Shirley v Battista

Annotate this Case

Download PDF

Shirley v Battista 2019 NY Slip Op 34493(U) June 19, 2019 Supreme Court, Westchester County Docket Number: Index No. 57892/2018 Judge: John P. Colangelo 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: WESTCHESTER COUNTY CLERK 06/20/2019 09:25 AM NYSCEF DOC. NO. 36 INDEX NO. 57892/2018 RECEIVED NYSCEF: 06/20/2019 commence the the statutory statutory time time To commence period for appeals appeals as of of right right (CPLR (CPLR period 5513[a]), you you are advised advised to serve serve a a 5513[a]), copy of of this this order, order, with with notice notice of of copy entry, upon upon all parties. parties. entry, ) SUPREME COURT COURT OF THE THE STATE STATE OF NEW YORK SUPREME NEW YORK COUNTY OF WESTCHESTER WESTCHESTER COUNTY ' -------------------------------------------------------------------x ~--------------·--------------------·- ------------------------x STACEY SHIRLEY, SHIRLEY, . STACEY DECISION AND AND ORDER ORDER DECISION Plaintiff, Plaintiff, Index No. No. 57892/2018 57892/2018 Index (Action 1) (Action -against-against, ' FRANCO BATTISTA BATTISTA and CRISTINA CRISTINA BATTISTA BATTISTA FRANCO and . " . " Defendants. Defendants. · _____________________________________________ ~-----------------------x ----------------- ---------------------------.-----------------------x DEAN SMITH, SMITH, DEAN .rr Plaintiff, Plaintiff, Index No. No. 63227/2018 63227/2018 Index (Action 2) (Action2) -against-againstFRANCO BATTISTA BATTISTA and and CRISTINA CRISTINA BATTISTA BATTISTA FRANCO } } Defendants. l)efendants. ______________________________________________________ ---------.----x - -------------- ------------------------ ------------- ________ , -·-x COLANGELO, J. COLANGELO, The following following papers papers were were read read on Plaintiff's Plaintiffs mo_tions motions to join the ~hove above matters matters for The join the discovery discovery and trial, trial, and for partial partial Summary Summary Judgment Judgment on on the the issue issue of of liability liability as against against Defendants Defendants pursuant pursuant \o ~o CPLR CPLR §3212: S3212: Notice of Motion-AffirmationMotion-Affirmation- Exhibits Exhibits 1-7 Notice of Affirmation in Opposition-Exhibit Opposition-Exhibit A Affirmation Reply Reply . NYSCEF NYSCEF 19-27 19-27 NYSCEF28 NYSCEF 28 NYSCEF NYSCEF 32 Upon the foregoing foregoing papers Upon papers it is ORDERED ORDERED that that the the motion motion is disposed disposed of of as follows: follows: 1 [* 1] 1 of 5 FILED: WESTCHESTER COUNTY CLERK 06/20/2019 09:25 AM NYSCEF DOC. NO. 36 INDEX NO. 57892/2018 RECEIVED NYSCEF: 06/20/2019 Joinder of of Cases Cases for Discovery Discovery and and Trial Trial Joinder \\. .. Plaintiff Stacey Stacey Shirley Shirley ("Pla~ntiff') ("Pla~ntifr') moves moves this this court court for an Order Order pursuant to'CPLR Plaintiff pursuant to·CPLR ./ / ~602(a), joining above-captioned actions actions for the the purposes purposes of of discovery discovery and and trial. triaL Defendants Defendants §602(a), joining the above-captioned Franco Battista Battista and Cristina Cristina Battista Battista (Defendants) (Defendants) do not nofoppose Plaintiffs request, request, and Franco oppose Plaintiff's ~. . ~ accordingly, actions actions one one and and two two shall shall be joined of discovery discovery and and trial. triaL accordingly, joined for purposes purposes of Defendants do not not oppose oppose Plaintiff's Plaintiff s motion motion for summary summary judgment, solely to the the extent extent Defendants judgment, solely seeks an Order Order that, that, as a passenger passenger in the the vehicle vehicle operated operated by Dean Dean Smith, Smith, she bears bears no she seeks liability for the the accident. accident. (Opp.13). (Opp. ~3). liability support of of Plaintiff's Plaintiffs motion motion for summary summary judgment, Plaintiff has has submitted, submitted, inter inter alia, alia, judgment, Plaintiff In