Ramme v Giugliano

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Ramme v Giugliano 2019 NY Slip Op 34673(U) July 8, 2019 Supreme Court, Suffolk County Docket Number: Index No. 601940/2018 Judge: Joseph A. Santorelli 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. INDEX NO. 601940/2018 FILED: SUFFOLK COUNTY CLERK 07/09/2019 12:16 PM NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 07/09/2019 .ORIGINAt ORIGIN.At SHORTFORMORDER' sHORTFORMORDER'.'· .. - ··; 601940/2018 . INDEX No. 601940/2018 -INDEX CAL No. CAL No. - SUPREME COURT COURT - STATE STATE OF NEW YORK SUPREME NEW YORK LA.S. PART PART 10 - SUFFOLK SUFFOLK COUNTY COUNTY I.A.S. PRESENT: PRESENT: MOTION DATE DATE 4-12-19 4-12-19 MOTION SUBMIT DATE DATE 6-27-19 SUBMIT 6-27-19 Mot. Mot. Seq. # 01 - MG MG #02-MG # 02 - MG JOSEPH A. SANTORELLI __ Hon. -~J~O~S=E=P=H~A=·~S=AN~T~O=RE~L~L_I Justice of of the the Supreme Supreme Court Court Justice -------------------------------------------------------------X -------------------------------------------------------------X LEONICK LAW, PLLC PLLC LEONICK ELIZABETH RAMME, RAMME, ELIZABETH Attorneys for for Plaintiff Plaintiff Attorneys 382 382 Larkfield Larkfield Road Road East Northport, Northport, New New York York 11731 11731 East Plaintiff, Plaintiff, OFFICE OF OF JENNIFER JENNIFER S. ADAMS LAW OFFICE -against-against- Attorneysfor Defendant Attorneys for Defendant One Executive Executive Boulevard, Boulevard, Suite Suite 280 280 One Yonkers, New New York York 10701 10701 Yonkers, SHEILA E. GIUGLIANO, GIUGLIANO, SHEILA Defendant. Defendant. ----------------------------------------------------------x --------------------------·----------X SHEILAE. GIUGLIANO, GIUGLIANO, SHEILAE. TAMBASCO RUSSO & TAMBASCO Attorneysfor Third Party Party Defendant Defendant Allison Allison E. Ramme Ramme Attorneys for Third Broad Hollow Hollow Road, Road, Suite Suite 300 300 115 Broad Melville, New York 117 11747 Melville, New York 47 /- -( 1 Third-Party Plaintiff, Plaintiff, Third-Party -against-againstALLISON E. RAMME, RAMME, ALLISON Third-Party Defendant. Defendant. Third-Party ----------------~--~---------------------------~-------------X --------------------------------------------. -------------X Upon the following following papers papers numbered numbered I to to....1L read on this this motion motion for summary summary judgment; Notice of of Motion/ Motion/ Order Order Upon ....11_ read judgment; Notice Show Cause Cause and and supporting supporting papers papers I - 15 (#01); (#01); Notice Notice of of Cross Cross Motion Motion and and supporting supporting papers papers 16 - 28 (#02) (#02) ; Answering Answering to Show Affidavits and and supporting supporting papers papers 29 - 33 (#01) (#0 I) ; Replying Replying Affidavits Affidavits and and supporting supporting papers papers 34 - 41 4 L (#01) (#0 I) ; Othe1 Orl,el _, (and _, (and Affidavits ailel counsel i11 in support support a:ud and opposed after hell1ing hea:1 ing coum;el opposed to the lftotion)it motion) it is, third-party defendant, defendant, Allison~. The third-party Allison E_. Ramme, Ramme, moves moves for an order order granting granting summary summary judgment judgment dismissing the third-party Sheila E. and dismissing third-party complaint complaint against against her. The defendant/third-party defendant/third-party plaintiff, plaintiff, Sheila Giugliano, opposes opposes this Giugliano, this application. application. The The plaintiff plaintiff cross cross moves moves for an order order granting granting partial partial summary summary judgment of liability. judgment on the issue issue of liability. There There was was no opposition opposition to the cross cross motion. motion. A motion summary judgment "shall be supported of the pleadings pleadings and motion for summary judgment "shall supported by affidavit, affidavit, by a copy copy of other available available proof, such as depositions depositions and written by other proof, such written admission. admission. [* 1] 1 of 4 \\ FILED: SUFFOLK COUNTY CLERK 07/09/2019 12:16 PM NYSCEF DOC. NO. 40 INDEX NO. 601940/2018 RECEIVED NYSCEF: 07/09/2019 .. ....