Hernandez-Escobar v Ricardo

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Hernandez-Escobar v Ricardo 2020 NY Slip Op 35283(U) September 30, 2020 Supreme Court, Orange County Docket Number: Index No. EF009326-2019 Judge: Maria S. Vazquez-Doles 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: ORANGE COUNTY CLERK 10/01/2020 01:49 PM NYSCEF DOC. NO. 18 INDEX NO. EF009326-2019 RECEIVED NYSCEF: 10/01/2020 To corrnnence the statutory time for appeals as ofright (CPLR 5513 [a]}, you are advised to serve a copy of this order, with notice of entry, on all parties. SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ORANGE JOSE A. HERNANDEZ-ESCOBAR, PLAINTIFF, DECISION & ORDER INDEX NO.: EF009326-2019 Motion date: 06/04/2020 Motion Sequence # 1 -AGAINSTLINDA S. RICARDO, DEFENDANT. VAZQUEZ-DOLES, J.S.C. The following papers numbered 1 - 9 were read on Plaintiffs motion for an Ordert pursuant to CPLR 3212, granting partial summary judgment against defendant on the issue of liability; PAPERS Notice ofMotion/Affinnation (Ianuzzi)/Exhibits 1-5 Affidavit(Hemandez-Escobar) ............................................ . Affirmation in Opposition (Iacobucci) .......................................... .. Affinnation in Further Support ofMotion(Ianuzzi) ........................ . NUMBERED 1-7 8 9 Upon the foregoing it is ORDERED that plaintiffs motion for partial summary judgment on the issue ofliability is GRANTED. Background and Procedural History This personal injury action arises out of a motor vehicle accident that took place on May 28, 2019 on State Route 17 in the Town of Monroe, County of Orange, State of New York. Page 1 of 4 Filed in Orange County [* 1] 10/01/2020 01 :49:49 PM $0.00 1 of 4 Pg: 109 Bk:5139 Index:# EF009326-2019 Clerk: EBR INDEX NO. EF009326-2019 FILED: ORANGE COUNTY CLERK 10/01/2020 01:49 PM NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 10/01/2020 Plaintiff was the operator of a 2003 Lincoln suburban owned by non-party Ignacio Ponce that was struck in the rear by a 2015 Nissan sedan, being operated by Linda S. Ricardo. Plaintiff commenced this action by filing a Summons and Verified Complaint on November 25, 2019. Issue was joined by service of Defendant's Answer with Affinnative Defenses and Demands on December 30, 2019. The Verified Bill of Particulars was served on or about March 11, 2020. Neither party has been deposed. By Notice of Motion filed June 04, 2020, plaintiff seeks partial summary judgment on the grounds of liability only. Plaintiff asserts he is entitled to summary judgment on liability based on the rear-end collision. In support of his motion, plaintiff avers in his Affidavit, that he was traveling on Route 17 in 'stop and go' traffic, that he gradually brought his vehicle to a complete stop when traffic in front of him came to a stop, and that he was struck forcefully from behind by defendant's vehicle (Ex 5). Plaintiff also includes a certified copy of the police accident report which states "Op-1 [defendant] states she went to put down coffee and struck V-2[,]".(Ex. 4). Plaintiff argues that defendant failed to exercise reasonable care to avoid the collision. Plaintiff further argues that defendant was following plaintiff's vehicle too closely, and failed to maintain a safe distance between vehicles as required by statute (see VTL § 1160(a)). In opposition, defendant does not offer a sworn affidavit, but submits only the affinnation of her attorney. Defendant argues that issues of fact exist to be determined at trial, and that plaintiff's motion is premature in that neither party has been deposed. In reply, plaintiff asserts that defendant has not only failed to offer a non-negligent explanation for the accident, but also fails to meet her burden by raising a triable issue of fact. Page 2 of 4 [* 2] 2 of 4 FILED: ORANGE COUNTY CLERK 10/01/2020 01:49 PM NYSCEF DOC. NO. 18 INDEX NO. EF009326-2019 RECEIVED NYSCEF: 10/01/2020 Discussion Summary judgment is a drastic remedy, and is appropriate only when there is a clear demonstration of the absence of any triable issue of fact (see Piccirillo v Piccirillo, 156 AD2d 748 [2d Dept 1989], citing Andre v Pomeroy, 35 NY2d 361 [1974]). The function of the Court on such a motion is issue finding, and not issue determination (see Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395 [1957]). The Court is not to engage in the weighing of evidence; rather, the Court's function is to determine whether "by no rational process could the trier of facts find for the non-moving party" (Jastrzebski v N Shore Sch. Dist., 232 AD2d 677,678 [2d Dept 1996]). The Court is obliged to draw all reasonable inferences in favor of the non-moving party (see Rizzo v. Lincoln Diner Corp., 215 AD2d 546 [2d Dept 1995]). Where there is any doubt about the existence of a material and triable issue of fact, summary judgment must not be granted (see Anyanwu v. Johnson, 276 AD2d 572 [2d Dept 2000]). Where facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility, summary judgment must not be granted (see Jastrzebski, supra, 223 AD2d at 678). A rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the driver of the moving vehicle, in the absence of any negligence on the part of the plaintiff (see Velazquez v Denton Limo, Inc., 7 AD3d 787 [2d Dept 2004]; Trombetta v Cathone, 59 AD3d 526 [2d Dept 2009]). Plaintiff has established his prima facie entitlement to summary judgment by the proffer of a sworn statement asserting that "[He] was traveling on State Route 17... in stop and go traffic when traffic came to a stop. [He] gradually brought the 2003 Lincoln ... to a complete stop. While at a complete stop, suddenly and without warning [his] vehicle was forcefully rear-ended [by the Page 3 of 4 [* 3] 3 of 4 FILED: ORANGE COUNTY CLERK 10/01/2020 01:49 PM NYSCEF DOC. NO. 18 INDEX NO. EF009326-2019 RECEIVED NYSCEF: 10/01/2020 defendant]" (Ex.5). Such a showing requires defendant to come forward with a non-negligent explanation for the accident (see Velazquez, supra, citing Shamah v. Richmond County Ambulance Serv., 279 AD2d 564 [2d Dept 2001]). Additionally, the Vehicle and Traffic Law requires a driver to maintain a safe distance between his vehicle and the vehicle in front of him (see VTL § 1129[a]). In opposition, defendant does not offer a sworn affidavit; but rather submits only the affirmation of her attorney, in which defendant argues that plaintiffs motion is premature in that neither party has been deposed. Defendant fails, however, to raise a triable issue of fact in that she does not offer a non-negligent explanation for the occurrence of the collision. On the basis of the foregoing, plaintiffs motion must be granted. Accordingly, it is hereby ORDERED that plaintiffs' motion for partial summary judgment on the issue ofliability is granted, and it is further ORDERED that all parties shall appear for a virtual settlement conference on December 3, 2020 at 11: 15a.m .. A link shall be forwarded by the Part Clerk. The foregoing constitutes the Decision and Order of the Court Dated: September 30, 2020 Goshen, New York TO: ENTER: Counsel of record via NYSCEF Page 4 of 4 [* 4] 4 of 4

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