suppqrt Affirmation of of Moshe Moshe Borukh, Borukh, Esq., Esq., her her own own Affidavit Affidavit (PL Exh. Exh. 6), the the Police Police Accident Accident the Affirmation Report (PL (PI. Exh. Exh. 1) and and the the Affidavit Affidavit of of Dean Dean Smith Smith (Pl. (PL Exh.1). Exh. 1). According According to Plaintiff, Plaintiff, on Report October 29, 29,2017 approximately 9:30 9:30 PM, PM, she was was a passenger passenger in a vehicle vehicle bearing bearing license license October 2017 at approximately plate HBT6787 being being operated operated by Dean Dean Smith Smith on on the the southbound southbound Hutchinson Hutchinson River River Parkway. Parkway. plate HBT6787 vehicle owned owned by Defendant Defendant Franco Franco Battista Battista and operated operated by Defendant Defendant Cristina Cristina Battista Battista rearrearA vehicle ended the vehicle vehicle she was was riding riding in as the the vehicle vehicle she was was riding riding in slowed slowed down down for oncoming oncoming ended traffic. (Pl. (PL Exh. Exh. 6113-4). 6 ~~3-4). The The Police Police Accident Accident Report Report contains contains .a a statement statement of ofthe operator of of traffic. the operator vehicle 2, Defendant Defendant Cristina Cristina Battista, Battista, that that "vehicle "vehicle one one came came to a complete complete stop stop in the the left left lane lane vehicle was unable unable to avoid avoid striking striking the vehicle." vehicle." and she was Defendants oppose oppose the the instant instant motion motion and and argue argue that that the the question question of of Dean Dean Smith's Smith's Defendants liability much at issue, issue, as well applicability of doctrine. A liability is very very much well as the applicability of the emergency emergency doctrine. . '. \ photograph of the road Cristina Battista Battista after after the accident accident photograph of road conditions conditions taken taken by Defendant Defendant Cristina occurred is submitted submitted in support support of of Defendants' annexed to her her Affid:;wit occurred Defendants' opposition opposition and and annexed Affidavit (Def. 2 [* 2] 2 of 5 FILED: WESTCHESTER COUNTY CLERK 06/20/2019 09:25 AM NYSCEF DOC. NO. 36 INDEX NO. 57892/2018 RECEIVED NYSCEF: 06/20/2019 Exh. A). Defendant Defendant Cristina Cristina Battista Battista states states that that due to heavy heavy winds winds and and rain, rain, there there was was Exh. widespread flooding, flooding, and and traffic traffic condition condition were were very very slow. slow. ((Pl. ((PI. Exh. Exh. A 1[6). ~6). widespread The ;photograph ;photograph depicts depicts a very very dark dark and severely severely flooded flooded roadway, roadway, as ~ell well as a The maintenance vehicle with an amber amber light light that that is blocking blocking the the right right travel travel lane, lane, and and a worker worker who who maintenance vehicle with leaning over over the the guardrail, guardrail, using using a broom broom to sweep sweep water water into into the the drain. drain. (Id. (Id.~7). .is leaning 1[7). According to Defendant Defendant Cristina Cristina Battista, Battista, left left lane lane travel travel was was light light and and moving moving steadily. steadily. According noticed Plaintiff's Plaintiffs vehicle vehicle ahead ahead of of her her in the the left left lane, lane, still still moving. moving. Her Her headlights headlights and and. ~he noticed windshield wipers wipers were were on. Shortly Shortly after after first first noticing noticing Plaintiff's Plaintiffs vehicle; vehicle, another another vehicle vehicle that that windshield passing in the the opposite·direction opposite direction splashed splashed a large large volume volume of of water water over.the over the median median and was passing directly onto onto her her windshield windshield and prevented prevented her her from from seeing seeing anything. anything. Though Though she braked directly braked in response