Marolda v Kreinces
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Marolda v Kreinces 2020 NY Slip Op 34860(U) January 21, 2020 Supreme Court, Suffolk County Docket Number: Index No. 17-615035 Judge: Joseph Farneti 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. 615035/2017 FILED: SUFFOLK COUNTY CLERK 01/21/2020 03:55 PM NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 01/21/2020 SHOR'J'Fot{M ORDER OR!GII\T.At INDEX No. 17-'615035 CAL. No. 19-0l 386MV SUPREME COURT - STATE OF NEW YORK I.A.S. PART 37 - SUFFOLK COUNTY PRESENT: MOTIONDATE 8-12-19 (002) MOTION DATE 9-5-19 (001) Hon; ------"-'JO,,,_,S=E=P-=H"""F'-"A-=RNE-=•....:.=..:T=I_ _ Acting Justice of the Supreme Court ADJ. DATE 9-5-19 Mot.Seq.# 001 - MG #002-MG -----------------. ----------------. -. -- .. ---- . --- .---- . .... X· JAMES MAROLDA, MICHAEL G. LORUSSO, P.C Attomeyfor Plaintiff 316 Jackson Avenue Syosset, New York l 1791 Plaintiff, LAW OFFICE OF ANDREA G. SAWYERS Attorney for Defendant . 3 Huntington Quadrangle; Suite 1028 - against- Melville, New York 11501 JEFFREY H. KREINCES, Defendant. l -·-------------- ·----------------------- ·-------------------·x Upon the following papers read on the e-filed motions for summary judgment and to vacate the note of issue: Notice of Motion/ Order to Show Cause and supporting papers by plaintiff, dated July l7. 2019; by defendant July 24, 2019; Notice of Cross Motion and supporting papers _ ; Answering Affidavitsand supporting papers by plaintiff. datedJ uly 26, 2019; by defendant; .dated August 22. 2019; Replying Affidavits and supporting papers by plaintiff, dated August 23. 2019; Other _ ; it is; ORDERED that the 111otjon (seq. #001) by plaintiff, and the motion (seq. #002) by defen~ant are consolidated for the purposes of this determ..inatfon;and it is further 011.DERED that the motion by plaintiff for summary judgm~nt in his favor on the issue of defendant's negligence is granted; and it is further ORDERED thatthe motion by defendant Jeffrey Krei11cesfor an Order vacafingthe Note oflssue is granted; and it is further [* 1] ------------- - -5 - - - - - · · · · - · - · · · · - - - · · · · · · · · · · · · · · · · · · · ..... . 1 -of FILED: SUFFOLK COUNTY CLERK 01/21/2020 03:55 PM NYSCEF DOC. NO. 37 INDEX NO. 615035/2017 RECEIVED NYSCEF: 01/21/2020 Maroldav Kreinces Index No. 17-615035 Page 2 ORDERED that a copy of this Order shall be served on the Calendar Clerk; and itis further ORDEREJJ that counsel for the parties shall· appear before this Court on February 27, 2020 at. 9:30 a.m. for a Compliance Conference. This is an action to recover damages for injuries allegedly sllstained by plaintiff James Marolda as a result ofa motor vehicle accident that occurred on March 3, 201 7, on Northern State Parkway, at or near Willis Avenue in North Hempstead, New York. Plaintiffs stopped vehicle allegedly was struck in the rear by a vehicle owned and operated by defendant Jeffrey Kreinces. Defendant now moves for· an Order vacating the Note of Issue· and the Certificate of Readiness. for Trial on the ground that the Certificate of Readiness incorrectly indicates that all pretrial discovery, including physical exami11ations; has been cmnpleted, and that no outstanding requests for discovery remain. Defendant contends that plaintiff has neither appeared for a physical examination nor provided certain authorizations. In support of his motion, defendant submits~ among other things, copies ofthe Note. of Issue and the Certificate ofReadiness, and the Notice for Discovery and Inspection dated March 26, 2013. In opposition to defendant's motion, plaintiff contends, inpart, that pretrial discovery has been completed with the exception of plaintiff's independent medical exa111ination. He also denies receiving defendant's Notice for Discovery and Inspection dated March 26, 2013. In support of his opposition, plaintiff submits, among other things, copies of a Preliminary ConferenceStipulation and Order dated February 7,2018, a So-Ordered Stipulation dated June 13, 2019, and a Compliance Conference Order dated June 13, 2019. Plai11tiffmoves for sumnmry judgment onthe issue ofdefendant's negligence, contending that his vehicle was stopped for traffic when it was struck in the rear by defendant· s vehic:le. In support of his motion, plaintiff submits, among other things, the transcripts of the parties' deposition testimony. In opposition, defendant argues that plaintiff made a sudden stop and failed to observe prevailing traffic conditions at the time ofthe accident On August 6, 2018, plaintiffappeared