Krasnow v Finn

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Krasnow v Finn 2020 NY Slip Op 34878(U) February 4, 2020 Supreme Court, Westchester County Docket Number: Index No. 59814/2018 Judge: Charles D. Wood 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: WESTCHESTER COUNTY CLERK 02/25/2020 04:38 PM NYSCEF DOC. NO. 48 INDEX NO. 59814/2018 RECEIVED NYSCEF: 02/25/2020 To commence commence the statutory statutory time time period period for appeals appeals right (CPLR (CPLR 55 5513[a)), l 3[a)), you you are are advised advised to serve serve a copy copy as of right of of this this order, order, with with notice notice of of entry, entry, upon upon all parties. parties. SUPREME SUPREME COURT COURT OF OF THE THE ST STATE ATE OF OF NEW NEW YORK YORK COUNTY OF OF WESTCHESTER WESTCHESTER COUNTY ---------------------------------------------------------------------x ---------------------------------------------------------------------x HELEN HELEN KRASNOW, KRASNOW, Plaintiff, Plaintiff, -against-againstDECISION & ORDER ORDER DECISION Index No. 59814/2018 59814/2018 Index Sequence Nos. Nos. 1&2 1&2 Sequence TERRENCE FINN FINN and and ROBERT ROBERT KRASNOW, KRASNOW, TERRENCE Defendants. Defendants. -------------------------------------------------------------------x -------------------------------------------------------------------x WOOD,J. WOOD,J. New York State Courts Courts Electronic Electronic Filing Filing ("NYSCEF") ("NYSCEF") Documents Documents Numbers Numbers 28-47, 28-47, New York connection with plaintiffs plaintiffs motion motion (Seq 1) for an order order pursuant pursuant to CPLR CPLR 3403 were read in connection granting plaintiff plaintiff a special special preference preference and directing directing the calendar calendar clerk clerk to place place this action action on a granting list of of preferred cases on the ground ground that that plaintiff plaintiff has reached reached the age of of seventy seventy years; years; and preferred cases moving defendant defendant Robert Robert L. Krasnow's Krasnow's motion motion for summary summary judgment pursuant to CPLR CPLR moving judgment pursuant 3212. This is an action action brought brought by plaintiff, plaintiff, a passenger passenger in an automobile automobile owned owned and operated operated This husband, defendant defendant Krasnow, Krasnow, which which was involved involved in a collision collision on February February 26, 26,2018 by her husband, 2018 at P.M., with with the vehicle vehicle owned owned and operated operated by defendant defendant Terrence Terrence Finn. Finn. 7:00 P.M., Upon the foregoing foregoing papers, papers, the motions motions are decided decided as follows follows: : Upon 1 [* 1] 1 of 4 FILED: WESTCHESTER COUNTY CLERK 02/25/2020 04:38 PM NYSCEF DOC. NO. 48 INDEX NO. 59814/2018 RECEIVED NYSCEF: 02/25/2020 Plaintiff moves moves (Seq 1) I) for an order order granting granting a trial preference preference on the ground plaintiff is Plaintiff ground plaintiff over 70 years of of age. No papers papers were were filed in opposition opposition to the motion. over motion. CPLR CPLR 3403(a)(4) 3403(a)(4) provides that that "in "in any action action upon upon the application application of of a party party who who has has reached reached the age of seventy of seventy provides years," such such action action "shall "shall be entitled entitled to a preference." preference." years," view of of the undisputed undisputed evidence evidence that the plaintiff plaintiff has reached reached the age of In view of 70, 70, the plaintiffs motion motion for a trial preference preference based based on age, age, is granted granted (see CPLR CPLR 3403 [a][4]; plaintiffs 3403[a][4]; (Ratnikova v Ziotas, Ziotas, 134 AD3d AD3d 919, Dept 2015]). Having submitted her of her (Ratnikova 919, 920 [2d Dept 2015]). Having submitted a copy copy of United States States passport, passport, plaintiff plaintiff has demonstrated demonstrated a prima prima facie entitlement United entitlement to an age preference pursuant pursuant to CPLR CPLR 3403(a)(4). Accordingly, she is automatically entitled to a special 3403(a)(4). Accordingly, automatically entitled special preference preference (Borenstein (Borenstein v City of of New New York, 248 AD2d AD2d 425 [2d Dept Dept 1998]). 