Vaccaro v Francolopez

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Vaccaro v Francolopez 2019 NY Slip Op 34638(U) February 1, 2019 Supreme Court, Westchester County Docket Number: Index No. 57032/2018 Judge: Terry Jane Ruderman 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 02/01/2019 04:42 PM NYSCEF DOC. NO. 108 INDEX NO. 57032/2018 RECEIVED NYSCEF: 02/01/2019 ofright appeals as of To commence right time for appeals statutory time the statutory commence the (CPLR 5513[a]), 55 13(a]), you are advised advised to serve serve a copy copy you are (CPLR parties. upon all parties. of this Of entry, entry, upon notice 9f with notice order, with this order, of YORK NEW YORK TE OF NEW SUPREME COURT COURT OF THE THE STA STATE SUPREME COUNTY WESTCHES TER COUNTY OF WESTCHESTER ---x ________ ------- --------------"--------..,---------------x - . -------------------- .-----_-.-------------------------------------------VACCARO, ANTHONY ANTHONY VACCARO, and ORDER DECISION ORDER DECISION and Nos. 1-3 Motion Sequence Nos. Motion Sequence Index 57032/2018 No. 57032/2018 Index No. Plaintiff, Plaintiff, -against-against- TRUCK RYDER TRUCK OMARLINFRANCOLOPEZ, OMARLIN FRANCOLO PEZ, RYDER RENTAL INC., INC., ANHEUSER BUSCH d/b/a d/b/a -.' ANHEUSER BUSCH RENTAL INC., BUDWEISER SONS INC., BERTOLINE & SONS BUDWEISER and D. BERTOLINE Defendants. Defendants. __________________________________________ ~ --------------x" ------------------------------------------·------------------- -----x RUDERMAN, RUDERMAN , J. summary motion for summary plaintiff'ss motion with plaintiff The following following papers connection with considered in connection were considered papers were defendant ·the cross-motion 1), judgment against defendants of liability liability (sequence (sequence 1\ -the cross-motion by defendant issue of on the issue defendants judgment against . ,,. . ., summary ("Anheuser-B usch") for summary d/b/aBudweis Anheuser-Busch, Budweiserer ("Anheuser:-Busch") Busch d/b/a Anheuser Busch s/h/a Anheuser LLC s/h/a ch, LLC Anheuser-Bus the and the (sequence 2), and it 1 (sequence against it) cross-claims against judgment and any cross-claims complaint and plaintiff's complaint dismissing plaintiffs judgment dismissing Rental Inc. ("Ryder") Truck Rental Ryder Truck cross-motion ("Ryder") and D. Francolopez, Ryder Omarlin Francolopez, defendants Omarlin cross-motion by defendants Ryder as against Bertoline Sons, Inc., for summary summary judgment dismissing the complaint complaint as against Ryder judgment dismissing Berto line & Sons, .L: (sequence 3): (sequence Papers Papers A -D Exhibits A-D Notice Affirmation, Exhibits Motion, Affirmation, of Motion, Notice of A-L Anheuser-Busch of Cross-Motion Cross-Motion, , Affirmation, Affirmation, Exhibits Exhibits A"Notice of Anheuser-Bu sch Notice Exhibit A -_ Affirmation, Exhibit Ryder Cross-Motion , Affirmation, of Cross-Motion, Notice of Truck Notice Ryder Truck Plaintiffs Affidavit Affidavit in Opposition Opposition to Anheuser-Bus Anheuser-Buschch Cross-Motion Cross-Motion Plaintiff's Exhibits A B Exhibits Cross-Motion Ryder Cross-Motion Plaintiffs Reply Reply Affirmation Opposition to Ryder Affirmation & Opposition Plaintiff's Numbered Numbered 1 2 33 4 5 withdrawn been withdrawn has been IThe of Anheuser-Busch's cross-motion relating discovery has relating to discovery Anheuser-Bu sch's cross-motion branch of The branch (see NYSCEF poe. 83). NYSCEF poc. 1 1 [* 1] 1 of 6 FILED: WESTCHESTER COUNTY CLERK 02/01/2019 04:42 PM NYSCEF DOC. NO. 108 INDEX NO. 57032/2018 RECEIVED NYSCEF: 02/01/2019 6 7 Affirmation Anheuser-Busch Reply Affirmation Anheuser-Busch Reply Affirmation Ryder Truck Truck Reply Reply Affirmation Ryder Vaccaro plaintiff Anthony This is an action action for personal injuries allegedly allegedly sustained sustained by plaintiff Anthony Vaccaro personal injuries This driving was driving that he was asserts that Plaintiff asserts on July collisio~. Plaintiff two-vehicle collision. of a two-vehicle result ofa 2017 as a result July 25, 2017 York, New York, Ossining, New Avenue in Ossining, Clinton Avenue of Clinton westbound intersection of near the intersection Avenue near Croton Avenue westbound on Croton