Marker v Kennedy

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Marker v Kennedy 2020 NY Slip Op 35216(U) September 28, 2020 Supreme Court, Dutchess County Docket Number: Index No. 2019-53891 Judge: Christi J. Acker 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: DUTCHESS COUNTY CLERK 09/30/2020 02:18 PM NYSCEF DOC. NO. 15 INDEX NO. 2019-53891 RECEIVED NYSCEF: 09/28/2020 To commence commence the 30-day To 30-day statutory time appeals statutory time period period for appeals as of of right right (CPLR (CPLR 55 5513[a]), l3[a]), you you are advised to serve a copy of this copy of this order, of entry, entry, upon order, with notice notice of all parties. parties. SUPREME COURT COURT OF THE THE STATE STATE OF NEW SUPREME NEW YORK YORK COUNTY OF DUTCHESS COUNTY DUTCHESS -------------------------------------------------------------x -------------------------------------------------------------)( DAVID J. MARKER, DAVID MARKER, Plaintiff, Plaintiff, -against-against- DECISION ORDER DECISION AND AND ORDER Inde)( Index No.: No.: 2019-53891 2019-53891 BRENDAN and PATRICK J. PATRICKJ. BRENDAN L. KENNEDY KENNEDY and KENNEDY, KENNEDY, Defendant. Defendant. -------------------------------------------------------------x -------------------------------------------------------------)( The following papers, Plaintiff David David J. Marker's Marker's The following papers, numbered numbered 1I to 12, were were read read on Plaintiff (hereinafter "Plaintiff') "Plaintiff") motion motion pursuant CPLR 3212 3212 for partial (hereinafter pursuant to CPLR partial summary summary judgment judgment on the issue issue of liability against Defendants Defendants Brendan of liability against Brendan 1. L. Kennedy Kennedy and Patrick Patrick J. Kennedy Kennedy (hereinafter (hereinafter "Defendant Brendan" and "Defendant Patrick" individually individually or "Defendants" collectively): "Defendant Brendan" "Defendant Patrick" "Defendants" collectively): Notice of Motion-Affirmation of Michael Mainetti, Esq.-E)(hibits , I-ll Motion-Affirmation of Michael A. Mainetti, Esq.-Exhibits A-I.. A-I.. .................. 1-11 Notice of -Affirmation in Opposition Opposition of of Tristan Tristan Smith, Smith, Esq .Affirmation Esq ....................................................... :...... 12 Plaintiff commenced this injury action action on or about about September September 26, 2019 Plaintiff commenced this personal personal injury 2019 against against Defendants regarding accident that that occurred 21,2019 appro)(imately 10: 10:16 2019 at approximately 16 p.m. Defendants regarding a car car accident occurred on August August 21, in Rhinebeck, Rhinebeck, New New York. York. Plaintiff alleges that on that that date, date, he was stopped on State State Route Plaintiff alleges was stopped Route 9 for appro)(imately 3 or 4 minutes, minutes, waiting waiting for traffic clear in front front of of him. him. traffic to clear approximately While stopped; While he was stopped; his vehicle struck in the the rear owned by Defendant Defendant Patrick Patrick and and driven driven by Defendant Defendant vehicle was struck rear by a vehicle vehicle owned Brendan. Brendan. Plaintiff now moves summary judgment accident ground that that this this is a rear-end rear-end accident Plaintiff now moves for summary judgment on the ground [* 1] 1 of 4 and Defendants' sale no nro)(imate ofthe aaccident. an efe a ts' neQ:liQ:ence t!!e ce is ·s the th sole ·mat ccause se oft ci In ssunnort no of the t motion. oti INDEX NO. 2019-53891 FILED: DUTCHESS COUNTY CLERK 09/30/2020 02:18 PM NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 09/28/2020 rep01i and police report the police copy of Plaintiff submits the pleadings, of the and the the Particulars, a copy of Particulars, Bills of his Bills pleadings, his Plaintiff submits deposition transcripts of of Plaintiff and Defendant Brendan. Defendant Brendan. Plaintiff and deposition transcripts an submits an Defendant submits opposition, Defendant In opposition, attorney affirmation affirmation. . attorney the rear by was struck It is uncontested Plaintiff was driving was struck in the was driving _that Plaintiff vehicle that the vehicle that the uncontested that It is Defendants' vehicle. Defendants' vehicle. traffic for was stopped that he was confirms that Plaintiffs stopped in traffic for testimony confirms deposition testimony Plaintiffs deposition / rear. approximately struck in the rear. when he was struck minutes when ely 3-4 minutes approximat Brendan Defendant Brendan addition, Defendant In addition, rear. that he struck time that the time testified Plaintiffs vehicle vehicle was was stopped stopped at the struck it in the rear. that Plaintiffs testified that the Finally, the Finally, the fact that stopped at the time Defendant struck struck it is also also confirmed confirmed by the time Defendant was stopped vehicle was Plaintiff's vehicle that Plaintiffs fact Police Report. 1I Accident Report. Police Accident prima facie case establishes a prima vehicle establishes "A rear-end collision with stopped or stopping stopping vehicle case of of with a stopped rear-end collision "A operator to come that operator requiring that vehicle, requiring negligence on the part part of of the of the rear come forward forward rear vehicle, operator of the operator negligence of inference of the inference rebut the with evidence of of a nonneglige nonnegligentnt explanation explanation for the collision collision in order order to rebut with evidence negligence." negligence." 