Iafallo v Sommer

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Iafallo v Sommer 2020 NY Slip Op 34750(U) June 15, 2020 Supreme Court, Erie County Docket Number: Index No. 802748/2018 Judge: Diane Y. Devlin 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: 1] ERIE COUNTY CLERK 06/16/2020 11:23 AM NYSCEF DOC. NO. 61 INDEX NO. 802748/2018 RECEIVED NYSCEF: 06/16/2020 STATE OFNEWYORK SUPREME COURT : : COUNTY OF ERIE DEBORAHIAFALLO Plaintiffs DECISION vs.' INDEX.NC). 802748/2018 CHELSEA M. SOMMER RAY ROMENTAL, FRANCESE.GALARZA ROBERT W. HENDRIX LAUREN E. SPENCER Defendants JohuW. Looney,Esq. Cellino and Barnes Attorney for Plaintiff 350 Main Stre~t #2500 Buffalo, New York 14202 Andrew J. Kowalewski, :E$q. Nash Connors, PC Attorneys for Defendant Romental 344 Delaware Avenue, #400 Buffalo, New York 14202 Mark A. Forden, Esq, Thomas P. Cunningham, Esq. L8w Offh~e D8niel Archill8 Rupp B88_se Pfalzgraf Cunningham Attorneys for DefendantSommer 170 Franklin Street #500 Buffalo,New Yorkl4202 Attorneys for Defendant Hendrix 1600 Liberty Building Buffalo, New York 14202 The Plaintiff fileda negligence cause of action stemming frotn a inotor vehicle accident that occurred in April 2016.According to the record, an accident occurred between defendants Sommer and R01rterital afte~ which :Plaintiff came to a stop -1-. 1 of 4 [*FILED: 2] ERIE COUNTY CLERK 06/16/2020 11:23 AM INDEX NO. 802748/2018 NYSCEF DOC. NO. 61 RECEIVED NYSCEF: 06/16/2020 behind this accident then noticed that DefendantHendrix was approaching her from behind. Defendant Hendrix .came into contact with the rear of Plaintiffs car, which caused hervehicleto come into contact with the Romental vehicle. Depositions of al[parties,-save Rornental-,have been conducted. Defendant Rmnehtal files motion to dismiss on the theory that negligence, if any, was not the proximate cause of Plaintiff's accident. Defendant Hendrix filed a cross motion to compel the deposition of defendant Romental or have his answer stricken; and defendant Sommer filed a cross motion to dismiss the complaint on the theory that there.is noproofthatshe was.negligent for the happening of the accident between her and Romental. The court has considered the Notices and Cross Notices of Motions with supporting affirmations with annexed exhibits, the answering affirmations with annexed exhibits, and the replying affirmations. ANALYSIS AND DECISION Plaintifftestified that Defendant Romental cut her offfrom the right lane tothe left in which she was traveling. She then had to come to a quick stop because of an accident between Sommer and RomentaL Defendant Romental argues that since Plaintiff testified thatshe was able to come to a complete stop, the accidentinvolving him is not the proximate cause of her subsequent accident. He relies on Murtagh v Beachy, 6 AD 3d 786 (3d Dept. 2004). However, the court.agrees with Defendant Hendrix that the Court ofAppeals case ofTutrani v County of Suffolk, 10 NY3d 906, is more on point with the facts as known thus far in that a defendant's conduct in front of a stopped pla1htiff could be a ''substantial cause of the collision'; between . . Plaintiff andJiendrix "even though the:re·w:as riQ contact b~tween plaintiffs vehicle -2-' 2 of 4 [*FILED: 3] ERIE COUNTY CLERK 06/16/2020 11:23 AM NYSCEF DOC. NO. 61 INDEX NO. 802748/2018 RECEIVED NYSCEF: 06/16/2020 and [Romental] 's vehicle; A jury could find Romental's actions-cutting off of Plaintiff, accordingto her testimony-could "set into motion an eminentlyforeseeable chainofeventsthatresulted inthe collisionhetweenplaintiff and [Hendrix]." Idat 908. Therefore, thecourt denies Rotnental' s motion for summary judgmentwi thout prejudice and grants Hendrix's cross motion to compel Romental to appear for a deposition within 90 days, remotelyif ne_cessary. The attorneys can stipulate or tile a motion for alonger period due to the current pandemic. Ifdefendant Romental fails to appear within 90 days, defendantHendrix can renew motion to strike his answer. DefendantSommer's motion Defendant Sommer moves for summary judgment on the theory that she was notnegligent for the happening of the accident between her and defendant Romental. DefendantSommerstestified.that she was traveling in the left lane of the southbound 190 and maintained a safe distance with the vehicles in front of her when she was struck in the back by Romental. Furthermore, Sommer argues that the accident between her vehicle and Romental was not the _proximate cause ofthe accident between Plaintiff and defendant Hendrix, which is essentially the same argumentthat Romental asserts. Defendant Romental opposed partially with the position that there is a question offactas to whether Sommer hacl. s0U1e negligence. The court believes that there is an issue. of fact as to whether Sommer has some degree of negligence fcfr the accident that occU:1Ted in front ofPlaintiff; and therefore, the same reasoning exists for the .,3_ 3 of 4 [*FILED: 4] ERIE COUNTY CLERK 06/16/2020 11:23 AM NYSCEF DOC. NO. 61 INDEX NO. 802748/2018 RECEIVED NYSCEF: 06/16/2020 Sommer d~fendan.tas to proximate cause. DefendantHendrix also opposes and states that the Romental deposition is necessary. The court denies Defendant Sommers' motion without prejudice. Hon. Diane Y.. :Devlin Justice of the Supreme Court DATED: June 15, 2020 Buffalo, New York -4- - - - - • --.-.~••"''•"Y"'"""''''"' • 4 of 4 • " • -•-• ,_,,-.,...,_.....,.,,~ ... , .. .,,_,,.,.,,,_ • ._._Y••-•-, •••• • • " ........ •••••••" --••••~W.••--

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