for an examination for trial. He testified that his vehicle was stoppe:dfor traffi.c at the time ofthe collisi,:m. Tl:ie ve:bicle in front ofplaintiff's vehicle allegedly was also. stopped atthe time of the accident. Plaintiff testified that the force of the impact with defendant's·vehicle propelled his vehicle into the vehicle in front ofit, which caused.a. chairi~readicm accident On March 29, 2019, defendant appeared for ail examination before-trial. Hetestified that he did not observe.traffic aheiicl of him slow down prior to the collision; According to defendant's testimony,. he first observed plaintiffs stopped vehicle at the time of the collision. He testified that his vehicle was 2 of 5 ---······························--------------------------------------[* 2] FILED: SUFFOLK COUNTY CLERK 01/21/2020 03:55 PM NYSCEF DOC. NO. 37 INDEX NO. 615035/2017 RECEIVED NYSCEF: 01/21/2020 Marolda v Kreinces IndexNo. 17-615035 Page3 traveling at a rate of speed of approximately 50 miles per hout prior to the accident. The speed limit on Northern State Parkway near Willis Avenue allegedly was 55 miles per hour. Defendant allegedly did not recall :how long plaintiff's vehicle had been stopped for, or whether the impact between the front of his vehicle and the rear of plaintiffs· vehicle resulted iri plaintiff's vehicle striking another vehicle; Pursuant to the ComplianceConference Order dated June 13, 2019, plaintiff was directed to file a Note oflssue on ot before August 8, 2019. By a So-Ordered Stipulation dated June 11, 2019, plaintiff was also directed to appear for an independent medical examination within 60 days. According to the Court'-s computerized records, the Note ofissue and the Certificate of Readiness were fileli on Jµly 15, 2019. The·CertificateofReadiness.·states that all pretrial discovery, includingphysical examinations, has been completed. However,it also indicates that plaintiff has Iiot yet appeared for.an independent medical examination. The Uniform Rules for Trial Courts (22 NYCRR). § 202.21 ( e) provides thatwithin 20 days after service ofa note of issue and certificate of readiness, any party to the action may move to vacate the note of isslle "upon affidavit showing in what respects the case is not reacly for trial, and the court may vacate the note of issue if it appears that a materialfact in the certificate ofreadiness is incorrect." In addition, at any time, the court on its owri motion may vacate a note ofissue if it appears that a material fact in the certificate of readiness is incorrect (see 22 NYCRR. § 202.21 [e]). A statement contained in a certificate of readiness indicating that all pretrial discovery has been completecl is a material fact, and where such a statement is incorrect, the note of issue should be vacated (see Cioffi v S.M. Foods, 1nc., _AD3d _ , :20I9NY Slip Op 09250 [2d Dept 2009]; see e.g. Barrettv New YorkCity Health & Hosps. Corp., 150 AD3d 949, 55 NYS3d 318 [2d Dept 2017]; Ferreira v Village ofKings Point, 56 AD3d 718, 868 NYS2d 697 [2d Dept 2008]). Defendant's motion to vacate the Note of Issue and the Certificate ofReadiness is granted. The Certificate of Readiness incorrectly states that all pretrial discovery, including physical examinations, has been completed (see Young v Destaso Funding; LLC, 92 AD3d 778, 938 NYS2d 476 [2d Dept 2012]; Ferreira v Village o/Kings Point, supra; Brown v Astoria Fed. Sav., 51 AD3d 961, 858 NYS2d 793 [2d Dept 2008]). As these. were misstat~ment ofmaterial facts, the filing of the Note of Issue was a nullity, audit must he vacated (see 22 NYCRR§ 202.21 [e];BarrettvNew York City Health &Hosps. Corp., supra; Young v Destaso Funding, LLC, supra; Brown v Astoria Fed. Sav., supra; Gregory v Ford MotoYCreditC()., 298 AD2d 49(:i, 748NYS2d 507 [2d.Dept 2002]). The Court now turns to plaintiff's motion for summary judgnu,mt in his favor on the issue of defendant's negligence. The proponent of a $Urinnary j udgmertt motion must make a primafacie .showing of entitlement to judgment as a matter of1aw by tendering evidence in admissible form suffichmt to eliminate any material issues of fact. froin. the. case {~ee Alvarez r Prospect Hosp~, 68 NY2d 320,508 NYS2d 923 [1986]; Winegradv New York Univ. Med. Ctr., 64NY2d.85J; 87NYS2d 316 [I 985]). The movant has the initial burden ofproving entitlement to summary judgment (Winegrad v [* 3] 3 of 5 FILED: SUFFOLK COUNTY CLERK 01/21/2020 03:55 PM NYSCEF DOC. NO. 37 INDEX NO. 615035/2017 RECEIVED NYSCEF: 01/21/2020 Marolda V KreinCes Index No. 17..,615035 Page4 New York Univ. Med. Ctr. 1 supra). Ortce