Chavez v Murabito

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Chavez v Murabito 2020 NY Slip Op 34993(U) June 16, 2020 Supreme Court, Westchester County Docket Number: Index No. 52121/2019 Judge: William J. Giacomo 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 06/16/2020 02:10 PM NYSCEF DOC. NO. 54 INDEX NO. 52121/2019 RECEIVED NYSCEF: 06/16/2020 commence the statutory To commence statutory time time period for appeals as of of right right period for appeals advised (CPLR 5513 [a]), you you are advised to serve serve a copy copy of of this to this order, order, with with notice of of entry, entry, upon upon all parties. parties. notice SUPREME COURT COURT OF THE STATE OF NEW NEW YORK SUPREME THE STATE YORK COUNTY OF WESTCHESTER COUNTY WESTCHESTER PRESENT: HON. HON. WILLIAM GIACOMO, J.S.C. PRESENT: WILLIAM J. J. GIACOMO, J.S.C. ______________________________________________________ --------------------X --------------------------------------------------------------------------- X CAMERON CHAVEZ, CHAVEZ, CAMERON Plaintiff, Plaintiff, Motion Motion Seq. 1 & 2 - against-against- JAMES JAMES R. MURABITO MURABITO and JAMES JAMES J. MURABITO, MURABITO, Defendants. Defendants. _____________________________ Index No. 52121/2019 52121/2019 Index DECISION & & ORDER ORDER DECISION - - -- - - - - - - - - x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - X JAMES R. MURABITO MURABITO and JAMES JAMES J. MURABITO, MURABITO, JAMES Plaintiff, Plaintiff, - against-againstADRIAN R. GRANT GRANT and EBO EBO LOGISTICS LOGISTICS LLC, ADRIAN Defendants. Defendants. ___________________________________________________________________________ x --------------------------------------------------------------------------- X action to recover recover damages damages for personal injuries injuries (1) the plaintiff plaintiff moves moves for for In an action for personal partial summary summary judgment issue of of liability liability pursuant pursuant to CPLR CPLR 3212; 3212; and (2) the partial judgment on the issue the third-party defendants defendants move move for summary judgment dismissing the complaint: third-party for summary judgment dismissing the third-party third-party complaint: Papers Considered Considered Papers 1. 2. 3. 4. 5. 6. Notice of Motion/Affirmation Motion/Affirmation of of Michael Michael Z. Huguenot, Huguenot, Esq./Exhibits Esq./Exhibits A-G; Notice A-G; Notice of of Motion/Affirmation Motion/Affirmation of Kevin Gerard Gerard Maguire, Maguire, Esq./Exhibits Esq./Exhibits A-H; Notice A-H; Affirmation of George George M. Lesnett, Lesnett, Esq. in Opposition; Opposition; Affirmation Affirmation of Affirmation of George George M. Lesnett, Lesnett, Esq. in Opposition; Opposition; Reply Affirmation of Michael Michael Z. Huguenot, Huguenot, Esq.; Esq.; Reply Affirmation of Reply Affirmation of Kevin Gerard Maguire, Reply Affirmation of Gerard Maguire, Esq. Factual and and Procedural Procedural Background Background Factual Plaintiff was passenger in a vehicle operated by the defendant James R. Plaintiff was a passenger vehicle operated the defendant James R Murabito and owned owned by the James J. Murabito, Murabito, which involved in an Murabito the defendant defendant James which was was involved accident on December December 29, 2018, party defendant defendant accident 2018, with a vehicle vehicle operated operated by the third party Adrian R. Grant Grant and owned owned by the third party defendant defendant Ebo Logistics Logistics LLC. Adrian third party [* 1] The Murabito Murabito vehicle speed on northbound northbound 195. The vehicle was was traveling traveling at a high rate of speed James R. Murabito Murabito testified drank four beers earlier earlier in the evening. As he James testified that that he drank four to six beers the evening. 1 of 4 ttA nte tto chanae ass a truck, truck, he hit a pothole struck a wall, became "ttAmnted chanae lanes lanes to pass pothole and struck became FILED: WESTCHESTER COUNTY CLERK 06/16/2020 02:10 PM NYSCEF DOC. NO. 54 INDEX NO. 52121/2019 RECEIVED NYSCEF: 06/16/2020 52121/2019 Chavez v. Murabito, Index No. 52121/2019 Murabito, Index down the highway airborne, crashed skidded down highway upside upside down. down. Murabito Murabito truck, and skidded the truck, crashed into the airborne, driving. reckless intoxicated was arrested and convicted of driving while intoxicated and reckless driving. while driving convicted of was arrested of a summons filing of the filing with the Plaintiff commenced against the defendants summons defendants with action against commenced this action Plaintiff operator the Grant, against action against Grant, and complaint. complaint. The Murabitos Murabitos commenced operator third-party action commenced a third-party of ESO Logistics. Logistics. truck, and EBO of the truck, that arguing that Plaintiff moves for partial summary summary judgment issue of of liability liability arguing judgment on the issue for partial Plaintiff moves opposition, the Murabitos of Murabito. the accident was solely caused caused by the actions actions of Murabito. In opposition, Murabitos was solely the accident argue exist as to plaintiff's plaintiff's negligence. negligence. fact