Mealing v Clark

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Mealing v Clark 2021 NY Slip Op 33091(U) December 13, 2021 Supreme Court, Queens County Docket Number: Index No. 703062/2020 Judge: Donna-Marie E. Golia 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: 1] QUEENS COUNTY CLERK 12/13/2021 02:54 PM INDEX NO. 703062/2020 NYSCEF DOC. NO. 32 RECEIVED NYSCEF: 12/13/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF QUEENS PRESENT: Donna-Marie E. Golia, JSC Part 21 CHARLES R. MEALING, Plaintiff, FILED V Index No. 703062/2020 Motion Date: 8/16/2021 Motion Seq. No.: 002 12/13/2021 GARY D. CLARK, COUNTY CLERK QUEENS COUNTY DECISION & ORDER Defendant. The following electronically filed papers numbered EF15 to EF22 and EF27 to EF31 read on this motion by plaintiff for summary judgment and to strike defendant's first affirmative defense regarding plaintiffs alleged culpable conduct and/or comparative negligence: Notice of Motion, Affirmation , Affidavit, Exhibits, Affidavit of Service ....... . . Affirmation in Opposition, Exhibits .. . ... ... ...... ...... .... ............. .. .. ... ... ... . Affirmation in Reply , Exhibits, Affidavit of Service ..... ... .. . .......... ... .... .... . Papers Numbered EF15- EF22 EF27-EF28 EF29- EF31 Plaintiff Charles R. Mealing ("plaintiff') moves, pursuant to CPLR 3212, for summary judgment on liability and to strike defendant's first affirmative defense regarding his alleged culpable conduct and/or comparative negligence. Defendant Gary D. Clark ("defendant") opposes the motion . Upon the papers submitted, plaintiffs motion is denied, as discussed more fully below. Plaintiff commenced this action for personal injuries he allegedly sustained as a result of a motor vehicle accident that occurred on January 8, 2020 on 99 th Avenue at or near its intersection with 217 th Street in Queens , New York. Plaintiff alleges that defendant operated his vehicle on the wrong side of the roadway and struck his vehicle head-on when he was stopped eastbound at a stop sign. Specifically, plaintiff notes that while 99 th Avenue runs in an eastbound direction, defendant operated his vehicle in a westbound direction when he turned left on 99 th Avenue from Hempstead Turnpike. In his motion, plaintiff argues that defendant solely caused the alleged accident by striking his vehicle head-on when he operated his vehicle on the prohibited side of the roadway in violation of various provisions of the Vehicle and Traffic Law, including, inter alia , §§ 1142, 1101 and 1146. Plaintiff contends that since defendant's vehicle was traveling in the wrong direction on a one-way road when he was stopped at a stop sign, 1 1 of 4 [*FILED: 2] QUEENS COUNTY CLERK 12/13/2021 02:54 PM NYSCEF DOC. NO. 32 INDEX NO. 703062/2020 RECEIVED NYSCEF: 12/13/2021 he had no time to sound his horn or turn his wheel to avoid defendant's vehicle. In that regard , plaintiff avers that he is not responsible for the happening of the alleged accident. In opposition, defendant argues that the motion should be denied because plaintiff failed to annex a statement of material facts to his motion papers pursuant to 22 NYC RR 202 .8-g[a]. Defendant also argues that there are material issues of fact as to the happening of the alleged accident and plaintiffs comparative fault, including , inter alia, issues as to whether plaintiff was traveling at an excessive rate of speed or was otherwise negligent in failing to take sufficient action to avoid contact with his vehicle. Defendant further asserts that there are questions of fact as to whether plaintiff acted reasonably under the circumstances and failed to see that which he should have seen . In reply, plaintiff asserts that defendant admitted to the police that his vehicle struck plaintiffs vehicle. Plaintiff also argues that contrary to defendant's position, the police accident report submitted in support of his motion is admissible. Summary judgment pursuant to CPLR 3212 provides a mechanism for the prompt disposition, prior to trial, of civil actions which can be decided as a matter of law (see generally, Brill v City of New York, 2 NY3d 648 , 650 [2004]). On a motion for summary judgment, the moving party must make out a prima facie case by submitting evidence in admissible form wh ich establishes its entitlement to judgment as a matter of law (see, Marshall v Arias , 12 AD3d 423, 424 [2d Dept 2004]) . Upon such a showing, the burden shifts to the non-moving party to present admissible evidence which demonstrates the necessity of a trial as to an issue of fact (see, Zolin v Roslyn Synagogue, 154 AD2d 369, 369 [2d Dept 1989]). The non-moving party must be afforded every favorable inference that can be drawn from the evidentiary facts established (see, McArdle v M & M Farms, 90 AD2d 538 [2d Dept 1982]). However, conclusory, unsupported allegations or general denials are insufficient to defeat a motion for summary judgment (see, William lselin & Co., Inc. v Landau, 71 NY2d 420 , 427 [1988]). Procedurally, plaintiffs fai lure to annex a statement of material facts to his motion papers pursuant to 22 NYCRR 202.8-g[a] warrants denial of the motion. Pursuant to 22 NYCRR 202.8-g[aJ, "[u)pon any motion for summary judgment ... there shall be annexed to the notice of motion a separate, short and concise statement, in numbered paragraphs, of the material facts as to which the moving party contends there is no genuine issue to be tried. " Indeed, it has been held that th is rule is not "discretionary, " but rather, "a summary judgment movant who fails to set forth a material statement of facts