to the the splash, splash, she was was unable unable to see that that Plaintiff's Plaintiff s vehicle vehicle had had come come to a complete complete stop stop response and the the accident accident occurred. occurred. (Id. 1[8). ~8). · CPLR3212(b) states states in pertinent pertinent part part that that a motion motion for stµnmary sllmmary judgement "s,hall be CPLR3212(b) judgement "s.hall granted" if, upon upon all of of papers papers and and proof proof submitted, submitted, the the cause cause of of action action or defense defense shall shall be granted" established sufficiently sufficiently to warrant the the court court as a matter matter of of law law in directing directing judgement favor of of judgement in favor established to warrant any party" party" 361,364 (1974), (1974), the the Court Court of of Appeals Appeals stated: stated: In Andre Andre v Pomeroy, Pomeroy, 35 N.Y.2d N.y.2d 361,364 designed to expedite expedite all civil civil cases cases by elimim,1.ting eliminating from from the the Trial Trial "[ss]ummary ]ummary judgement judgement is designed \ Calendar claims claims which which can properly properly be resolved resolved as a matter matter of of law law ... ... when when there there is no genuine genuine Calendar issue to be resolved resolved at trial, case should issue trial, the case should be summarily summarily decided, decided, and and an unfounded unfounded reluctance reluctance employ the remedy swell the Trial Trial Calendar Calendar and and thus thus deny deny to other other litigants litigants to employ remedy will will only only serve serve to swell right to have claims promptly the right have their their claims promptly adjudicated." adjudicated." 3 [* 3] 3 of 5 INDEX NO. 57892/2018 FILED: WESTCHESTER COUNTY CLERK 06/20/2019 09:25 AM NYSCEF DOC. NO. 36 RECEIVED NYSCEF: 06/20/2019 The judgement motion prima facie The proponent proponent of of a summary summary judgement motion must must make make a prima facie showing showing of of entitlement entitlement to judgement judgement as a matter matter of of law law by tendering tendering sufficient sufficient evidence evidence to demonstrate demonstrate the the New York Medical Center, N. Y.2d 851, 853 absence absence of of material material issues issues of of fact. Weingrad Weingradv.v. New York Medical Center, 64 N.Y.2d (1986). been made, party opposi:t:ig (1986). Onct; Oncy such such showing showing has has been made, the the burden burden shifts shifts to the the party opposing the the motion motion to produce admissible proof sufficient produce admissible evidentiary evidentiary proof sufficient to establish establish the the existence existence of of material material issues issues of of fact that that require require a trial trial ofthe'action. of the' action. Alvarez Alvarez v. v.Prospect Prospect Hosp., Hosp., 68 N.Y.2d N.Y.2d 320 320 (1986). (1986). No No 'opposition 'opposition has has been been sub~itted subIl!itted by Defendant Defendant to the the motion. motion. well-established that that "[a] rear-end rear-end collision collision with with a stopped stopped or stopping stopping vehicle vehicle It is well-established creates prima facie facie case creates a prima case of of negligence negligence against against the the operator operator of of the the rear rear vehicle, vehicle, thereby thereby requiring requiring ' \ . that that operator operator to rebut rebut the the inference inference of of negligence negligence by providing providing a non-negligent non-negligent explanation explanation for Limoncelli, the the collision." collision." Williams Williams v. v. Spencer-Hall, Spencer-Hall, rt3 113 A.D.3d A.D.3d 759 (2d (2d Dept. Dept. 2014); 2014); Volpe v. v. Limoncelli, 74 A.D.3d Klopchin v. Masri, 45 A,D.3d Chepel v. A.D.3d 795 (2d (2d Dept. Dept. 2010); 2010); Klopchin v. Masri, A.D.3d 737 (2d (2d Dept. Dept. 2007); 2007);Chepel v. Meyers, Meyers, 306 A.D.2d A.D.2d 235 (2d (2d Dept. Dept. 200~); 2003); Tutrani Tutrani v. v. County County of of Suffolk, Suffolk, 10 N.Y.3d N.Y.3d 906,908 906,908 (2008); Phillips, 112 A.D.3d-872 (2008); Clarke Clarke v. v. Phillips, A.D.3d-872 (2d Dept. Dept. 2013). 