Calli v Stallings
Annotate this Case
Download PDF
Calli v Stallings 2020 NY Slip Op 35202(U) January 14, 2020 Supreme Court, Ulster County Docket Number: Index No. 19-1120 Judge: Richard Mott 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. EF2019-1120 FILED: ULSTER COUNTY CLERK 03/06/2020 NYSCEF DOC. NO. 19 RECEIVED NYSCEF: 11/13/2020 OF THE YORK COURT OF THE STATE STATE SUPREME SUPREME COURT OF NEW YORK OF NEW OF ULSTER ULSTER COUNTY COUNTY OF .---------------------------------------------- ----------------------------X -------------------------------------------------------------------------------X GAYLE GAYLE J. CALLI, CALLI, Plaintiff, Plaintiff, -against-against- DECISION/ORDER DECISION/ORDER Index No. 19-1120 Index No.19-1120 R.J.I. No. 55-19-1708 R.J.I. No. 55-19-1708 Richard J.S.C. Richard Mott, J.S.C. Mott, STEPHEN A. STALLINGS, STEPHEN A. STALLINGS, Defendant. Defendant. ------------------------------------------------------X ---------------------------------------------------------------------------------X Return Date: Motion Return Date: Motion 2019 November 18, 18, 2019 November M ~H~ APPEARANCES: APPEARANCES: Plaintiff: Plaintiff: nefendant: Defendant: Fltaa, 0 6 2020 2020 MAR 08 MAR vi Lipton, Esq. ~vi Esq. ,/ Lipton, Rutberg Breslow Personal Injury Law Breslow Personal Law Injury Rutberg Route 3344 3344 Route 99 North North NY 12601 NY 12601 Poughkeepsie, Poughkeepsie, osnt p "a Postu~ck Nina Ulster County Clerk Patrick Esq. Patrick Finnegan, Esq. Finnegan, Law Offices of John Law of Trop Offices John Trop 94 New Karner 94 New Karner Road, Suite 209 Suite 209 Road, NY Albany, NY 12203 12203 Albany, J. Mott,J. Mott, moves Plaintiff for partial judgrñêñt on the the issue of liability Plaintiff moves for. partial summary judgment on of in action issue in this action this summary liability for personal motor to to recover recover for personal injuries injuries arising from from aa motor vehicle vehicle accident. accident. Defendant opposes. Defendant opposes. arising Background Background In July Plaintiff injured while in her her parked in a In Plain~ffwas injured when, while sitting in vehicle in was parked vehicle a 2016, when, July 2016, sitting which he allegedly he failed to rolled parking lot, unoccupied vehicle, which Defendant's unoccupied failed to secure, rolled lot, Defendant's vehicle, secure, allegedly parking down the the parking lot's incline and struck struck the rear rear of Plaintiffs Plaintiffs vehicle. down lot's incline and the of vehicle. parking Defendant's denial filed asserts general and of asserts aa general denial and defenses of Defendant's answer, filed May defenses answer, 2019, 10, 2019, May 10, negligence for failure failure to wear wear absence of a a serious contributory negligence for to aa seatbelt, absence of physical injury serious physical seatbelt, contributory injury and that the accident that accident resulted from an emergency situation not of of Defendant's Defendant's own making. making. and the resulted from an situation not own emcigency [* 1] 1 of 5 FILED: ULSTER COUNTY CLERK 03/06/2020 NYSCEF DOC. NO. 19 INDEX NO. EF2019-1120 RECEIVED NYSCEF: 11/13/2020 Parties' Contentions Parties' Contentions her upon the complaint complaint and her judgment based Plaintiff claims entitlement to judgment based upon the and entitlemant to summary Plaintiff claims summary contribute she did did not not contribute complaint's allegations and stating that to affidavit reiterating the allegations and that she to the complaint's affidavit stating reiterating incident dated certified of the the police the the Further, she aa certified copy of police incident report, dated the she submits submits the accident accident. report, Further, copy Defendant as the the owner owner of the the parked day the which identifies Defendant as of parked which identifies the accident, accident, day following following struck parked vehicle. Plaintiff that unattended vehicle that struck Plaintiffs parked vehicle. Finally, Plaintiff insists