vehicle rear by a vehicle the rear was struck vehicle was slowing struck in the when his vehicle him, when o_f him, front of traffic in front down for traffic slowing down Bertoline. & Sons defendant D. Bertoline. Sons Inc. and and leased by defendant Rental, leased Truck Rental, Ryder Truck defendant Ryder owned by defendant · owned Anheuser-Busch. who was allegedly operated by defendant defendant Omarlin OmarlinFrancolopez, allegedly empioyed employed by Anheuser-Busch. Francolopez, who operated October York County This action action was originally originally<commenced County Supreme Supreme Court Court in October New York commenced in New This was Busch was by defendant venue motion 2017, but Court when when a venue motion by defendant Anheuser Anheuser Busch this Court transferred to this was transferred but was 2017, issue of issue note of order or note readiness order trial readiness but no trial granted on April proceeded, but has proceeded, Discovery has 2018. Discovery April 10, 2018. granted of yet. have filed as of been filed have been of issue of defendants on the issue against all defendants Plaintiff summary judgment judgment against moves for summary now moves Plaintiff now Bertoline & Sons Rentallhc., Truck Rental liability. Omarlin Francolopez, Inc., and and D. Bertoline Sons Ryder Truck Francolopez, Ryder Defendants Omarlin liability. Defendants judgment premature, and cross-move Inc. oppose oppose summary summary judgment cross-move for summary summary judgment liability as premature, judgment on liability plaintiff's dismissal of of the claims claims against Ryder. Defendant Defendant Anheuser-Busch also opposes opposes plaintiffs Anheuser-Busch also against Ryder. dismissal judgment dismissing motion as premature, and cross-moves cross-moves for summary dismissing the claims claims against against it. summary judgment premature, and motion Analysis Analysis Liability Summary Judgment Judgment on Liability Summary judgment on the right to summary Plaintiff showing ofa summary judgment ofa right prima facie showing made a prima Plaintiff has made that struck vehicle that issue against the driver, driver, possessor owner of of the vehicle struck his possessor and owner ofliability against issue ofliability report police accident vehicle from behind. This showing showing was made certified copy copy of of the police accident report with a certified made with behind. This vehicle from affidavit describing describing the the accident, accident. plaintiff's affidavit and plaintiffs 2 [* 2] 2 of 6 FILED: WESTCHESTER COUNTY CLERK 02/01/2019 04:42 PM NYSCEF DOC. NO. 108 INDEX NO. 57032/2018 RECEIVED NYSCEF: 02/01/2019 a "A rear-end rear-end collision collision with with a stopped stopped or stopping stopping vehicle vehicle creates creates a prima prima facie case case "A a imposes and vehicle moving of negligence negligence with with respect respect to the operator.of operator of the moving vehicle and imposes of providing a negligence ·by duty on on that operator to rebut inference of of negligence by providing rebut the inference that operator duty lead the lead of driver the that claim A nonnegligent explanation for collision. claim that driver of the collision. the f<:>_r explanation nonnegligent the rebut vehicle made made a sudden sudden stop, stop, standing standing alone, alone, is insufficientto insufficientto rebut the vehicle Dept AD3d 892, 09 AD3d Aghaabdul, I109 presumption of negligence" (Robayo v Aghaabdul, 892, 893 [2d Dept negligence" (Robayo presumption of · omitted]). citations and marks 2013] [internal quotation marks and citations omittedD. quotation [internal 2013] matter of judgment as· "the plaintiff established his facie entitlement entitlement to judgment as a matter of law law prima facie his prima plaintiff established Robayo, "the In Robayo, by submitting submitting evidence evidence that that the the defendant's defendant's vehicle vehicle struck struck his vehicle vehicle in the the rear rear as the the plaintiffs plaintiffs his plaintiff submitted ). _Similarly, here, it" Jid. vehicle slowing down fr0!1t of of it" ~(id.).Similarly, here, plaintiff submitted his iri frop.t traffic_in down for traffic was