Pelton v Lacorata

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Pelton v Lacorata 2019 NY Slip Op 34719(U) December 4, 2019 Supreme Court, Putnam County Docket Number: Index No. 500914/2019 Judge: Victor G. Grossman 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. 500914/2019 FILED: PUTNAM COUNTY CLERK 12/05/2019 11:45 AM NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 12/05/2019 To commence the 30 day statutory time period for appeals as or right (CPLR SS13[aJ), you are advised to sene a copy of this order, with notice of entry, upon all parties SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF PUTNAM --------------------------- ------------X MARYANN PELTON and NICHOLAS PELTON, DECISION & ORDER Plaintiffs, -against - Index No. 500914/2019 Sequence No. 1 Motion Date: 10/16/19 TYLER LACORATA and TRACY MCKAY, . Defendants. -----------------------·-------·--------X GROSSMAN, J.S.C. The following papers, numbered 1 to 8, were considered in connection with Plaintiff's Notice of Motion, dated September 19, 2019, for an Order, granting partial summary judgment on the issue of liability against Defendants pursuant to CPLR §3212. PAPERS Notice of Motion/Affirmation in Support/Exhs. 1-4 Affirmation in Opposition Reply Affirmation NUMBERED 1-6 7 8 On October 25, 2017, at approximately 8:00 a.m., Plaintiff Maryann Pelton was involved in an automobile accident with another vehicle, operated by Defendant Tyler Lacorata, and owned by Defendant Tracy McKay. Plaintiffs vehicle was stopped in the right lane of southbound Interstate 684 in Westchester County because of traffic stopped ahead of her when she was struck from the rear by Defendants• automobile. As a result, Ms. Pelton was injured, and her husband, Nicholas Pelton, is seeking loss of consortium. [* 1] 1 of 5 FILED: PUTNAM COUNTY CLERK 12/05/2019 11:45 AM NYSCEF DOC. NO. 13 INDEX NO. 500914/2019 RECEIVED NYSCEF: 12/05/2019 Plaintiffs commence d this on June 12, 2019. Defendants interposed an Answer on September 3, 2019. Plaintiffs move for summary judgment on the issue of liability. In support of their motion, Plaintiffs submitted: (1) the Summons and Verified Complaint; (2) Defendants ' Answer; (3) the police accident report; and (4) Maryann Pdton's affidavit (Notice of Motion; Exhs. 1-4). In opposition, Defendants proffer an affomation from their counsel. It is axiomatic that summary judgment is a drastic remedy and should not be granted where triable issues of facts are raised and cannot be resolved on conflicting affidavits (see Millerton Agway Coop. Inc. v Briarcliff Farms. Inc., 17 NY2d 57, 61 [1966]; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [ 1957]). Initially, "the proponent... must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrat e the absence of any material issue of fact." However, once a movant makes a sufficient showing, "the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible fonn sufficient to establish the existence of material issues of fact which require a trial of the action" (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Where the moving papers are insufficient, the court need not consider the sufficiency of the opposing papers (id.; see also Fabbricatore v Lindenhurs t Union Free School Dist., 259 AD2d 659 [2d Dept 1999]). "'The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon and the condition ofthe highv,:ay"' (Pornerantsev v KodinsAy, 156 AD3d 656 [2d Dept 2017]), quoting Vehicle and Traffic Law §1129[a]). "Hence, '[a] rear-end collision with a stopped 2 [* 2] 2 of 5 FILED: PUTNAM COUNTY CLERK 12/05/2019 11:45 AM NYSCEF DOC. NO. 13 INDEX NO. 500914/2019 RECEIVED NYSCEF: 12/05/2019 vehicle creates a prima facic case of negligence against the operator of the moving vehicle, thereby requiring that operator to re hut the inference of negligence by providing a non-negligent explanation for the collision''' (Pomerantsev, supra, quoting Hauser v Adamov, 74 ADJd 1024, 1025 l2d Dept 2010]): sec also ,5kura v IVojtlowski, 165 AD3d 1196, 119812d Dept 2018J). Here, Plaintiffs submitted iv1s. Pclton's affidavit in \:vhich she explained that she was traveling southbound on Interstate 684 in Westchester County, that there were no other occupants in her car, and that there were no obstructions on the highway or in her vehicle preventing her from observing traffic (Notice of !