2013). Where, Where, in opposition opposition to aprima aprima facie case facie case of of negligence negligence based based upon upon a rear~en<;l rear~end collision, collision, the the rear rear most most driver driver failed failed to raise raise a triable triable issue issue of of fact as to whether whether there there was was a a non-negligent non-negligent explanation explanation for the the happening happening of of the the accident or whether whether the the emergency emergency doctrine doctrine applied applied to the the circumstances circumstances of of the the accident, accident, accident summary judgment was properly granted. summary judgment was properly granted. See McLaughlin McLaughlin v. v. Lunn, Lunn, 137 A.D.3d A.D.3d 757, 757, 758 (2d (2d Dept. Dept. 2016). 2016). However, However, as the the Supreme Supreme Court, Court, Appellate Appellate Division Division Second Second Department Department has has stated, "[T]he "[T]he emergency emergency doctrine doctrine acknowledges acknowledges that confronted with stated, that when when an actor actor is confronted with a sudden sudden situation which which leaves deliberation and requires requires him him to ·and unanticipated unanticipated situation leaves little little or no time time for deliberation make a speedy speedy decision decision without alternative courses courses of of conduct, conduct, the actor actor may make without weighing weighing alternative may not be 4 [* 4] 4 of 5 FILED: WESTCHESTER COUNTY CLERK 06/20/2019 09:25 AM NYSCEF DOC. NO. 36 INDEX NO. 57892/2018 RECEIVED NYSCEF: 06/20/2019 liable for negligence negligence if iftheactions taken are reasonable reasonable and and prudent prudent when when evaluated evaluated in the the liable the actions taken context of of the the emerge?CY emergency conditions." conditions." Wu Kai Grossman, 133 A.D.3d A.D.3d 742 (2d (2d Dept. Dept. context Kai Ming Ming v. Grossman, 2015); (see (see Rivera v. New York City City Tr. Tr. Auth., 77N.Y.2d 322,327 322,327 (1991). (1991). 2015); Rivera v. New York Auth., 77N.Y.2d the present present case, case, Defendants Defendants have have raised raised a triable issue of of fact as to whether whether the the In the triable issue emergency doctrine doctrine applied applied in this this case case so as to relieve relieve Defendants Defendants of of liability liability for the the )happening happening emergency of the the accident. accident. of Accordingly, Plaintiffs Plaintiffs motion motion is granted granted to the the extent extent that, that, as a passenger passenger in the the vehicle vehicle Accordingly, operated by Dean Dean Smith, Smith, she bears bears no liability liability for the the accident accident. . In all other other respects, respects, the the motion motion operated is denied; hereby denied; and and it is hereby' ORDERED that that the the actions actions are joined the purpose purpose of of discovery discovery and and trial; trial; and and it is ORDERED joined for the further further ORDERED that that Plaintiffs Plaintiffs motion motion is granted granted to the the extent extent that, that, as a passenger passenger in the the ORDERED vehicle operated operated by Dean Dean Smith, Smith, she bears bears no liability liability for the the accident; accident; and and it is further further vehicle ORDERED ORDERED that that the the parties parties and counsel counsel are directed directed to appear appear in the the Settlement Settlement Conference Part, Part, courtroom courtroom 1600 1600 on July July 30, 2019. 2019. Conference The foregoing foregoing constitutes constitutes the the Decision Decision and Order Order of of the the Court. Court. The Dated: June June 19, 19,2019 Dated: 2019 White Plains, Plains, New York New York White 5 [* 5] 5 of 5

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.