that this unattended vehicle that Plaintiff's insists this Finally, motion is premature because aa summary judgment motion is filed at because judgment motion is properly filed at any time motion is not not premature properly any time summary Defendant failed to proffer proffer rebuttal on the after joinder of and Defendant has to any on issue after joinder of issue issue and has failed the liability issue any rebuttal liability potential in Plaintiffs possession that or potential discovery in exclusive possession that might merit or to Plaintiff's exclusive might merit to indicate indicate discovery of this motion. of motion. deferral deferral this that susssinas because Defendant counters that summary judgment is premature because there has Defendant counters is premature there has been been y judgment or discovery. discovery. avers that Plaintiff has failed no preliminary conference or Further, it that Plaintiff has to no preliminary conference it avers failed to comply Further, comply with his discovery served with his answer, demands with his demands, served with his including demands for and for discovery and demands, answer, discovery including discovery medical inspection, medical records and and bill of Further, he records and authorizations authorizations and a a verified verified bill of particulars. particulars. he inspection, Further, maintains judgment premature maintains that summary judgment is because facts relating to potential that is premature because facts to potential summary relating within defenses, including Plaintiffs comparative negligence, may the Plaintiff's comparative be within the exclusive exclusive defenses, ñêgligence, may be including kñowledge of thereby requiring discovery prior t9 this motion. knowledge of Plaintiff, prior motion. this Plaintiff, thereby discovery requiring adjudicating tp adjudicating Discussion Discussion Judgment Summary Judgment Summary on a To prevail prevail a motion motion for summary the moving To on for judgment, the party must establish must establish judgment, summary moving party entitlement to judgment a matter matter law "by prlma facie facie entitlement to judgment as of sufficient competent as a of law sufficient competent "by adducing adducing prima fact." evidence to show show that there are no no issues issues of material material evidence to that there are of fact" Alvarez vv Prospect Hosp., 68 Alvarez Prospect 68 Hosp., 324 [1986]. when the the movant movant NY2d 320, 324 [1986]. "Only when bears this burden and party bears this burden and the the nonmoving 320, "Only nonmoving party NY2d 22 [* 2] 2 of 5 FILED: ULSTER COUNTY CLERK 03/06/2020 NYSCEF DOC. NO. 19 INDEX NO. EF2019-1120 RECEIVED NYSCEF: 11/13/2020 .' material of fact motion fails to the of issue of the be fails to demonstrate demonstrate the existence existence of any issue fact will will the motion be properly any material properly granted." Staunton 129 AD3d 1371 [3d Dept. Dept. Staunton vv Brooks, Brooks, 129 [3d 2015], citing Lacasse vv Sorbello, 121 granted." AD3d 1371 Lacasse 121 2015], Sorbello, citing AD3d 1241, 1241 Dept. 2014]. 2014]. However, AD3d 1241 [3d [3d Dept However, 1241, "where the moving "where the party has its to judgment, has demonstrated demonstrated its entitlement entitlement to summary judgment, party moving summary the party the motion must demonstrate the opposing the motion must demonstrate by admissible evidence the admissible the evidence party by opposing of a a factual factual existence issue trial of the action tender an acceptable existence of issue requiring aa trial of or an the action or tender acceptable requiring so." for his Zuckerman excuse for to vv City of New York, 49 NY2d 557, 560 NY2d excuse his failure failure to do do so." Zuckerman New 49 560 557, York, City of [1980]. [1980]. motion is not Here, Plaintifr s motion is as has to an Plaintiff's not premature premature Defendant failed to proffer proffer an as Defendant has failed Here, to suggest "evidentiary basis to that