slowing vehicle was was slowing he was rear.as he the· rear'as him in the own affidavit affidavit describing describing how Ryder vehicle struck him slowing down, down, vehicle struck the Ryder how the own as well well as a certified certified copy copy of of a police police report report containing containing a statement statement ·made made to the the reporting reporting officer officer behind [plaintiff's westbound behind traveling westbound by defendant defendant Francolopez, effect that "[w]as traveling [plaintiff's that he "[w]as the effect Francolopez, to the brakes were vehicle] attempted to reduce speed, however the air brakes were not not 'full' 'full' and and did not not however the reduce [his] speed, vehicle] and attempted respond immediately, immediately, causing causing the the collision." collision." Plaintiff's Plaintiff's evidence evidence suffices suffices to create create a primafacie prima facie respond not silbmitted have not showing ofFrancolopez's of Francolopez's negligence and defendants defendants have submitted evidence evidence establishing establishing a neglig~nce and showing non-negligent explanation. explanation. non-negligent This is not not a situation situation in which which summary summary judgment issue of of liability liability must must be judgment on the issue This judgment that a summary who contends denied because "A party contends that summary judgment party who premature. "A motion is premature. the motion because the denied ; motion is premature required to ·demonstrate demonstrate that that .discovery discovery might might lead lead to relevant relevant evidence" evidence" premature is required motion or hope or mere hope omitted]). "The 2011] [citation (Cortes v Whelan, 83 AD3d Dept 2011] [citatiOllomittedD. "The mere 763, 764 [2d Dept AD3d 763, (Cortes uncovered may be uncovered judgment may motion for summary speculation that evidence sufficient sufficient to defeat defeat a motion summary judgment that evidence speculation during the the discovery discovery process process is insufficient insufficient to deny deny the the motion" motion" {id). (id.). "Before "Before a party party can can defeat defeat during discovery, he -' unconducted discovery, a motion for summary summary judgment of facts facts due due to unconducted ignorance of claiming ignorance judgment claiming motion for. . show that that he [[or has' made made reasonable steps to di~cover di~cover these these facts facts and and that that the reasonable steps or she] has must show or she] must [[or . Hemmes, 298 AD2d facts sought sought would would give give rise rise to a a triable triable issue" issue" (Gillinder (Gillinder v Hemmes, AD2d 493 (2d [2d Dept Dept facts 3 [* 3] 3 of 6 FILED: WESTCHESTER COUNTY CLERK 02/01/2019 04:42 PM NYSCEF DOC. NO. 108 INDEX NO. 57032/2018 RECEIVED NYSCEF: 02/01/2019 \.\,_ justify opposition 2002]). The The record record here here fails to show show that that facts essential essential to justify opposition to the motion motion on 2002]). the exclusive they are.in the issue of of defendants' defendants' liability liability may exist but cannot be stated stated as they are in the exclusive but c~otbe may exist the issue knowledge of of the the other other party._ party. Indeed, defendants have have failed failed to show show what what additional additional facts Indeed, defendants knowledge that the fact that Therefore, the knowledge. Therefore, their knowledge. regarding the sequence of of events events is not not within within their the sequence regarding the issue judgment on discovery is not complete does does not alter plaintiff erititlement to summary summary judgment on the issue plaintiff's_s entitlement not_ alter not complete discovery ' . \ of liability. liability. of Amendment . Ryder's Claim under Graves Amendment under the Graves Ryder's Claim vicariously liable negligent ':\'Ould was negligent Ordinarily, the the owner owner of of a vehicle driver was would be vicariously liable whose driver vehicle whose Ordinarily, ·, under Vehicle Vehicle and and T~affic,Law Traffic_Law § S 388. However, However, Ry~er Ryder contends contends that that it is entitled entitled to dismissal dismissal of