Gales v Catucci

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Gales v Catucci 2019 NY Slip Op 34302(U) January 22, 2019 Supreme Court, Dutchess County Docket Number: Index No. 2017-50347 Judge: Peter M. Forman 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] DUTCHESS COUNTY CLERK 01/25/2019 04:19 PM INDEX NO. 2017-50347 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 01/24/2019 SUPREME COURT OF THE STATE OF NE COUNTY OF DUTCHESS YORK GREGORY GALES, Plaintiff, DECISION AND ORDER Index No. 2017-50347 -againstJUDITH A. CATUCCI and JOSEPH M. CATUCCI I Defendants. FORMAN, J., Acting Supreme Court The Court read and considere ustice the following documents upon this motion: PAPERS NUMBERED NOTICE OF MOTION . . . . . . . . . . . . . . . . . . . . . . . AFFIRMATION . . . . . . . . . . . . . . . . . . . . . . . . . EXHIBITS . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 2 3-9 AFFIRMATION IN OPPOSITION . . . . . . . . . . . . . . EXHIBIT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 11 REPLY AFFIRMATION . . . . . . . . . . . . . . . . . . . . . . 12 By way of background, this an action to recover damages for personal injuries allegedly stained by the plaintiff as a result of an accident which occur ed on February 5, 2016. The collision between plaintiff's bic cle and defendants' vehicle occurred at the intersection of M ple Street and North Grand Avenue in Poughkeepsie, New York. Defendants have moved for su mary judgment dismissing this action, on the grounds that they re not liable for the accident -1 1 of 5 [*FILED: 2] DUTCHESS COUNTY CLERK 01/25/2019 04:19 PM NYSCEF DOC. NO. 26 INDEX NO. 2017-50347 RECEIVED NYSCEF: 01/24/2019 as a matter of law. For the reas ns stated herein, that motion is denied. Defendants have also moved or a trial preference, on the grounds that Judith C. the age of seventy years. For the reasons stated he motion is granted. DISCU SION On a motion for the test to be applied is whether triable issues of fact e or whether on the proof submitted judgment can be grante to a party as a matter of law (see Andre v. Pomeroy, 35 NY2d 3 1 [1974]). The movants must set forth a prima facie showing of e titlement to judgment as a matter of law, tendering suffici nt evidence to demonstrate the absence of any material issue of fact (see Alvarez v. Prospect Hospital, 68 NY2d 320 [1986]). nee the movants set forth a prima facie case, the burden of opponent of the motion to produc oing forward shifts to the evidentiary proof in admissible form sufficient to establish the existence of material issues of fact (see Zuckerman v. City of N NY2d 557 [1980]) . In support of their motion, defendants submit the deposition transcripts of plaintiff Gregory Gales and defendant Judith A. Catucci. Plaintiff testified that th intersection where the accident traffic light controlling the ccurred was green when he first 2 of 5 [*FILED: 3] DUTCHESS COUNTY CLERK 01/25/2019 04:19 PM INDEX NO. 2017-50347 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 01/24/2019 saw it (see Deposition of Plaint'ff at p 46 lines 17-19). the point that he first saw the From reen light up and unt il the point of the accident, plaintiff testified that he kept the traff ic light under continual observation (see Deposition of Plaintiff at p 46 lines 20-24). Plaintiff testified that the l ight remained green, until the pint he was "about to go righ t under it", then it turned yellow (see Deposition of plaintiff at pp 46-47 lines 25, 2-4). Defendant Judith A. Catucci estified that when she first observed the traffic light at iss e, she was approximately five to six car lengths away and it green (see Deposition of Defendant Judith A. Catucci at p 9 lines 13-16). Mrs. Catucci testified that the light remained green up and until the time of the accident (see Deposition of D fendant Judith A. Catucci p 49 lines 17 - 20). Upon further questi ning, the defendant re -affirmed her testimony concerning the colo of the traffic light by proclaiming that " ... I definitely had a green light" (see Deposition of Defendant Judith A. Catucci at p 52 lines 19-20) It is well established that he court's role in determining summary judgment motions is issue finding, not issue determination (see Sillman v. Twe tieth Century-Fox Film Corp., 3 NY2d 395 [1957] reargument denied by 3 NY2d 941). judgment is a drastic remedy, it Since summary hould not be granted where there is any doubt as to the exis ence of a triable issue (see -3- 3 of 5 [*FILED: 4] DUTCHESS COUNTY CLERK 01/25/2019 04:19 PM NYSCEF DOC. NO. 26 INDEX NO. 2017-50347 RECEIVED NYSCEF: 01/24/2019 Rotuba Extruders, Inc . v . Ceppos, 46 NY2d 223 when the existence of an issue o [1978)). Thus, fact is even arguable or debatable, summary judgment should be denied (see Stone v. Goodson, 8 NY2d 8 [1960 ) reargum nt denied by 8 NY2d 934). It is not the court's function on a motion for summary judgment to assess credibility (see Brown v. Kass, 91 AD3d 894 2012)). Summary judgment is ina of fact or credibility are raise [2 nd Dept ropriate where triable issues (id.) . Here, the defendants have failed to make a prima facie demonstration that they are entitled to summary judgment. Specifically, the conflicting dep sition testimony of the plaintiff and the defendant Catucci require an assessment of credibility to determine party had the green light at the time of the accident (see litano v. Sanderson, 2018 NY Slip Op 089 43 798 [2 nd Dept 2018); achingco v. Christ, 132 AD3d [2 nd Dept 2015)). Therefore, efendants' motion for summary judgment is denied without the ne d to consider the sufficiency of plaintiff 1 s opposition papers (see generally Coscia v . 938 Trading Corp., 283 AD2d 538 [2 nd Defendants also move for an rder, pursuant to CPLR 3403 (a) (4), for a special eference because defendant Judith Catucci is more than y years of age . Specifically, CPLR 3403 (a) (4) states that an ion "shall be entitled to a preference" when a party is 70 rs of age or older. -4 4 of 5 Given that [*FILED: 5] DUTCHESS COUNTY CLERK 01/25/2019 04:19 PM NYSCEF DOC. NO. 26 INDEX NO. 2017-50347 RECEIVED NYSCEF: 01/24/2019 the Legislature's use of the imp rative "shall" is mandatory, not permissive, this court lacks any discretion when deciding a motion for a trial preference ba ed upon the age of the pa r ties (see Campbell v. Kelly, 42 AD2d 01 [2 nd Dept 1973); Cruz v. Integrated Health Admin. Servs., Inc., 56 Misc3d 654 Queens County 2017]). Based upon the foregoing, ORDERED, that Defendants' [Sup Ct, i t is hereby tion for summary judgment i s denied; and it is further ORDERED, that Defendants' m tion for a tria l preference is granted; and it is further ORDERED, that counsel for all parties shal l appear for a pretrial conference on March 4, 2019 at 9:30 a.m. This constitutes the Decisio Dated: and Order of the Court. January 22, 2019 Poughkeepsie, New York HON. PETER M. FORMAN, AJSC TO: Sobo & Sobo, LLP John A. Del Duco I I I, Esq. Attorneys for Plaintiff One Dolson Avenue Middletown, New York 10940 Law Office of Thomas K. Moor Alyson M. Piscitelli, Esq. Attorneys for Defendants PO Box 2903 Hartford, Connecticut 06104 -5 5 of 5

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