third-Party plaintiff Francisco Hierro successfully argues that Diaz initiated the chain collision in which the Hierro vehicle was the last vehicle to be struck in the rear by the Lui vehicle. Defendant attaches his deposition in which he testified to being the lead vehicle that was struck in the rear by the Lui vehicle (Mot 002, Exh D). Defendant also attaches defendant Lui' s deposition in which Liu testified to having been pushed into the rear of the Hierro vehicle (id, Exh E). The motion is unopposed. Thus, defendant Hierro has demonstrated freedom from any liability for the accident at issue. Defendant's motion to dismiss the Complaint and any and all Cross-Claims against the defendant in the above action as no basis for liability exists against said defendant is granted. In motion sequence 003, defendant Dalal successfully demonstrates that there are no triable issues of fact as to defendant's liability. Defendant Dalal has demonstrated that his vehicle was struck by the Diaz vehicle and is thus not liable for the chain collision. Defendant attaches his own deposition, the deposition of defendant Nicholas Lui, the deposition of plaintiff, the deposition of defendant Hierro, and the deposition of defendant Diaz (Mot 003, Exh 153659/2017 RIVERA, REBECCA vs. HIERRO, FRANCISCO Motion No. 001 002 003 3 of 5 Page 3 of 5 [*FILED: 4] NEW YORK COUNTY CLERK 11/08/2019 03:03 PM NYSCEF DOC. NO. 82 INDEX NO. 153659/2017 RECEIVED NYSCEF: 11/08/2019 F,G,H,1,K). The motion is unopposed. Thus, defendant Dalal has demonstrated freedom from any liability for the accident at issue. Defendant's motion to dismiss the Complaint and any and all Cross-Claims against the defendant in the above action as no basis for liability exists against said defendant is granted. Accordingly, it is ORDERED that defendants Nicholas Lui and Erica Lui's motion for summary judgment for an Order to dismiss plaintiffs Complaint, the Third-Party Complaint and any and all CrossClaims against said defendants in the above action as no basis for liability exists against said defendants is granted; and it is further ORDERED that defendant Hierro's motion for summary judgment for an Order to dismiss the Complaint and any and all Cross-Claims against the defendant in the above action as no basis for liability exists against said defendant is granted; and it is further ORDERED that defendant Dalal's motion for summary judgment for an Order to dismiss the Complaint and any and all Cross-Claims against the defendant in the above action as no basis for liability exists against said defendant is granted; and it is further ORDERED that the complaint is dismissed in its entirety as against Nicholas Lui, Erica Lui, Francisco Hierro and Shay Dalal with costs and disbursements to said defendants as taxed by the Clerk of the Court, and the Clerk is directed to enter judgment accordingly in favor of said defendants; and it is further ORDERED that the action is severed and continued against the remaining defendant Porfilio Diaz; and it is further ORDERED that the caption be amended to reflect the dismissal and that all future papers filed with the court bear the amended caption; and it is further 153659/2017 RIVERA, REBECCA vs. HIERRO, FRANCISCO Motion No. 001 002 003 4 of 5 Page 4 of 5 [*FILED: 5] NEW YORK COUNTY CLERK 11/08/2019 03:03 PM NYSCEF DOC. NO. 82 INDEX NO. 153659/2017 RECEIVED NYSCEF: 11/08/2019 ORDERED that counsel for defendants Nicholas Lui and Erica Lui serve a copy of this order with notice of entry upon the County Clerk (Room 141B) and the Clerk of the Trial Support Office (Room 158), who are directed to mark the court's records to reflect the change in the caption herein; and it is further ORDERED that within 20 days of entry, counsel for defendants Nicholas Lui and Erica Lui shall serve a copy of this Decision/Order upon all parties with notice of entry. This constitutes the Decision/Order of the Court. 1 DATE CHECK ONE: ADAM SILVERA, J.S.C. CASE DISPOSED GRANTED D NON-FINAL DISPOSITION DENIED GRANTED IN PART APPLICATION: SETILEORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT 153659/2017 RIVERA, REBECCA vs. HIERRO, FRANCISCO Motion No. 001 002 003 5 of 5 D D OTHER REFERENCE Page 5 of 5

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