\·lotion; Exh. 4 at ii3). Ms. Pelton stated that she "was in the right lane of sout.hbound Interstate 684 when 1 came to a complete stop because of traffic stopped in front of me. As my vehicle remained at a complete stop, my vehicle \Vas struck from the rear suddenly and without warning" (~oticc "I a Is or fv1otion; Exh. 4 at i14). !vfs. Pelton also stated that my vehicle ,vas at a complete stop for stopped traffic ahead or me, there vvas nothing I could do to avoid the collision" (Notice of 1'v1o1ion; Fxh. 4 at ,rs). In opposition to Plaintiffs' prirna facic shmving of their entitlement to judgment on liability as a matter of lmv. Defendants ti.iled to demonstrate the existence of a triable issue of fact. There is no 1:1ctual evidence proffered in support of their opposition. In fact, Defendants did not even submit their O\Vn anidavits. Furthermore, defense counsel's affirmation is \Vorthless and cannot be relied upon to meet Defendants' burden (see :tuckerman r Citv o[NeH' 49 !'JY2d 557, 560 f 19801). Moreover, while Defendants argue that this motion should be denied as premature, it is well settled that "[t]o defeat a motion for swnmary judgment based on outstanding discovery, it is incumbent upon the opposing party to provide an evidentiary basis to suggest that discovery 3 [* 3] 3 of 5 INDEX NO. 500914/2019 FILED: PUTNAM COUNTY CLERK 12/05/2019 11:45 AM NYSCEF DOC. NO. 13 RECEIVED NYSCEF: 12/05/2019 might lead to relevant evidence or that the facts essential to justify opposition to the motion were in the exclusive knowledge and control of the moving party" (Rodriguez v Gutierrez, 138 AD3d 964, 968 [2d Dept 2016 J). "The mere 'hope or speculation that evidence sufficient to defeat a motion for summary judgment may be uncovered during the discovery process is an insuflicient basis for denying the motion'" (Rodriguez v Gutierrez, supra, quoting Suero-Sosa v Cardona, 112 AD3d 706, 708 [2d Dept 2013] [internal quotation marks omitted]). Here, Defendants failed to demonstrate how further discovery may reveal or lead to additional relevant evidence. Plaintiffs are also seeking dismissal of Defendants' affimiative defense of comparative negligence. ''Although a plaintiff need not demonstrate the absence of his or her own comparative negligence to be entitled to partial summary judgment as to a defendant's liability * * * the issue of a plaintiff's comparative negligence may be decided in the context of a summary judgment motion \Vhere, as here, the plaintiff moved fro summary judgment dismissing a defendanf s affirmative defense of comparative negligence" (Poon v 1Visanov, 162 AD3d 804, 808 [2d Dept 2018], citing Rodriguez v City (flVe11· York, 31 NY3d 312, 323-325 [20181). Here, as stated above, Ms. Pelton stated that she was struck in the rear while she was completely stopped. Thus, Plaintiffs established a prima facie case that Ms. Pelton was not at fault in the happening of the accident (Poon v jVisanov, supra, citing Gonzalez v Alvarez, 151 AD3d 814, 815 [2d Dept 2017]). In opposition, Defendants failed to raise a triable issue of fact. As such. the Cowt dismisses the affirmative defense of comparative negligence. Accordingly, it is hereby ORDERED that Plaintiffs' motion is granted and partial summary judgment is awarded to Plaintiffs on the issue of liability against Defendants; and it is further 4 [* 4] 4 of 5 FILED: PUTNAM COUNTY CLERK 12/05/2019 11:45 AM NYSCEF DOC. NO. 13 INDEX NO. 500914/2019 RECEIVED NYSCEF: 12/05/2019 ORDERED that Defendants' affirmative defense of comparative negligence is stricken from Defendants' Answer; and it is further ORDERED that the parties are to appear before the undersigned on Thursday, December 19, 2019 at 9:30 a.m. for a preliminary conference. No per diem counsel, and no adjournments will be permitted unless good cause shown. The foregoing constitutes the Decision and Order of the Court. Dated: Carmel, New York December 4, 2019 To: Philip A. Pollastrino, Esq. Goldblatt & Associates, P.C. Attorneys for Plaintiffs 1846 East Main Street (Route 6) Mohegan Lake, New York 10547 Stacy L. Jacobs, Esq. Law Office of Bryan M. Kulak Attorneys for Defendants 90 Crystal Run Road, Suite 409 Middletown, New York 10941 5 [* 5] 5 of 5

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