-. Ramme v Giugliano Ramme Giugliano Index Index # 601940/201 601940/20188 Page2 Page 2 The proponent proponent of of a summary judgment motion. motion_ must must make. The summary judgment facie sho~i~g sho~i~g of of entitlement make_ a ~rima ~rima facie entitlement to judgment as a matter to judgment matter of of law, tendering tendering sufficient sufficient evidence eVIdence to ehmmate elImInate any matenaiissues of fact fact any matenal issues of from the case ofAnimals Animals vvAssociate Fur Mfrs., 46 ~Y2d from the case (Friends of Associatedd Fur 79? [1979]). [1979]). NY2d 10~5, 41.6 41_6 NYS2d NYS2d 79? To judgment it must appear that that no matenal To grant grant summary summary judgment must clearly clearly appear and tnable Issue of fact ISpresented material and tnable issue of is presented (Sillman vv Twentieth Century-F ox Film Film Corporatio Century-Fox Corporation, 395, 165 NYS~d [1957]). Once Once n, 3 NY2~ NY2~ 395, NYS~d 498 498 [1957]). such the burden then shifts such proof proof has been been offered, offered, the burden then shifts to the opposmg OppOSIngparty, who, In order to defeat party, who, m order defeat the the motion for summary judgment, must proffer evidence motion summary judgment, must proffer evidence in admissible admissible form form ... ... and must "show facts facts must "show sufficient of fact" sufficient to require require a trial trial of of any issue issue of fact" CPLR3212 CPLR3212 [b]; Gilbert Frank Frank Corp. Corp. vv Federal Insurance Co., 70 NY2d 525 NYS2d NYS2d 793,520 Insurance Co., NY2d 966, 966,525 793,520 NE2d [1988]; Zuckerman York, NE2d 512 [1988],· Zuckerman vv City of ofNew York, 49 NY2d NY2d 557,427 NYS2d 595 [1980]). The opposing 49 557, 427 NYS2d [1980]). The opposing party assemble, lay bare and reveal his party must must assemble, bare reveal his proof matters set forth in his pleadings proof in in order order to establish establish that that the the matters pleadings are real and and capable of being capable of being established Liberty Bus Bus Co., 79 AD2d AD2d 1014, established (Castro v Liberty 1014,435 1981]). Furthermore, 435 NYS2d NYS2d 340 [2d Dept Dept 1981]). Furthermore, the with a motion motion for summary the evidence evidence submitted submitted in connection connection with summary judgment judgment should should be viewed viewed in the the light light most favorable party opposing most favorable to the party opposing the motion motion (Robinson v Strong 976, Strong Memorial Memorial Hospital, 98 AD2d AD2d 976, 470 NYS2d NYS2d 239 [4th Dept Dept 1983]). 1983]). On motion for summary judgment the the court court is not not to determine On aa motion summary judgment determine credibility, credibility, but but whether whether there there exists Associates v Globe Mfg. Corp., exists a factual factual issue issue (see (see S.J. Cape/in Capelin Associates Corp., 34 NY2d 357 NYS2d 478, NY2d 338, 338, 357 NYS2d 478, 313 NE2d 776 [1974]). However, the court must also determine 313 NE2d 776 (1974]). However, court must determine whether factual issues issues presented are whether the factual presented are genuine iated (Prunty v Keltie's Ke/tie's Bum Bum Steer, 163 AD2d genuine or unsubstant unsubstantiated AD2d 595,559 [2d Dept 595, 559 NYS2d NYS2d 