Okhrimenko v Albano

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Okhrimenko v Albano 2020 NY Slip Op 35269(U) September 30, 2020 Supreme Court, Westchester County Docket Number: Index No. 69951/2019 Judge: Sam D. Walker 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 10/05/2020 03:19 PM NYSCEF DOC. NO. 18 INDEX NO. 69951/2019 RECEIVED NYSCEF: 10/05/2020 commence the the statutory statutory time time To commence period for for appeals appeals as of of right right period you are (CPLR 5513 [a]), you advised to to serve serve a copy copy of of this this advised order with with notice notice of of entry, entry, order, upon all parties. parties. upon J SUPREME COURT COURT OF THE THE STATE STATE OF NEW NEW YORK YORK SUPREME WESTCHESTER COUNTY COUNTY . WESTCHESTER PRE SEN HON. SAM SAM D. WALKER, WALKER, J.S.C. J.S.C. P RES E N T: HON. ______________________________________________________ -----------------x ----------------------------------·--------------·---x RUSLAN OKHRIMENKO, OKHRIMENKO, RUSLAN DECISION & ORDER ORDER . DECISION Index No. 69951/2019 69951/2019 Index Seq. 1 Plaintiff, Plaintiff, -against-againstFRANK ALBANO ALBANO and JESSE JESSE HERNANDEZ, HERNANDEZ, FRANK Defendants. Defendants. ______________________________________________________ ------------------x ------------------------ -----x The following following papers papers were were read on a motion motion for for summary summary judgment pursuant to The judgment pursuant CPLR 3212, 3212, on the the issue issue of of liability: liability: CPLR Notice of Motion/Affirmation/Exhibits Motion/Affirmation/Exhibits 1-4 Notice Affirmation in Opposition Opposition Affirmation Reply Affirmation Affirmation Reply Upon the the foregoing foregoing papers papers it is ordered ordered that that the the m_otion motion is GRANTED. GRANTED. Upon FACTUAL AND AND PROCEDURAL PROCEDURAL BACKGROUND BACKGROUND FACTUAL The plaintiff, plaintiff, Ruslan Ruslan Okhrimenko, Okhrimenko, commenced commenced this this action action to recover recover damages damages for The alleged serious serious injuries injuries sustained sustained in a motor motor vehicle vehicle accident accident that that occurred occurred on May May 2; alleged 2018, on the the southbound southbound Sprain Sprain Brook Brook Parkway Parkway in Westchester Westchester County, County, New New York. York. The The 2018, plaintiff alleges alleges that that he brought brought his vehicle vehicle to a slow slow and gradtJal gradl!al stop stop due due to traffic traffic plaintiff conditions on the the roadway roadway ahead ahead and after after being being stopp~d stopp~d for for approximately approximately thirty thirty conditions seconds, his vehicle vehicle was was struck struck in the rear by the the vehicle vehicle bearing bearing New New York York License License seconds, Plate GKD5648, GKD5648, operated operated by Frank Frank Albano. Albano. The The plaintiff plaintiff asserts asserts that that the the impact impact was was so Plate 1 [* 1] 1 of 6 FILED: WESTCHESTER COUNTY CLERK 10/05/2020 03:19 PM NYSCEF DOC. NO. 18 INDEX NO. 69951/2019 RECEIVED NYSCEF: 10/05/2020 sever that his vehicle was pushed into the vehicle ahead of him. The plaintiff now files the instant motion seeking summary judgment against the defendants pursuant to CPLR 3212 on the issue of liability. In support of his motion, the plaintiff relies upon his attorney's affirmation, his affidavit, the police report and copies of the pleadings. The defendants, by their attorney, oppose the motion, arguing that the plaintiff and his counsel's papers aver that· the driver of the vehicle that struck the plaintiffs vehicle was Frank Albano, but that is incorrect and contradicts the police report, which clearly states that the driver was Jessee Hernandez. The attorney further states that the complaint also states that Frank Albano operated vehicle, which allegation·was denied by the defendants in their answer. In reply, the plaintiffs attorney argues that there defendants have not raised any genuine issue of fact in response to the plaintiffs motion and even assuming that the defendants' claim of mis-designation of the defendants' vehicle operator and owner is true, such is not an issue of material fact requiring denial of the plaintiffs motion. Discussion "[T]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). Only when such a showing has been made must the opposing party set forth evidentiary proof establishing the existence of a material issue of fact, Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). "A rear-end collision with a stopped or stopping vehicle creates a prima facie 2 [* 2] 2 of 6 FILED: WESTCHESTER COUNTY CLERK 10/05/2020 03:19 PM NYSCEF DOC. NO. 18 INDEX NO. 69951/2019 RECEIVED NYSCEF: 10/05/2020 case of negligence with respect to the operator of the moving vehicle, and imposes a duty on that operator to rebut the inference of negligence by providing a nonnegligent explanation for the collision" (see Sokolowska v Song, 123 AD3d 1004 [2d Dept 2014]); see also Agramonte v City of New York, 288 AD2d 75, 76 [2001]; Johnson v Phillips, 261 AD2d 269, 271 [1999]; Danza v Longieliere, 256 AD2d 434, 435 [1998], Iv dismissed 93 NY2d 957 [1999]). In this case, the Court finds that the plaintiff has made out a prima facie showing of his entitlement to summary judgment. The evidence submitted by the plaintiff establishes entitlement to summary judgment as a matter of law, thereby shifting the burden to the defendants to demonstrate the existence of a factual issue requiring a trial (see Macauley v Elrac, Inc., 6 AD3d 584, 585 [2d Dept 2004]) [Rear-end collision is sufficient to create a prima facie case of liability.] If the operator of the striking vehicle fails to rebut this presumption and the inference of negligence, the operator of the stopped vehicle is entitled to summary judgment on the issue of liability (see Leonard v City of New York. 273 AD2d 205 [2d Dept 2000]; Longhito v Klein. 