discovery might lead to evidence and basis suggest that might lead to relevant relevant evidence and that that "evidentiary discovery essential opposition facts essential to justify opposition to [are] exclusively within the facts to justify to the the motion motion within the [are] exclusively plaintiff." kñowledge control of the v Sisters St. knowledge and of Harrinarain vSistersofSt]oseph, 173 and control the plaintiff." Harrinarain 173 AD3d AD3d Joseph, of 984 [2d Dept 983, 984 [2d 2019]; Dept 983, 2019]; Schleich AD2d [2d Dept for summary cf., vv Gruber, 133 224, 225 [2d 1987] ((cross-motion cross-motion for 133 AD2d 225 Dept cf., Schleich Gruber, 224, 1987] summary denied with there to because there was sufficient reason to judgment properly denied with leave leave to renew, because was sufficient reason to renew, properly judgmêñt believe there were pertinent facts essential to the plaintiff's believe there were pertinent facts essential to case, were within the the plaintifrs which were within the case, which and control control of the hospital that exclusive knowledge and of hospital that might be in exclusive knowledge the defendant defendant might be revealed in revealed discovery). to demands, pretrial discovery). Further, despite Plaintiff's delay in pretrial despite Plaintiff's in responding to discovery Further, demands, delay responding discovery Defendant failed move or or cross-move to to discovery. Herba vv Chichester, 301 Defendant has has failed to move cross-move to compel compel discovery. Herba 301 Chichester, AD2d 822, [3d Dept 2003]. AD2d 823 [3d 2003]. Indeed, Defendant makes no averments concerning 823 Dept Defendant makes no factual factual averments 822, Indeed, concerning the accident accidêñt which occurred proffer three years ago to his the which occurred nearly three years ago and and has has failed failed to proffer own his own neady support. affidavit in support. Tr. Auth., Bailey vv New New York City Auth., 270 157 [1st Dept 2000] affidavit in York 270 AD2d AD2d 156, 157 [1st Dept 156, Bailey City Tr. 2000] for discovery be by need for unless some (summary judgment cannot judgment cannot be avoided avoided a claimed claimed need unless some (summary by a discovery basis is offered lead to that discovery may to evidence). evidentiary basis is offered to suggest suggest that relevant evidence). to relevant evideñtiary may lead discovery Defendant fails to state state for the the conclusory to any for assertion that Moreover, Defendant fails assertion that basis Moreover, any basis conclusory Plaintiff might have Plaintiff might have exclusive control of on of exclusive control of information information on the the issue issue of contributory contributory even upon and in where Plaintiffs vehicle negligence, even upon information information and belief, in circumstances circumstances where Plaintiffs vehicle negligence, belief, 3 3 [* 3] 3 of 5 FILED: ULSTER COUNTY CLERK 03/06/2020 NYSCEF DOC. NO. 19 .' I INDEX NO. EF2019-1120 RECEIVED NYSCEF: 11/13/2020 ~ 171 AD3d from the rear. rear. AD3d 905 [2d Dept Dept was parked in it struck from the Kelly vv Shin, 171 905 [2d when it was struck in a a lot lot when was was parked Shin, Kelly collision or stopping vehicle establishes collision with aa stopped or vehicle establishes aa prima prima facie facie 2019] ((aa rear-end rear-end with stopped 2019] stopping on the operator of the the rear rear that case on part of of vehicle, thereby requiring that case of of negligence negligence the part of the the operator vehicle, thereby requiring negligence nonnegligent explanation for operator to the of by providing providing aa nonnegligent explanation for operator rebut the inference inference of negligence to rebut by 237 AD2d 238 sufficient the cf., Barletta vv Lewis, Lewis, 237 [2d 1997] (where there is the collision); AD2d 238 [2d Dept Dept (where there is sufficient collision); cf., Barletta 1997] reason facts essential opposition to the the motion motion within the reason to believe that