354 [2d Dept 1990]). the issue not genuine but is feigned 1990]). If If the issue claimed claimed to exist exist is not genuine but feigned and there there is nothing nothing to be tried, tried, then then summary judgment should granted (Prunty v Keltie's summary judgment should be granted Bum Steer, supra, citing citing Glick & Dolleck Keltie 's Bum & Dolleck vv Tri-Pac Export Corp., 22 NY2d 439,293 NYS2d Tri-Pac Export NY2d 439,293 NYS2d 93,239 93, 239 NE2d [1968]; Columbus Columbus Trust Co. Co. vv NE2d 725 [1968]; Campolo, Campolo, 110 110 AD2d AD2d 616,487 616, 487 NYS2d NYS2d 105 [2d Dept Dept 1985], 1985], affd, 66 NY2d 701, 496 NYS2d NY2d 701,496 NYS2d 425,487 425,487 NE2d 282). NE2d 282). The recovery of of damages The plaintiff plaintiff seeks seeks the recovery damages for personal sustained as the result of personal injuries injuries sustained the result of a motor vehicle accident November 3, 2017, on Stony motor vehicle accident on November 3,2017, Stony Hollow intersection with Saratoga Hollow Road Road at its intersection with Saratoga Avenue, ton, County of Suffolk, Avenue, Town Town ofHunting of Huntington, County of Suffolk, State State of New York. Plaintiff that she she was ofNew Plaintiff alleges alleges that was aa passenger in a vehicle being being operated her daughter, passenger in vehicle operated by her daughter, third-party third-party defendant defendant Allison Allison E. Ramme, Rarnme, which which was Road. The was traveling traveling northbound northbound on on Stony Stony Hollow Hollow Road. that the vehicle she was a The plaintiff plaintiff claims claims that the vehicle a passenger in was of the intersection intersection when passenger was already already in the middle middle of when the impact impact took was took place place and that that she she was unsure if if the the Giugliano vehicle was was making making a left left tum turn of unsure Giugliano vehicle of "just "just floating floating into into their lane". The plaintiff their lane". plaintiff alleges that the Giugliano vehicle entered into the northbound alleges that Giugliano vehicle entered into northbound lane travel when accident occurred. occurred. lane of of travel when the the accident The hird-party plaintiff plaintiff Giugliano The defendant/t defendant/third-party Giugliano contends contends that operating her vehicle traveling that she was was operating her vehicle traveling southbound attempting to make southbound on Stony Stony Hollow Hollow Road Road attempting make a left Saratoga A Avenue when the the left hand hand tum tum onto onto Saratoga venue when front her vehicle vehicle made made contact with the driver's front of of her contact with driver's side of of the Rarnme Ramme vehicle. The defendant/third-party vehicle. The defendant/third-party plaintiff that she did not the other other vehicle vehicle prior plaintiff testified testified that not see the accident. The third-party defendant prior to the accident. The third-party defendant testified intersection when testified that that she was was in the middle middle of of the the intersection when the accident accident occurred. The third-party occurred. The third-party defendant that she defendant also alleges alleges that she first saw saw the defendant/t defendant/third-party "two or or three hird-party plaintiffs plaintiffs vehicle vehicle "two three seconds was "straddling double yellow" seconds before before impact" impact" it was "straddling the double defendant's s attorney attorney yellow" lines. The The third-party third-party defendant' [* 2] 2 of 4 FILED: SUFFOLK COUNTY CLERK 07/09/2019 12:16 PM NYSCEF DOC. NO. 40 INDEX NO. 601940/2018 RECEIVED NYSCEF: 07/09/2019 -. -. Ramme