1998]). trial preference Turning to defendant defendant Robert Robert Krasnow's Krasnow's motion motion for summary summary judgment, settled Turning judgment, it is well well settled proponent of of a summary motion must must make make a prima prima facie showing summary judgment judgment motion showing of of that "a proponent entitlement to judgment matter of of law, tendering tendering sufficient sufficient evidence entitlement judgment as a matter evidence to demonstrate demonstrate the absence of of any material material issues issues of of fact" (Alvarez (Alvarez v Prospect Prospect Hosp.. Hosp., 68 NY2d absence NY2d 320, 320, 324 [1986]; see Orange Orange County-Poughkeepsie County-Poughkeepsie Ltd. Ltd. Partnership Partnership v Bonte, Bonte, 3 377 AD3d AD3d 684, 686-687 [2d [1986]; 684, 686-687 Dept 2007]; 2007]; see also Rea v Gallagher, Gallagher, 31 AD3d AD3d 731 [2d Dept Dept 2007]). Once the movant movant has met met 2007]). Once Dept threshold burden, opposing party party must must present present the existence of triable triable issues of fact issues of this threshold burden, the opposing existence of Zuckerman v New York, 49 NY2d NY2d 557, 557,562 [1980];; see also Khan Khan v Nelson, (see Zuckerman New York, 562 [1980] Nelson, 68 AD3d AD3d Dept 2009]). 2009]). Conclusory, Conclusory, unsubstantiated unsubstantiated assertions not suffice 1062 [2d Dept assertions will not suffice to defeat defeat a motion for summary summary judgment (Barclays Bank Bank of York, N.A. Sokol, 128 AD2d AD2d 492 [2d motion judgment (Barclays of New New York, N.A. v Sokol, Dept 1987]). A party party opposing opposing a motion motion for summary summary judgment may do so on the basis of Dept judgment may basis of deposition testimony testimony as well as other other admissible admissible forms of of evidence, evidence, including including an expert's deposition expert' s affidavit, and eyewitness eyewitness testimony testimony (Marconi (Marconi v Reilly. Reilly. 254 AD2d Dept 1998]). 1998]). In affidavit, AD2d 463 [2d Dept deciding a motion motion for summary summary judgment, court is required required to view view the evidence evidence presented presented deciding judgment, the court light most most favorable favorable to the party party opposing opposing the motion motion and draw every every reasonable reasonable "in the light and to draw 2 [* 2] 2 of 4 FILED: WESTCHESTER COUNTY CLERK 02/25/2020 04:38 PM NYSCEF DOC. NO. 48 INDEX NO. 59814/2018 RECEIVED NYSCEF: 02/25/2020 inference from the pleadings proof submitted favor of of the opponent opponent to inference pleadings and the proof submitted by the parties parties in favor motion" (Yelder (Yelder v Walters, Walters, 64 AD3d AD3d 762, 762, 767 [2d Dept Dept 2009] 2009];; see Nicklas Tedlen Realty Realty the motion" Nicklas v Tedlen Corn., 305 AD2d AD2d 385 385,, 386 [2d Dept Dept 2003]). 2003]). The The court court must must accept accept as true the evidence evidence Corp., presented by the nonmoving nonmoving party and must must deny the motion motion if if there there is "even "even arguably arguably any presented doubt as to the existence existence of of a triable triable issue" issue" (Kolivas. (Kolivas v Kirchoff, Kirchoff, 14 AD3d AD3d 493 [2d Dept Dept doubt 2005]); Baker Baker v Briarcliff Briarcliff School School Dist., Dist., 205 AD2d AD2d 652,661-662 652,661-662 [2d Dept Dept 1994 1994]). Summary 2005]); ]). Summary judgment drastic remedy remedy and should should not be granted granted where where there there is any doubt doubt as to existence existence judgment is a drastic of a triable triable issue issue (Alvarez (Alvarez v Prospect Prospect Hospital, Hospital, 68 NY2d 320,324 [[1986]). of NY2d 320,324 1986]). Generally, Vehicle Vehicle and Traffic Traffic Law §1129(a) S 1129(a) imposes imposes a duty on all drivers drivers to drive drive at a Generally, speed and maintain maintain a safe distance distance between always compensating compensating for any known known safe speed between vehicles, vehicles, always adverse road conditions (Ortega (Ortega v City of of New New York, York, 721 NYS2d Dept 2000]). 