exist of fact issues of that issues argue that third-party dismissing the third-party judgment dismissing Grant and Ebo Logistics Logistics move move for summary judgment for summary Grant was the sole that Murabito complaint Grant was negligent and that Murabito was sole was not negligent that .Grant grounds that complaint on the grounds fact of that an issue proximate cause cause of the accident. accident. In opposition, Murabitos argue argue that issue of fact opposition, the Murabitos proximate was to be what there seeing what exists as to whether Grant exercised reasonable care in seeing there was exercised reasonable whether Grant exists seen. seen. Discussion Discussion facie judgment must The proponent proponent of a motion motion for for summary must make make a prima prima facie summary judgment The evidence sufficient evidence to tendering sufficient of law, tendering showing of of entitlement matter of judgl)lent as a matter entitlement to judglJ1ent showing eliminate any material issues issues of Winegrad v N. Y. Y. Univ. Med. Ctr., case (see Winegrad from the case fact from of fact any material eliminate 557,562 64 NY2d NY2d 851,853 City of of New New York, 49 NY2d NY2d 557, 562 [1980]). [1980]). Zuckerman v City {1985]; Zuckerman 851,853 [1985]; "Once been made, made, however, however, the burden burden shifts shifts to the party party showing has been "Once this showing admissible in proof evidentiary produce to opposing the motion for summary judgment produce evidentiary proof admissible judgment opposing the motion for summary which require fact which form sufficient sufficient to establish material issues issues of fact require a trial of existence of material establish the existence Zuckerman v City (Alvarez v Prospect Prospect Hasp., [1986]; see Zuckerman City Hosp., 68 NY2d 320, 324 [1986]; action" (Alvarez the action" .. 562) at NY2d 49 of New York, New of for summary of [his or] her "An innocent innocent passenger passenger ... ... who, her motion motion for summary support of who, in support of control losing driver from judgment, submits eviden<;e that the accident resulted from the driver losing control of the resulted accident judgment, submits evidenc;:e that explanation" exculpatory explanation" with an exculpatory vehicle, burden to the forward with come forward driver to come the driver shifts the burden vehicle, shifts AD3d Parikh, v Pandey (Siegel v Terrusa, Terrusa, 222 AD2d Dept 1995]; 1995]; Pandey Parikh, 57 AD 3d 428-429 [2d Dept AD2d 428, 428-429 (Siegel not does plaintiff a judgment summary 634, 635 [2d Dept 2008]). "To entitled to partial summary judgment plaintiff does partial entitled be "To Dept 2008]). 634, fault" comparative fault" bear the ... ... burden burden of ... the absence absence of his or her her own comparative establishing ... of establishing bear 324-325 [2018]). (Rodriguez v City City of of New New York, 31 31 NY3d 324-325 [2018]). (Rodriguez the issue judgment on the summary judgment Plaintiff demonstrate demonstratedd entitlement partial summary issue of of entitlement to partial Plaintiff judgment summary to entitlement summary judgment liability. More~ver, Moreover, third party defendants demonstratedd entitlement defendants demonstrate third party liability. dismissing the third-party complaint. third-party complaint. dismissing were Murabito were The evidence evidence demonstrates that prior prior to the accident accident plaintiff plaintiff and Murabito demonstrates that The th was mother's 50 th birthday. at restaurant in Larchmont Larchmont celebrating celebrating Murabito's Murabito's mother's birthday. Plaintiff Plaintiff was at a restaurant drink at the party. the Plaintiff testified alcoholic drink party. He arrived arrived at one alcoholic only had one that he only testified that the DJ. Plaintiff equipment DJ his took parents the party party with his own parents. parents. At party, his parents took equipment At the end of the party, he was because that testified He Murabito. home while plaintiff plans to out with Murabito. testified that because was with out go plans had home while plaintiff 2 [* 2] 2 of 4 FILED: WESTCHESTER COUNTY CLERK 06/16/2020 02:10 PM NYSCEF DOC. NO. 54 INDEX NO. 52121/2019 RECEIVED NYSCEF: 06/16/2020 Chavez v. Murabito, Murabito, Index Index No. 52121/2019 52121/2019 OJ booth, booth, he did not not spend spend much much time Murabito during during the party. After leaving in the DJ time with with Murabito the party. After leaving the restaurant, they drove to Murabito's Murabito's apartment apartment in New New Rochelle Rochelle and stayed stayed longer longer the restaurant, they drove than expected. expected. During During the drive from from Larchmont Larchmont to N~w New Rochelle, Rochelle, plaintiff plaintiff testified than the drive testified that that Murabito's driving was fine. While at Murabito's apartment, plaintiff did not observe Murabito's driving was While Murabito's apartment, plaintiff observe Murabito drink drink any any alcohol alcohol and plaintiff plaintiff did not consume consume any any alcohol. alcohol. Murabito Murabito did not Murabito show any signs signs of being intoxicated. intoxicated. Plaintiff Plaintiff