as required by the rule has failed to properly put those facts before the court in the first instance" (see , Amos Fin. LLC v Crapanzano, 73 Misc 3d 448 [NY Sup Ct Rockland County 2021] ; Payano v Robinson , 2021 WL 5044285, at *1 [NY Sup Ct Bronx County Sep 13, 2021]; Guerrero v Carnegie Valet Cleaning Corp. , 2021 WL 5044283, at *1 [NY Sup Ct Bronx County Sep 21, 2021 ]). Here, as plaintiff has fa iled to comply with the directives of 22 NYCRR 202.8-g[a] , his motion is hereby denied (see, id.). Assuming arguendo that plaintiff had properly complied with the procedures of 22 NYCRR 202.8-g[a] , plaintiffs motion nonetheless warrants den ial on substantive grounds 2 2 of 4 [*FILED: 3] QUEENS COUNTY CLERK 12/13/2021 02:54 PM NYSCEF DOC. NO. 32 INDEX NO. 703062/2020 RECEIVED NYSCEF: 12/13/2021 as there are triable issues of fact sufficient to preclude summary judgment on the issue of liability. Specifically, while plaintiff establishes his prima facie showing by submitting an affidavit in which he attests that he was "stopped at a stop sign in an eastbound direction on 99 th Avenue" when "[s]uddenly and without any warning, [his] motor vehicle was struck head-on" by the vehicle owned and operated by defendant, "who made a left turn onto 99 th Avenue and was heading westbound the wrong and opposite way on 99 th Avenue," defendant submits his own affidavit refuting plaintiff's version of the events leading up to the alleged accident (see, Pl. Aff. p. 2; Def. Exh. A; Kwang Jin Kim v Ramos, 181 AD3d 914 , 914 [2d Dept 2020]; Gray v Air Excel Serv. Corp ., 171 AD3d 1026, 1028 [2d Dept 2019] ; Galano v ILC Holdings, Inc., 164 AD3d 1315, 1317 [2d Dept 2018] ; Giraldo v Cty. of Westchester, 147 AD3d 813 , 814 [2d Dept 2017] ; Snemyr v Morales-Aparicio, 47 AD3d 702, 703 [2d Dept 2008] ; Eichenwald v Chaudhry, 17 AD3d 403, 404 [2d Dept 2005] ; see also, Pyptiuk v Kramer, 295 AD2d 768, 770 [3d Dept 2002]). 1 Indeed, contrary to plaintiff's assertion that he "had the right of way and was stopped in the proper eastbound direction of the roadway" when defendant "made a left turn onto the wrong and opposite side of this one-way eastbound roadway," it is defendant's position that there are questions of fact as to whether plaintiff's vehicle was stopped at the time of the alleged accident and whether plaintiff caused or contributed to the happening of the alleged accident (see, id.). For example , according to defendant, he was "traveling W/B on Hempstead Avenue" and when he made a left turn, he "realized that 99th Ave was a one-way street and immediately stopped [his] vehicle which was facing in the opposite direction" (see, Def. Exh . A) . Defendant states that "[w]hen [he] brought [his] vehicle to a stop[,] there were no vehicles on 99 th Ave approaching Hempstead Ave" and that he "looked in [his] rearview mirror to determine whether [he] could safely reverse onto E/B Hempstead Ave [and] then ... looked forward again at 99 th Ave while remaining in the stopped position" (see , id.) . Defendant further attests that when he "looked forward again after looking in [his] rearview mirror," he first saw plaintiff's vehicle approximately "5 feet in front of [his] vehicle" and at that time, plaintiff's vehicle "was behind the stop line and was moving at approx. 20mph" (see , id .). It is further defendant's position that when he first saw plaintiff's vehicle, his vehicle "had been stopped for approx. 3 seconds" and that the front bumper of [plaintiff's vehicle] came into contact with the front bumper of [his] vehicle" at the crosswalk of 99 th Avenue approaching Hempstead Avenue (see, id .). In that regard , contrary to plaintiff's argument that he was stopped at a stop sign on 99th Avenue when defendant's vehicle struck his vehicle head-on, defendant's assertion that plaintiff's vehicle "did not stop at the stop line" but "was moving " "at the moment of impact" whereas his vehicle had been stopped "at the moment of impact" sufficiently raises a question of fact for a jury to resolve (see, Pl. Aff. p. 2; Def. Exh . A; see, ~ . Gray, 171 AD3d at 1028, supra; Pyptiuk, 295 AD2d at 770 , supra) . Accordingly, as defendant has raised triable issues of fact as to the happening of the alleged accident and whether plaintiff caused or contributed to the same , the branch of plaintiff's motion seeking summary judgment on the issue of liability is denied. 1 To the extent that plaintiff relies on Harrinarain v Sisters of St. Joseph, 173 AD3d 983 [2d Dept 2019] for the proposition that the uncertified police accident report submitted in support of his motion is admissible since it conta ins defendant' s admission , such argument is unavailing as th is case has been abrogated by Yassin v Blackman , 188 AD3d 62 , 67 [2d Dept 2020]. 3 3 of 4 [*FILED: 4] QUEENS COUNTY CLERK 12/13/2021 02:54 PM NYSCEF DOC. NO. 32 INDEX NO. 703062/2020 RECEIVED NYSCEF: 12/13/2021 Furthermore, as there are triable issues of fact as to whether plaintiff caused or contributed to the alleged accident (see, supra) , plaintiff's application to strike defendant's fi rst affirmative defense regarding his alleged cu lpable conduct is den ied (see, Rodriguez v City of New York, 31 NY3d 312 , 324 [2018]). In sum , plaintiff's motion for summary judgment on liability and to strike defendant's first affirmative defense regarding his alleged culpab le conduct and/or comparative negligence is denied. This constitutes the Decision and Order of the Court. Dated: December 13, 2021 Donna~ FILED 12/13/2021 COUNTY CLERK QUEENS COUNTY 4 4 of 4 Golia, JSC

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