2000]). Vehicle Vehicle adverse road conditions NYS2d 790 [2d Dept Traffic Law §1143 S 1143 provides provides that the driver driver of of a vehicle vehicle about about to enter enter or cross cross a roadway roadway and Traffic place other other than another another roadway roadway shall yield the right of way all vehicles vehicles approaching approaching from any place right of roadway to be entered entered or crossed. crossed. A driver driver is negligent negligent when when an accident accident occurs occurs because on the roadway because which, through through the proper proper use of of her senses senses he or she should should "he or she has failed to see that which, have seen" seen" Ferrara Ferrara v Castro, Castro, 283 AD2d AD2d 392, 392, 393 [2d Dept Dept 2001]). 2001]). A driver driver is entitled entitled to have anticipate that that another another motorist motorist would would obey the traffic traffic laws that that required required him him to yield anticipate (Lallemand v Cook, Cook, 23 AD3d AD3d 533 ([2d Dept Dept 2005]). 2005]). (Lallemand driver is not required required to anticipate anticipate that a vehicle vehicle traveling traveling in the opposite opposite direction direction A driver cross over over into oncoming oncoming traffic traffic (Eichenwald (Eichenwald v Chaudhry, Chaudhry, 17 AD3d AD3d 403, 403, 404 404 [2d Dept Dept will cross 2005]). ""Crossing double yellow yellow line into the opposing opposing lane of of traffic, traffic, in violation violation of Vehicle Vehicle 2005]). Crossing a double and Traffic Traffic Law § S 11126(a), constitutes negligence negligence as a matter matter of of law, law, unless unless justified l 26(a), constitutes justified by an emergency situation situation not of of the driver's driver's making" making" (Gadon (Gadon v Oliva, Oliva, 294 AD2d AD2d 397 [2d Dept Dept emergency 3 [* 3] 3 of 4 FILED: WESTCHESTER COUNTY CLERK 02/25/2020 04:38 PM NYSCEF DOC. NO. 48 INDEX NO. 59814/2018 RECEIVED NYSCEF: 02/25/2020 2002]). Courts Courts have have held held that that generally generally whether whether an an emergency emergency exists exists and and the the reasonableness reasonableness of 2002]). of the response response does does raise raise issues issues of of fact, fact, those those issues issues may may in appropriate appropriate circumstances be the circumstances be determined as a matter matter of of law law (Koenig (Koenig v Lee, Lee, 53 AD3d AD3d 567 567 [2d [2d Dept Dept 2008]). 2008]). determined Here, the the EBT EBT testimony testimony of both drivers, drivers, Finn Finn and and Krasnow, Krasnow, is sufficiently sufficiently confused, confused, Here, of both confusing, and and vague, vague, to preclude The court court finds finds that that there there is an an issue issue as confusing, preclude summary summary judgment. judgment. The the circumstances circumstances surrounding the head head on on collision, collision, and and whether whether both both parties parties acted to the surrounding the acted reasonably under under these these circumstances circumstances (O'Connor v Lopane, Lopane, 24 24 AD3d AD3d 426 426 [2d [2d Dept Dept 2005]). 2005]). reasonably (O'Connor Since the the evidence viewed, as it must must be, be, in in the the light light most most favorable favorable to plaintiff and Since evidence is viewed, plaintiff and Finn as the the nonmoving nonmoving parties it shows shows the the existence existence of of triable triable issues issues of of fact fact as to the the Finn parties circumstances that that led led to the the accident. accident. circumstances Therefore for for the the above above stated stated reasons, hereby Therefore reasons, it is hereby ORDERED, that that defendant defendant Robert Robert Krasnow' Krasnow's s motion motion for for summary summary judgment denied; ORDERED, judgment is denied; and it is further further and ORDERED, that that the the parties parties are are directed directed to appear appear in the the Settlement Settlement Conference Conference Part Part on on ORDERED, YV'\W-c::.. h '1.. l- Y \.of 1, 20Uat 20Uat 9:15 9: 15 a.m. a.m. in courtroom courtroom 1600 1600 of of the the Westchester Westchester County County Courthouse, Courthouse, l'Y\wc..L·-, III Dr. Dr. Martin Martin Luther Luther King King Jr. Blvd., Blvd., White White Plains, Plains, New York 10601. 10601. 111 New York All matters matters not not herein herein decided decided are are denied. denied. This This constitutes constitutes the the Decision Decision and and Order Order of of All the court. court. the Dated: February 4, 4, 2020 2020 Dated: February White Plains, Plains, New New York York White To: All All Parties Parties by by NYSCEF NYSCEF To: 4 [* 4] 4 of 4

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