decided decided to just home instead instead of of going going out out show any just go home Murabito drove drove him home. home. As they they drove drove through through the tolls northbound 195, 195, plaintiff plaintiff and Murabito tolls on northbound testified Murabito was was driving driving very very fast. He asked asked Murabito Murabito to slow slow down. down. testified that that Murabito Approximately thirty seconds seconds later later the accident accident occurred. occurred. Approximately thirty Murabito testified that he had four beers at the party. He confirmed confirmed that that Murabito testified that four to six beers the party. plaintiff was OJ booth, booth, however, however, he testified testified that that they they were drinking beer beer together. together. the DJ were drinking plaintiff was in the Murabito testified that he and plaintiff plaintiff took Uber back back to his apartment apartment in New New Rochelle Rochelle Murabito testified that took an Uber where stayed for for thirty minutes. Plaintiff Plaintiff then home so Murabito Murabito drove drove where they they stayed thirty minutes. then wanted wanted to go home plaintiff in his father's father's BMW. BMW. Murabito Murabito testified testified that was driving driving approximately approximately 70 to 80 plaintiff that he was northbound 195. 195. He was was attempting attempting to pass Grant's Grant's truck, testified was truck, which which he testified mph on northbound traveling middle lane, when struck a pothole pothole which which caused caused his vehicle when he struck vehicle traveling at 55 mph in the middle to hit a wall wall and the truck. At some point, the vehicle turned upside down and all of the truck. some vehicle turned upside down airbags deployed. deployed. airbags Plaintiff was solely Plaintiff and third party party defendants defendants established established that that the accident accident was solely caused caused when Murabito, while while driving driving at an excessive excessive speed, speed, lost lost control control of the vehicle, when Murabito, vehicle, and struck struck wall, collided collided with Grant's Grant's truck, truck, went airborne, and overturned. overturned. Third Third party party defendants defendants a wall, went airborne, also demonstrated demonstrated that Grant was was driving driving within within the limit and that that the accident accident was was also that Grant the speed speed limit solely the actions solely caused caused by the actions of of Murabito. Murabito. opposition, the Murabitos Murabitos failed issue of fact Mughal v In opposition, failed to raise a triable triable issue fact (see Mughal Rajput, 106 AD3d Dept 2013]; 2013]; Siegel Siegel v Terrusa, 222 AD2d Pandey v Parikh, Parikh, AD3d 886 [2d Dept AD2d 428; 428; Pandey Rajput, AD3d 634). 634). While While a passenger passenger in a vehicle required to exercise exercise reasonable reasonable care care for for 57 AD3d vehicle is required safety (see Posner Posner v Hendler, Hendler, 302 AD2d AD2d 509 [2d Dept Dept 2003]), 2003]), the Court Court his or her own safety finds plaintiff demonstrated, demonstrated, as a matter matter of of law, that that he exercised exercised reasonable reasonable care finds that that plaintiff under the circumstances (c.f. (c.t. Posner Posner v Hendler, Hendler, 302 AD2d [finding an issue issue of of fact under the circumstances AD2d 509 [finding fact passenger's comparative comparative negligence negligence where where the passenger failed failed to protest protest the as to the passenger's the passenger the driver's conduct conduct or request request that that she be let out of of the vehicle]). vehicle]). In opposition, opposition, Murabito Murabito driver's failed raise a triable issue of of fact fact as to plaintiff's plaintiff's comparative comparative negligence negligence failed to raise triable issue 3 [* 3] 3 of 4 FILED: WESTCHESTER COUNTY CLERK 06/16/2020 02:10 PM NYSCEF DOC. NO. 54 INDEX NO. 52121/2019 RECEIVED NYSCEF: 06/16/2020 Chavez v. Murabito, Murabito, Index Index No. 52121/2019 52121/2019 Accordingly, Accordingly, it is ORDERED that that plaintiffs plaintiff's motion motion for for partial partial summary summary judgment issue of of ORDERED judgment on the issue liability liability is GRANTED GRANTED (motion (motion sequence sequence #1); and it is further further - ORDERED judgment ORDERED that that the third-party third-party defendants' defendants' motion motion for summary summary judgment dismissing the third-party third-party complaint complaint is GRANTED GRANTED and the the third-party third-party complaint complaint is dismissing DISMISSED DISMISSED (motion (motion sequence sequence #2). Counsel for all parties parties are directed directed to appear appear in the the Compliance Compliance Part, Part, room room 800, sao, Counsel for further further proceedings, proceedings, at a date date and time time to be provided. provided. fo~ Dated: Dated: White White Plains, Plains, New New York York June 16, 2020 2020 June MASTER LIST LIST - 2/Chavez 2JChavez v. Murabito Murabito H: ALPHABETICAL ALPHABETICAL MASTER 4 [* 4] 4 of 4

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