the rrtovant demonstrates aprima facie entitlement tojµdgmeilt as a matter of law, the burden shifts to the party opposing the motion to produce eVidentiary proof in admissible form sufficient to establh;h the. existence of material issues of fact which require a trial of the action (see Vega v RestanlConstr; Corp., 18 NY3d499, 942 NYS2d 13 [2012];Alvarez vProspect Hosp., supra; Zuckerman v City of New York,49 NY2d 557; 427 NYS2d 595 [1980];see also CPLR 3212 [b]). The failure to make a primafacie showing requires ·a denial ofthe motion, regardless of the sufficiency of the opposing papers (see Winegrad v New York Univ. Med. Ctr., supra). In deciding the motion, the court must view all evidence in the light most favorable to the rtonmoving party (see Matter of New York City Asbestos Litig., 33 NY3d 20, 99 NYS3d 734 [2019]; Vega v Restani Constr. Corp., supra). · A plaintiffis no longer required to show freedom from comparative fault to establish his or her prima fat ie entitlement to judgment as a matter of law on the issue ofneglige11ce (Rodriguez v ·City of New York, 31 NY3d 312, 76 NYS3d 898 [2018]; see Xin Fang Xia vSaft, 177 AD3d 823, 2019 NY Slip Op 08248 [2d Dept 2019]; Liu v·Lowe, 173 AD3d 946, 102 NYS3d 713 [2d Dept 2019]; Catanzaro v Edery, 172AD3d 995, 1OJ NYS3d 17() (2dDept 2:019]). A driverofan automobile approaching another automobile frorrt the rear must maintain a reai:;onably safe. rate of speed artd control over his or her vehicle, anclexercisereasonable care to avoid colliding with the other vehicle (see Vehicle and Traffic Law§ 1129 [a]; Bloechle v Heritage Catering, Ltd., 172 AD3d 1294; 101 NYS3d 424 [2d Dept2019J; Comas-Bourne v City of New York, 146 AD3d 855, 45 NYS3d 182 [2d Dept20l7]; Scl,mertzler v Lease Plan U.S.A., Inc., 137 AD3d. l 101, 27 NYS3d 648 [2ffDept2016]); A rear-end collision with a stopped or Stopping vehide establjshes aprimafacie case of negligence on the part of the operator of the. rear vehide, and thereby requires that operator to rebut the inference of negligence by providing a nonnegligent explanation for the. collision (see Clements v Giatas, 178 AD3d 894, 112 NYS3d 539 [2d Dept 2019]; Ordonez v Lee, 177 AD3d 756, 110 NYS3d 339 (2d Dept 2019]; Gelo v Meehan, 177 AD3d 707, 110 NYS3d 333 [2d Dept2019]). A non-negligent explanation may include evidence of a mechanical failure, a sudden, unexplained stop of the leading vehicle, an unavoidable skidding on wet pavement, or any other reasonable cause (see Clements v Giatas, supra; Grant v Carrasco, 165 AD3d 631, 84 NYS3d 235 [2d Dept 2018]; Tumminello v.City o/New York, 148 AD3d 1084, 49 NYS3d 739 [2d Dept 2017]), Plaintiff established his primafacie entitlement to summacy judgment in his favor on the issue of defendant's negligence by demonstrating,primafacie , that plaintiffs vehicle was stoppedwhen it was struck in the rear by defendant's vehicle (see Clements v Giatas, supra;· Morgan v Flippen, 173 AD3d 735, l 02 NYS3d 108 [2d Dept 2019]; Auguste v Jeter, 167 AD3d 560, 88 NYS3d 509 [2d Dept 2018]). The parties do not dispute that plaintiffs vehicle was stopped at the time of the subject collision. In opposition, defendant failed to raise a triable issue of fact as to the existence ofnon-negligent explanation for the collision (see Xiii Fang Xia vSaft, supra; Gelo v Meehan, supra; Buchanan v Keller, 169 AD3d 989, 991 NYS3d 252 [2d Dept 2019]). Assuming arguendo that plaintiff's vehicle came to came to a sudden stop, ''vehicle stops which are foreseeable under the prevailing traffic conditions; even if sudden and frequent, must be anticipated by the driver who follows'' (Catanzaro vEdery;, supra at 996, quoting [* 4] 4 of 5 INDEX NO. 615035/2017 FILED: SUFFOLK COUNTY CLERK 01/21/2020 03:55 PM NYSCEF DOC. NO. 37 RECEIVED NYSCEF: 01/21/2020 Marolda v Kteinces Index No, 17-615035 Page 5 Arslan v Costello; 164AD3d 1408, 1409-1410, 84 NYS3d 229 [2d Dept 2018]; see Buchanan v Keller, supra;Annan vNew YorkState Off. ofMentalHealth, 165AD3d 1020, 87 NYS3d 70 [2dDept 2018]). Absent evidence that defendant maintained a reasonably safe distance and speed behind plaintiff's vehicle, defendant's claim· that plaintiff's vehicle came to. a sudden stop isihsufficient to preclude summary judgment(see Hackney vMonge, 103 AD3d 844,960 NYS2d 176 [2d Dept 2013]; Taingv Drewery; l00AD3d 740, 954 NYS2d 175 [2d Dept 2012]). Accordingly, the· motions by plaintiff and defendant are granted. Dated: January 21, 2020 Hon. Acti FINAL DISPOSITION [* 5] X 5 of 5 NON'-FINAL DISPOSITION
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