Giugliano Ramme v Giugliano /2018 Index 601940/2018 Index # 601940 Page Page 3 paying not paying was not that she contends sole cause cause of of the acciden accident t in that she was plainti ff is the sole def~n~ant/third-party plaintiff tha~ defendant/third-party conte~ds that there to be seen. what was there attentionn while driving and did did not not see what while dnvmg attentro NYS2d 120 0, 813 NYS2d AD3d 519,52 The Court in in Gabler Gabler v. v. Marly 519, 520, 120 (App (App Div Div Corp., 27 AD3d Supply Corp., Bldg. Supply Marly Bldg. The Court that Dep't 2006), 2006), held held that 2d Dep't by oflaw by matter oflaw judgme nt as aa matter entitlement to judgment The facie entitlement prima facie their prima demon strated their defendants demonstrated The defendants left a made a left he made when he Law §S 1141 when Traffic Law and Traffic establishing plaintiffff violated Vehicle and violated Vehicle the plainti that the establishing that of right of the right with ded procee legally proceeded with the tum vehicle as it legally defendants' vehicle the defendants' of the path of the path into the directly into tum directly Schiller, NYS2d 148 [2005]; way [2005]; Torro Torro vv Schiller, 420, 793 NYS2d AD3d 420, Mesquita, 17 AD3d Moreback v Mesquita, (see Moreback way (see NYS2d 57 306, 767 NYS2d AD3d 306,767 Farkouh, 1 AD3d [2004]; Casare Casaregola 57 gola v Farkouh, NYS2d 915 [2004]; 364, 777 NYS2d AD3d 364,777 88 AD3d 298 i, Scibett v Russo [2003]; 256 NYS2d [2003]; Rieman v Smith, 302 AD2d 510, NYS2d 256 [2003]; Russo v Scibetti, 298 755 510, AD2d 302 [2003]; Rieman v Smith, NYS2d 131 726 NYS2d AD2d 352, 284 AD2d Rehfeldt, 284 AD2d 514, 748 748 NYS2d [2002]; Agin 352, 726 131 Agin v Rehfeldt, NYS2d 871 [2002]; AD2d 514, the As . (2000]) 325 NYS2d 717 304, [2001]; Stiles v County of Dutchess, AD2d 304, 717 NYS2d [2000]). As the AD2d 278 ss, Dutche of [2001]; Stiles v County plainti ff the plaintiff that the anticipate that entitled to anticipate defendants' had the was entitled Lam was of way, Lam right of the right vehicle had ants' vehicle defend (see vehicle ants' defend the defendants' yield to the him to yield would laws which vehicle (see required him which required traffic laws the traffic obey the would obey supra; Mesquita, supra; Moreback vv Mesquita, Bongiovi [2005]; Moreback NYS2d 354 [2005]; AD3d 686, 795 NYS2d Hoffman, 18 AD3d Bongiovi vv Hoffman, supra; ss, Dutche of Stiles v County Russo County of Dutchess, supra; supra; Stiles Rehfeldt, supra; Agin v Rehfeldt, supra; Agin Scibetti, supra; Russo vv Scibetti, 266 Lee, 266 NYS2d 750 [2000]; Zambrano ilh wan [2000]; Cenovs Cenovskiki vv Lee, 312, 715 NYS2d AD2d 312, 277 AD2d Seok, 277 an Seok, Philhw Zambrano vv Ph to failing in law of matter of law in failing to see negligent as a matter AD2d [1999]) ... he was see was negligent NYS2d 868 [1999]) 424, 698 NYS2d AD2d 424,698 vi Bongio (see senses of proper that which he should have seen through the proper use of his senses (see Bongiovi vv that which he should have seen through Breslin [2004]; 101 NYS2d 469, 773 NYS2d AD3d 469,773 Hoffman, supra; Spatola Gelco Corp., Corp., 5 AD3d [2004]; Breslin vv Spatola v Gelco Hoffman, supra; Stiles vv County Rehfeldt, supra; Agin v Rehfeldt, Rudden, [2002]; Agin supra; Stiles County NYS2d 674 [2002]; 471, 738 NYS2d AD2d 471,738 291 AD2d Rudden, 291 1 356,66 AD2d 242 , Lohan v Bolta Lohan, 242 AD2d 356, 661 Seok, supra; of Dutchess, supra; Zambrano ilh wan supra; Bolta an Seok, Philhw Zambrano v Ph Dutchess, supra; of [1917]) 345 [1917]).. NY39, 116NE NYS2d286 Weiganddvv United United Tractio Tractionn Co., 221 NY39, 116NE345 [1997]; see also Weigan NYS2d 286 [1997]; judgme nt