facts essential to justify opposition to are the to bêliêvê that to justify are within of the the plaintiff and may through pretrial exclusive knowledge of plaintiff and be revealed through pretrial discovery, exclusive knowledge revealed discovery, may be summary judgment is premature). judgment is premature). summary invocation of the Finally, on here, the of doctrine, without more, on the the facts facts the invocation without the emergency Finally, here, doctrine, more, emergericy an issue issue whether information likewise fails to an of there is in likewise fails to raise raise of fact fact as as to to whether there is information in Plaintiffs Plaintiff's defense. Maisoñét exclusive control crediting such defense. Maisonet vv Roman, Roman, 139 121, 123 [1st Dept exclusive control such 139 AD3d AD3d 123 [1st Dept 121, crediting actions may be negligent if taken are and prudent in 2016] (an (an actor actor not be negligent if the the actions taken are reasonable reasonable and prudent in the the may not 2016] actor did not not create emergency context, so as actor did the Sweeney vv so long as said said create the emergency); emergency); context, emergency long Sweeney 832 was McCormick, 159 [3d 1990] ((emeiscucy emergency doctrine was inapplicable to 159 AD2d AD2d 832 [3d Dept Dept doctrine inapplicable to 1990] McCormick, unoccupied where driver or preclude driver's liability for unoccupied vehicle, where driver had created or driver's for striking had created vehicle, liability striking preclude emergency). contributed to Thus, on record, partial summary judgment for on on this this partial judgment for Plaintiff Plaintiff on contributed to emergency). record, Thus, summary the issue of liability is merited. merited. the of is issue liability the motion motion granted and a a conference conference to set set a a discovery schedule Accordingly, the is and to schedule is granted Accordingly, discovery on remaining issues will on February 2:00 PM at Ulster ·on issues will be on 18, at PM Ulster be held held at 2:00 at the the 18, 2020, 2020, February remaining Courthouse. County Courthouse. County of this constitutes the Decision Decision and Order Order Court. The Court Court the This constitutes the and of Court The is the This this is forwarding forwarding original Decision and Order Order original Decision and directly to who to with the to the the Plaintiff, is required required to comply with who is the Plaintiff, directly comply of CPLR CPLR §2220 provisions of §2220 with regard to and thereof. A photocopy of with regard to filing and entry thereof. A photocopy of the the filing entry provisions 4 4 [* 4] 4 of 5 INDEX NO. EF2019-1120 FILED: ULSTER COUNTY CLERK 03/06/2020 . ,. . NYSCEF DOC. NO. 19 , RECEIVED NYSCEF: 11/13/2020 Decision and Order Order forwarded to all all other other parties appeared Decision and is forwarded to parties who in All is being who appeared in the the action. action. All being original motion papers are being delivered Sups cassc Court original motion papers are delivered by to Clerk for the Court Court to the the Supreme Court Clerk for by the being transmission the County Clerk. transmission to Clerk to the County Dated: New York Dated: Hudson, New York Hudson, 2020 January 14, 2020 14, January RICHARD MÒtT, J.S.C. Papers Considered: Papers Considered: Motion of Motion and Affirmation and of Lipton, Esq., October 28, with 1. Notice of 1. Notice Affirmation of Levi Levi dated October 2019 with Lipton, Esq., dated 28, 2019 Exhibits A-D; Exhibits A-D; Affirmation T. Finnegan, 2. Opposition Affirmation of T. Esq., November 6, 2. Opposition of Patrick Patrick dated November 6, 2018; Finnegan, Esq., dated 2018; Affirmation of Levi 3. Reply Affirmation of Levi Lipton, Esq., dated November 8, 2019. 3. dated November 2019. Lipton, 8, Esq., Reply FILU)_ ..a:_H~ M ...2:.. MARO608 2020 MAR 2020 Nina Postup,c1ck Nina Postupack Ulster County Ulster Clerk Clerk County 55 [* 5] 5 of 5
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
