Bascombe v Esack

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Bascombe v Esack 2019 NY Slip Op 34492(U) February 5, 2019 Supreme Court, Westchester County Docket Number: Index No. 55889/2018 Judge: Linda S. Jamieson 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. NO. 55889/2018 FILED: WESTCHESTER COUNTY CLERKINDEX 02/15/2019 05:1 NYSCEF DOC. NO. 29 Disp _ _ Dec_x_ of right (CPLR § 5513 [al), you are advised to 02/15/2019 serve a RECEIVED NYSCEF: copy of this order, with notice of entry, upon all parties. Seq. No._1_ Type SJ SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF WESTCHESTER PRESENT: HON. LINDA S. JAMIESON --------------------------------------x LORETTA BASCOMBE, Plaintiff, Index No. 55889/2018 -against- DECISION AND ORDER ANGELA ESACK, DOMINIC STEELE and AMERICAN UNITED TRANSPORTATION INC., Defendants. --------------------------------------x The following papers numbered 1 to 4 were read on this motion: Notice of Motion, Affidavit, Affirmation and Exhibits 1 Affirmation in Opposition 2 Affidavit, Affirmation and Exhibits in Opposition' 3 Reply Affirmation 4 Defendant Esack brings her motion for summary judgment seeking to be dismissed from this car accident case. are not in dispute. The facts Esack was parked outside plaintiff's apartment building at the time of the accident, waiting for plaintiff to get into the car so they could get on their way to an event together. 1 Plaintiff sat down initially, but then got Exhibits must be tabbed. Counsel is directed to review the Part Rules. [* 1] 1 of 4 NO. 55889/2018 FILED: WESTCHESTER COUNTY CLERKINDEX 02/15/2019 05:1 NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 02/15/2019 out of the car, leaving the door open, so that she could adjust the seat. While she was standing there, defendant Steele hit Esack's car. The open door hit plaintiff and knocked her down. This establishes Esack's prima facie case. 295 A.D.2d 394, 394, 743 N.Y.S.2d 171, 172 Davis v. Quinones, (2d Dept. 2002) ("A rear-end collision with a stopped automobile creates a prima facie case of negligence with respect to the operator of the moving vehicle and imposes a duty on that operator to provide a non negligent explanation as to how the accident occurred. Conclusory allegations are insufficient to rebut the prima facie showing of negligence created by the unexplained rear-end collision."). In response, Steele and American United Transportation Inc. offer nothing but a request for discovery, without suggesting what facts might be uncovered thereby. "The mere hope that evidence sufficient to defeat the motion may be uncovered during the discovery process is insufficient" to defeat a motion for summary judgment. Spatola v. Gelco Corp., N.Y.S.2d 101, 102 (2d Dept. 2004). 5 A.D.3d 469, 470, 773 For her part, plaintiff suggests that defendant was parked illegally, arguing that there are thus questions of fact present. In support of her argument, she submits an exhibit of a photo of the street - which does not show any legible street sign prohibiting parking there. Even if there were a "No Parking" sign in front of the building, it would 2 [* 2] 2 of 4 NO. 55889/2018 FILED: WESTCHESTER COUNTY CLERKINDEX 02/15/2019 05:1 NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 02/15/2019 not be illegal for defendant to have parked there, since VTL § 129 defines "No Parking" to allow for temporary standing for the purposes of the loading or unloading of merchandise or passengers. Moreover, a review of the certified police report demonstrates that the police officer who described the accident did not mention that Esack was parked illegally. Plaintiff's "mere speculation. without evidentiary support in the record, is insufficient to defeat a motion for summary judgment." Mehring v. Cahill, 271 A.D.2d 415, 415-16, 707 N.Y.S.2d 125, 127 (2d Dept. 2000). Accordingly, the motion is granted in its entirety, and defendant Esack is dismissed from the action. The remaining parties are directed to appear for Preliminary Conference in the Preliminary Conference Part, Courtroom 800, on March 11, 2019 at 9:30 a.m. The foregoing constitutes the decision and order of the Court. Dated: C White Plains, New York February S::, 2019 ~~ Justice of the Supreme Court 3 [* 3] 3 of 4 NO. 55889/2018 FILED: WESTCHESTER COUNTY CLERKINDEX 02/15/2019 05:1 NYSCEF DOC. NO. 29 To: RECEIVED NYSCEF: 02/15/2019 Leav & Steinberg, LLP Attorneys for Plaintiff 75 Broad St., #1601 New York, NY 10004 Law Offices of John Trop Attorneys for Defendant Esack 73 Market St., #375 Yonkers, NY 10710 Baker, McEvoy et al. Attorneys for Defendants Steele and American United 1 Metrotech Center Brooklyn, NY 11201 4 [* 4] 4 of 4

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