273 AD2d 281 (2d Dept 2000]; Velasquez v Quijada. 269 AD2d 592 [2d Dept 2000]; Brant v Senatobia Operating Corp., 269AD2d 483 [2d Dept 2000]). Upon viewing the evidence in a light most favorable to the non-moving party (Pearson v Dix McBride, LLC, 63 AD3d 895, 895 [2d Dept 2009]), and upon bestowing the benefit of every reasonable inference to that party (Rizzo v Lincoln Diner Corp., 215 AD2d 546, 546 [2d Dept 1995]), the Court finds that the defendants have failed to rebut the plaintiffs prima facie showing. [* 3] 3 of 6 ork Vehicle and Traffic Law~ 1129 states in pertinent part that: FILED: WESTCHESTER COUNTY CLERK 10/05/2020 03:19 PM NYSCEF DOC. NO. 18 INDEX NO. 69951/2019 RECEIVED NYSCEF: 10/05/2020 driver of a motor vehicle shall not follow another another vehicle more closely The driver reasonable and prudent, having due regard for the speed of such than is reasonable vehicles and the traffic upon and the condition of the highway. NY VTL § ~ vehicles 1129 (a) In (Leal (Leal v Wolff), the Second Department Department held that "[s]ince the defendant defendant was In distance between his car and [the plaintiff's] plaintiff's] car (see under a duty to maintain a safe distance absence of a non Vehicle and Traffic Law Section 1129[a]), his failure to do so in absence explanation constituted constituted negligence negligence as a matter of law" negligent explanation (Leal v Wolf Wolf 224 (Leal AD2d 392 [2d Dept 1996]). automobile approaches approaches from the rear, he or she Further, "[w]hen the driver of an automobile reasonably safe rate of speed and control over his or her vehicle, is bound to maintain a reasonably exercise reasonable reasonable care to avoid colliding with the other vehicle" (see Zweeres Zweeres and to exercise Materi, 94 AD3d 1111 1111 [2d Dept 2012]). "Drivers have a duty to see what what should be v Materi, circumstances to avoid an accident" seen and to exercise reasonable care under the circumstances (Id.). (Id.). Here, the defendants fail to offer any non-negligent explanation for the accident and the opposition does not create any issues of material fact with regard to liability. Although, the plaintiff's affidavit may have mixed up the driver with the owner of the vehicle, there is no dispute that both the alleged vehicle struck the plaintiff's vehicle while stopped. The plaintiff submitted the certified police report which states that the defendant, Jesse Hernandez, was operating the vehicle and that the defendant, Frank Albano, is the owner of the vehicle. Further, the complaint alleges both alternatives for 4 [* 4] 4 of 6 FILED: WESTCHESTER COUNTY CLERK 10/05/2020 03:19 PM NYSCEF DOC. NO. 18 INDEX NO. 69951/2019 RECEIVED NYSCEF: 10/05/2020 ownership and operator operator of the vehicle. vehicle. Further, Further, none none of of the defendants defendants have the ownership submitted affidavits affidavits in opposition opposition to the plaintiff's plaintiff's motion motion for for summary summary judgment. judgment. submitted Furthermore, the need to conduct conduct discovery discovery does does not warrant warrant denial denial of the Furthermore, motion, since since the plaintiff plaintiff who who submitted submitted an affidavit, affidavit, has personal personal knowledge knowledge of the motion, relevant facts facts of the accident accident and the defendants defendants did not submit submit their their own affidavits affidavits to relevant dispute any of the plaintiff's plaintiff's allegaUons allegations (see Niyazov Niyazov v Bradford, Bradford, 13 AD3d Dept dispute AD3d 501 [2d Dept 2004]). The The defendants defendants failed failed to demonstrate demonstrate that that discovery discovery would would lead to relevant relevant 2004]). evidence (Rodriguez (Rodriguez vFarre/1, vFarrell, 115 AD3d Dept 2014]). 2014]). evidence AD3d 929, 931 [2d Dept With regard regard to dismissal dismissal of the defendants' defendants' first and second second affirmative affirmative defenses, defenses, With Court also also grants grants such relief. TJ,e T!le plaintiff plaintiff submitted submitted an affidavit affidavit and police police report report as the Court accident occurred, occurred, showing showing no culpability culpability on his part and none none of the to how the accident defendants offered offered any any opposition, opposition, thereby, thereby, providing providing no reason reason to deny deny that that part part of the defendants motion. motion. Accordingly, based based on all the foregoing, foregoing, it is Accordingly, ORDERED that that the plaintiff's plaintiff's motion motion for for summary summary judgment issue of ORDERED judgment on the issue liability and dismissal defendants' first and second second affirmative affirmative defenses defenses is liability dismissal of the defendants' GRANTED. GRANTED. The parties parties are directed directed to appear appear before before the Preliminary Preliminary Conference Conference Part on on The date to be determined. determined. a date 5 [* 5] 5 of 6 FILED: WESTCHESTER COUNTY CLERK 10/05/2020 03:19 PM NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 10/05/2020 The foregoing foregoing shall shall constitute constitute the Decision Decision and Order Order of of the the Court. Court. The Dated: White White Plains, Plains, New New York York Dated: September 30, 2020 2020 September ~. HaN. SAM SAM D. WALKER, WALKER, J.S.C. J.S.C. HON. 6 [* 6] INDEX NO. 69951/2019 6 of 6

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