2016]. Oreel v. Dept 2016]. AD3d 937 [2d Dept Haber, 140 AD3d v. Haber, Orce! Plaintiff has As Plaintiff has established established his his Defendants. shifts to Defendants. prima burden shifts case, the burden facie case, prima facie or he or rear, he the rear, another automobile "When the of an automobile automobile approaches automobile from from the approaches another driver of the driver "When prevailing the prevailing under the speed under she is bound to maintain maintain a reasonably distance and rate of of speed reasonably safe distance is bound she conditions avoid colliding with the other other vehicle." vehicle." colliding with conditions to avoid Dept. 2013]. 2013]. Dept. AD3d 464 [2d l 09 AD3d Murray, 109 v. Murray, Sayyed Sayyed v. rebut the required to rebut Brendan is required Defendant Brendan As the the vehicle, Defendant moving vehicle, the moving of the operator of the operator was the collision whether the inference of negligence explain whether collision was position to explain best position the best because he "is in the negligence because inference of pavement, or some wet pavement, skidding on a wet due to, inter mechanical l failure, some unavoidable skidding failure, an unavoidable inter alia, a mechanica due not, was not, which it moving, which was moving, vehicle was Plaintiffs vehicle further notes Defendant Brendan it was that Plaintiffs thought that Brendan thought 1 This that Defendant notes that Report further This Report and roadway the to attention pay failed or distracted and notes that "it is believed that [Defendant Brendan] was distracted failed to pay attention to lbe roadway and and notes that "it believed that [Defendant Brendan] traffic conditions.'.:. traffic conditions.'~_ 2 I 2] [* 2 of 4 INDEX NO. 2019-53891 FILED: DUTCHESS COUNTY CLERK 09/30/2020 02:18 PM NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 09/28/2020 other reasonable cause." other reasonable cause." .... Jd. Id. In the instant case, Defendants' instant case, Defendants' counsel counsel attempts attempts to rebut rebut the . " \ inference of of negligence negligence by inferring that Plaintiffs vehicle came to a sudden inference ~y inferring that Plaintiffs vehicle can1e sudden stop. stop. This This argwnent appears appears to be based based upon deposition testimony argument upon Defendant Defendant Brendan's Brendan's deposition testimony regarding regarding the distance at which which he first saw that vehicle was stopped. stopped. distance first saw that Plaintiff Plaintiffss vehicle Counsel asserts asserts that Counsel that Defendant give a more approximation of Defendant Brendan's Brendan's inability inability to give more precise precise approximation of the the space space between between the "suggests" that brought his car to a sudden sudden stop. cars "suggests" that Plaintiff Plaintiff brought However, "suggestion" is However, this this "suggestion" unsupported by the record affidavit from Defendant Brendan has submitted to unsupported record and no affidavit Defendant Brendan has been been submitted support this allegation. allegation. support according to Defendant Defendant Brendan's Brendan's deposition testimony contained In fact, according deposition testimony contained in the the record, record, him was stopped before the accident that the the vehicle vehicle in front he realized realized that front of of him stopped only "briefly "briefly before accident occurred." occurred." When saw the vehicle was stopped, stopped, he took off the gas and When he saw vehicle was took his foot foot off and when when he realized coming close close to the vehicle, vehicle, he just "froze." realized he was coming just "froze." p.22-24. p. 22-24. Mainetti Mainetti Affirmation, Affirmation, Exhibit Exhibit H, testimony, standing standing alone, alone, fails to establish establish that Plaintiffs vehicle This testimony, that Plaintiffs vehicle came came to a sudden stop and does does not raise a triable of fact as to whether sudden not raise triable issue of whether there there was was a nonnegligent nonnegligent explanation for the rear-end rear-end collision. collision. explanation De Castillo Castillo v. v. Sormeley, Sormeley, 140 AD3d AD3d 918, 918, 918-19 918-19 [2d Dept.2016]. Dept. 2016]. Now, Now, therefore, therefore, it is hereby hereby ORDERED that Plaintiffs Plaintiff's motion motion for partial partial sunimary judgment on on the issue issue ofliability ORDERED that summary judgment ofliability is granted; granted; and it is further further ORDERED that, been advi~ed, advised, this scheduled for ORDERED that, as the parties parties have have previously previously been this matter matter is scheduled settlement conference conference on November November 4, 2020 2020 at 10:00 10:00 am. am. a settlement 3 [* 3] 3 of 4 INDEX NO. 2019-53891 FILED: DUTCHESS COUNTY CLERK 09/30/2020 02:18 PM NYSCEF DOC. NO. 15 RECEIVED NYSCEF: 09/28/2020 foregoing constitutes constitutes the Decision Order of of the Court. Court. The foregoing Decision and Order York Dated: Poughkeepsie, Poughkeepsie, New New York September 2020 September 28, 2020 ~'" 1;. Q a l ~__ .-- CHRISTifACKER, CHRISTif. ACKER, J.S.c. J.S.C. To: All parties parties via ECF ECF 4 [* 4] 4 of 4

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