of under the Graves referred to as the claim claim against against it under federal statute statute gener~ly generally referred as the Graves amendment, amendment, tµe foderal under the which creates an exception exception to an owner's owner's vicarious·· vicarious liability liability where where the the vehicle vehicle owner owner is in the the which creates business of of renting renting or leasing leasing motor motor vehicles: vehicles: business I/ not person ... to a person vehicle toa the vehicle "[The] owner owner of of a motor leases the ... shall shall not rents or leases that rents vehicle that motor vehicle "[The] being of reason by there9f, liable under under the law of any State State or political political subdivision subdivisionthere9f, reason of being law of be liable property·tliat persons or property owner of of the the vehicle vehicle ... ... , for harm harm to persons that results results or arises arises out out of of · the owner if lease, or rental the of period the during vehicle the use, operation;: possession of the vehicle during the period ofthe rental lease, if the of possession or the use, operation;: (l) the the owner owner ... ... iis 'is engaged engaged in the the trade trade or business business of of renting renting or leasing leasing motor motor (1) vehicles; and vehicles; and or an there is no negligence negligence or cd.minal criminal wrongdoing wrongdoing on the part part of of the ·owner owner ((or (2) there affiliate of of the the owner)" owner)" affiliate 2008]). Dept 2008]). USC S 30106; 30106; see Gr:aham Graham v Dunkley, 50 ADJ_d· AD3d' 55 [2d Dept Dunkley, ?0 (49 USC§ the that it is "engaged prima facie Ryder submitt~dsufficient nt evidence evidence to establish establish prima facie that "engaged in the has submitt~d.sufficie Ryder has . ' trade or business business of of renting renting or leasing leasing motor motor vehicles''. vehicles" (id). (id.). However, However, with with regard regard to the the second second trade o~ negligence on was no negligence there, was that there requirement for application of the namely, ~amely, that amendment, Graves amendment, the Graves application ,of ~equirement , . v was that it was the part of the owner, Ryder's Ryder's submissions submissions "failed "failed to conclu~ively conclu~ively establish establish that vehicle's owner, the vehicle's part of .' . Anglero ~.Hanif, not negligent negligent in the maintenance maintenance of of the the vehicle, vehicle, as alleged" alleged" (;ee (see Anglero v Hanif, 140 AD3d AD3d 905,. 905, not 4 [* 4] 4 of 6 r FILED: WESTCHESTER COUNTY CLERK 02/01/2019 04:42 PM NYSCEF DOC. NO. 108 INDEX NO. 57032/2018 RECEIVED NYSCEF: 02/01/2019 reported in Francolopez' s statement, 906-907 statement, as reported given Francolopez's particularly so given This is particularly 2016]). This Dept 2016]). 906-907 [2d Dept brakes. the air brakes. with the problem with had a problem the that he had report, that accident report, police accident the police summary cross-motion for summary this cross-motion Moreover, argues that essential to oppose oppose this that facts essential plaintiff argues Moreover, plaintiff ,' . their without their of defendants, control of and control ju~gment exclusively within defendants, and and without knowledge and within the knowledge ju1gment are exclusively maintenance of non-negligenc claim of depositions, he cannot adequately respond Ryder's claim non-negligence e in its maintenance respond to Ryder's cannot adequately depositions, rearthe rearexplanation for the had a non-negligent of its truck. truck. Unlike Unlike the issue issue of whether defendant non-negligent explanation defendant had of whether of of issue of the issue discovery, on the need for discovery, valid need end claim .a valid not claim.a could not defendants could which defendants collision, for which end collision, defendants discovery from basis to seek viable basis Ryder's seek discovery from defendants has a viable plaintiff has negligence, plaintiff possible negligence, Ryder's possible issue. that issue. merits of before court finally finally determines determines the merits of that before the court Judgment Anheuser-Busch's Cross-Motion