to judgment entitlem ent to facie entitlement established a prima Here, Allison E. Ramme prima facie Ramm e established defend ant Allison third-party defendant Here, third-party required then required was then plainti ff was defendant/third-party plaintiff as matter of law as The defendant/third-party complaint. The third-party complaint. the third-party to the as to of law as aa matter In fact. of issue of fact. In any issue of any trial of require a trial sufficient to require to proffer evidence facts sufficient show facts form to show admiss ible form in admissible evidence in to proffer by entitlement, by prima facie that prima rebut that not rebut opposition facie entitlement, plaintif f did not defendant/third-party plaintiff motion, defendant/third-party the motion, to the opposition to d-party ant/thir Plainti ffs, defend owed to her. Plaintiffs, showingg that defendant/third-party duty owed breached a duty defend ant breached third-party defendant that third-party showin the that the the to up leading plaintiffs events leading the acciden accident t show show that the events of the version of defend ant's version third-party defendant's and third-party plainti ffs and turned vehicle ffs plainti s vehicle turned ant/third-party plaintiff Ramme of way defendant/third-party when defend road when way on the road right of the right had the vehicle had Ramme vehicle summary for summary motion for ant's defend arty third-p the re left directly directly into into it it and and caused caused the accident.t. Therefore third-party defendant's motion Therefo the acciden left int is granted judgment dismiss the complaint granted.. third-party compla the third-party judgme nt and to dismiss The law. The of law. matter of judgme nt as a matter Further, entitlement to judgment facie entitlement prima facie establi shed a prima plainti ff established the plaintiff Further, the facts show facts to show form to admiss ible form evidence in admissible proffer evidence defendant/third-party required to proffer then required was then plainti ff was ant/third-party plaintiff defend provide to failed ff plainti defendant/third-party plaintiff failed to provide sufficient The defendant/third-party of fact. The issue of any issue of any trial of require aa trial to require sufficient to showing. facie showing. prirna facie the prima rebut the failed to rebut ant opposition to the cross motion, therefore the defendant failed defend the re opposition to the cross motion, therefo [* 3] 3 of 4 INDEX NO. 601940/2018 FILED: SUFFOLK COUNTY CLERK 07/09/2019 12:16 PM NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 07/09/2019 Ramme v Giugliano Giugliano Ramme Index # 601940/2018 601940/2018 Index Page 4 Page4 Accordingly, the motion motion by plaintiff order awarding awarding partial summary judgment her Accordingly, plaintiff for an order partial summary judgment in her favor on the issue issue of of liability liability is granted; granted; and it is further further favor ORDERED that that counsel counsel for plaintiff shall serve serve a copy copy of of this this order order upon opposing counsel counsel and ORDERED plaintiff shall upon opposing upon Calendar Clerk Clerk of of this this court court within within twenty twenty (20) days from ~he ~he date date of of this this order; order; and it is further further upon the Calendar ORDERED that that this this action action shall shall proceed trial on the issue issue of of damages. damages. ORDERED proceed to trial The foregoing constitutes the decision and Order of this ourt. Dated: July 8, 2019 2019 Dated: SANTORELLI A. SANTORELLI J.S.C. J.S.C. [* 4] 4 of 4

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