Commerford v Schettkoe

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Commerford v Schettkoe 2019 NY Slip Op 34717(U) December 30, 2019 Supreme Court, Orange County Docket Number: Index No. EF004998-2019 Judge: Sandra B. Sciortino 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. EF004998-2019 FILED: ORANGE COUNTY CLERK 01/02/2020 12:50 PM NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 01/02/2020 To commence the slalutory time for appeal as or right (CPLR 5513 [al), you are advi ed to serve a copy of Ihis order, with notice of entry, upon all panics. SUPREME COURT OF THE ST ATE OF NEW YORK COU TY OF ORANGE ----------------------------------------------------------------X STEPHEN COMMERFORD Plaintiff, DECISION AND ORDER INDEX 0.: EF004998-2019 Motion Date: l 0/23/19 equence o. l -against- KELSEY CHETTKOE, Defendants. ------------------------------------------------------------------X SCIORTINO, .J. Th following paper numbered 1 to 5 were considered in connection with plaintiffs motion eeking an order granting partial summary judgment on the issue of liability: PAP R UMBERED Notice of Motion/ ffirmation (Ro enrauch)/ ~xhi bits 1-5 Affirmation (Fugelsang) 1-7 8 Background and Procedural History Thi personal injury action arises out of a motor vehicle accident that took place on June 27 2019 at the inters ction of State Route 21 1E and North Galleria Drive, Town of Wallkill Orange County ew York. Plaintiff commenced this action by fil ing a Summons and omplaint (Exhibit 1) on or about June 27, 2019. Defendants filed a Verified Answer dated July 17 2019. (Exhibit 2). The w1derlying facts m this case are disputed. Defendant Kelsey Schettkoe was Filed in Orange County [* 1] 01/02/2020 12:50:37 PM $0.00 1 of 4 Pg: 1775 Bk: 5136 Index: # EF004998-2019 Clerk: EBR FILED: ORANGE COUNTY CLERK 01/02/2020 12:50 PM NYSCEF DOC. NO. 14 INDEX NO. EF004998-2019 RECEIVED NYSCEF: 01/02/2020 operating a motor vehicle when it struck a motor vehicle which was being operated by plaintiff and was stopped a red light. The collision is alleged to have caused severe and serious personal injuries to plaintiff. Current Motion By Notice of Motion fi led September l 9 2019 plaintiff seeks partial summary judgment on the issue of liability. The motion is supported by plaintiff's affidavit and his attorney' s affirmation. The plaintiff state that on August 9, 2016 while his vehicle was stopped at a red light it was struck by defendants ehicle from behind. Plaintiff counsel avers that a rear-end collision establishesprimafacie neglig nee on the part of the operator of the vehicle. A duty is then imposed upon the operator to provide an adequate, non-negligent explanation for the accident. Plaintiff avers that def ndant chettkoe had an absolute duty to stop at the rd traffic signal and keep her ehicle under control to avoid a collision and de~ ndant's failure to do so constitutes negligence a a matter of law. The defendant counsel filed an affirmation on September 24 2019. Defendant does not oppose plaintiff's motion on the i sue of liability . . Discussion ummary judgment is a drastic remedy, appropriate only when there is a clear demonstration of the absence of any triable issue of fact. Piccirillo v. Piccirillo, 156 A.O.2d 748 (2 nd Dep ' t. 1989) citing Andre v. Pomeroy 35 N.Y.2d 361 (1974). The Court' s function on such a motion is i.ssue finding not issue determination. Sillman v. Twentieth entury-Fox Film Corp. , 3 N.Y.2d 395 (1957). The Court i not to engage in the weighing of evidence; instead, the Court 2 [* 2] 2 of 4 INDEX NO. EF004998-2019 FILED: ORANGE COUNTY CLERK 01/02/2020 12:50 PM NYSCEF DOC. NO. 14 RECEIVED NYSCEF: 01/02/2020 must determine whether " by no rational process could the trier of facts find for the non-moving party.' Jastrzebski v. N hore ch. Di t. 232 A.D.2d 677 678 (2 nd Dep t. 1996). In the matter at bar, plaintiff has established a prima faci e entitlement to summary judgment by the proffer of a worn statement alleging that he struck by defendant s v hicle. as stopped at a red light when rear-end collision with a stopped or stopping ehicle establishes a prima fa ie ca e of negligenc on the part of the dri er of the moving ehicle, thereby requiring the operator to rebut the inference of negligence by providing a non-negligent explanation. Williams v. Spencer-Hall 113 03d 759 (2 nd Dept 2014) A dri er is expected to dri e at a sufficiently safe speed and to maintain enough distance between herself and cars ahead of her so as to a oid collisions with stopped vehicles taking into account the weather and road conditions. Yeh . & Traffic Law § 1129(1 ). A failure to do so constitutes negligence as a matter of law, in the absence of an adequate explanation. Vela ·quez v. Quij"ada 269 AD2d 592 (2 nd Dep t 2000). As the instant motion is not opposed on the issue of liability defendants have failed to provide such an explanation. The denials and affirmative defenses in defi ndants Answer do not suggest, much less demonstrate that there are any facts in dispute that would rebut the presumption of negligence established by th r ar-end collision. According) Thi d the motion for partial summary judgm nt on the issue of liability is granted. i ion hall constitute the order of the Court. Dated: December 30 2019 Goshen e York 3 [* 3] 3 of 4 FILED: ORANGE COUNTY CLERK 01/02/2020 12:50 PM NYSCEF DOC. NO. 14 To: oun el of Record via NY. RECEIVED NYSCEF: 01/02/2020 EF 4 [* 4] INDEX NO. EF004998-2019 4 of 4

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