for Summ'ary Summary Judgment Anheuser-Bu sch's Cross-Motion general counsel, Anheuser-Busch submits an affidavit assistant general counsel, by Kristi. Byrne, its assistant affidavit by-I<ristiByrne, Anheuser-Busch submits sch asserting that Bertoline & Sons is an independent independent distributor distributor of of Anheuser-Bu Anheuser-Busch Inc;is Sons Inc; that D. Bertoline asserting Francolopez. nor employed products, that neither owned owned the the s~bject subject vehicle vehicle nor employed Francolopez. Anheuser-Busch neither that Anheuser-Busch products, facts because facts premature because motion is premature the motion However, that the protests that plaintiff protests well, plaintiff issue as well, this issue However, on this rI control knowledge and control the knowledge within the ,- essential exclusively within claims are exclusively Anheuser-Bu sch's claims oppose Anheuser-Busch's essential to oppose Anheuser-Bu sch claim against of Anheuser-Busch. adds that some basis against Anheuser-Busch maintaining the claim basis for maintaining that some Anheuser-Busch. He adds of allegation the allegation admitted the which it admitted in which answer filed Inc., in Rental, Inc., Truck Rental, Ryder Truck filed by Ryder presented by the answer is presented Busch d/b/a Anheuser Busch vehicle to Anheuser motor vehicle of the complaint stating stating that Ryder leased subject motor d/b/a the subject leased the that Ryder the complaint . of ,,,' plaintiff affidavit, plaintiff his affidavit, that in his claim is that Budweiser. Furthermore, Furthermore, an additional additional basis basis for the the claim Budweiser. depicted on it. logo depicted had the Budweiser asserted that that the truck rear-ended hiin him had Budweiser logo that rear-ended truck that asserted favorable every favorable and every plaintiff, and When favorable to plaintiff, most favorable light most the light viewed in the evidence is v~ewed the evidence When the . . 2016]), Dept 2016]), 977, 979 [2d Dept AD3d 977, inference Gardella v Remizov, Remizov, 144 AD3d him (see Gardella afforded to him inference is afforded ' . must be Anheuser-Busch's summary judgment dismissing the complaint complaint as against against it must judgment dismissing motion for summary Anheuser-Bu sch's motion 5 [* 5] 5 of 6 FILED: WESTCHESTER COUNTY CLERK 02/01/2019 04:42 PM NYSCEF DOC. NO. 108 INDEX NO. 57032/2018 RECEIVED NYSCEF: 02/01/2019 denied without without prejudice renewal upon completion of of discovery. discovery. denied prejudice to renewal upon the completion Based upon upon the the foregoing, foregoing, it is hereby, hereby, Based ORDERED that that the motion motion by plaintiff plaintiff fOr issue of of liability liability ORDERED for summary summary judgment judgment on the the issue ,. f defendants (sequence (sequence 1) is granted, granted, with with the proviso defendants Ryder Truck Rental · against against defendants proviso that that defendants Ryder Truck Rental Inc and Anheuser Anheuser Busch Busch may may again again seek seek summaryjudgment summary judgment dismissing dismissing the the claims claims against against them; them; further and it is further ORDERED without prejudice prejudice to ORDERED that that cross-motions cross-motions sequence sequence 2 and 3 are denied denied without torenewal . . renewal following the completion completion of of discovery, discovery, and it is further further following ORDERED that that the parties parties shall shall appear, appear, as previously directed, on Tuesday, Tuesday, March March 5, ORDERED previously directed, { ...,., 2019 at 9:30_ 9:30, a.m. in the Compliance Compliance Part Part of of the Westchester WeStchester Supreme Supreme Court Court in the Courthouse Courthouse 2019 located at 111 Dr. MartinLuther York, 10601. Martin Luther King King Jr. Boulevard, Boulevard, White White Plains, Plains, New New York, located This constitutes constitutes the Decision and Order Order of ofthe Court. the Court. This the Decision ,- Dated: White White Plains, Plains, New Dated: New York York _L_, 2019 2019 February February .L, ~HON.T 6 [* 6] 6 of 6 Y JA . RUDERMAN, J.S.C. .

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