Desruisseauz v Ancona

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Desruisseauz v Ancona 2021 NY Slip Op 33153(U) December 10, 2021 Supreme Court, Queens County Docket Number: Index No. 716963/20 Judge: Carmen R. Velasquez 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 08:34 AM NYSCEF DOC. NO. 81 INDEX NO. 716963/2020 RECEIVED NYSCEF: 12/13/2021 SHORT FORM ORDER NEW SUPREME COURT COURT -- QUEENS QUEENS COUNTY COUNTY YORK SUPREME NEW YORK Present: CARMEN R. VELASQUEZ R. VELASOUEZ HONORABLE CARMEN Present: HONORABLE Justice Justice -----------------------------------x, -----------------------------------x, GARRY DESRUISSEAUZ, Plaintiff, Plaintiff, PART].]_ IAS lAS PART ~ Index No. No. _716963/20 Motion Motion Date: August 16, 16, 2021 2021 Date: -against-againstM# 1, 1, 2 3 &_ 3 2 & JOSEPH ANCONA, ET AL., AL., FILED 12/13/2021 Defendants. •Defendants. ------------------------------------x ------------------------------------x COUNTY CLERK QUEENS COUNTY motion numbered EF 19-76 read on this motionThe following papers numbered by the plaintiff for summary judgment on the the issue of liability liability plaintiff for defendants Joseph Ancona, Ancona, Delea Leasing Corp. and Steven against defendants dismissing the affirmative defenses of culpable the affirmative Duvert and dismissing comparative negligence (Sequence No\ 1); separate No1 l); negligence (Sequence conduct and comparative motion by defendant defendant _Steven Steven Duvert for for summary judgment dismissing judgipent dismissing the complaint and all cross claims insofar as as asserted asserted against him on liability liability grounds (Sequence (Sequence No.2); separate motion motion by No. 2); and separate defendant Cacheline for summary judgment dismissing dismissing the Cacheline Maitre for asserted against her on as asserted cross claims insofar as complaint and all Cross liability grounds (Sequence (Se~uence No.3) No. 3).. Papers Numbered Numbered Notice of Motion~ Motion - Affidavits Exhibits . . . . . . . . . .. . EF Affidavits -- E~hibits EF Affirmations Opposition . Affirmations in Opposition....................... EF EF EF EF Replying Affirmations. . . . . . . . . . . . . . . . . . . . . . . . . . . .. Replying Affirmations Notice of Motion Motion -- Affidavits Affidavits -- Exhibits Exhibits . . . . . . . . . .. EF Notice of Motion Motion -- Affidavits Affidavits -- Exhibits Exhibits . . . . . . . . . .. EF 19-27 28-32 58-61 63-66 68-71 68-71 73-76 73-7 6 33-41 42-50 Upon the foregoing foregoing papers it it is is ordered that these three motions for for summary judgment are jointly decided as as follows: follows: jointly decided Plaintiff Plaintiff a passenger a passenger in allegedly allegedly a vehicle a vehicle sustained serious sustained that was involved 1 of 4 injuries while he was in a multi-vehicle a multi-vehicle [*FILED: 2] QUEENS COUNTY CLERK 12/13/2021 08:34 AM NYSCEF DOC. NO. 81 INDEX NO. 716963/2020 RECEIVED NYSCEF: 12/13/2021 Boule_v ard near the accident on January Brookville Boulevard January 2, 2019 on Brookville intersection North Conduit Avenue in Queens County. intersection with North defendant Plaintiff was a operated by defendant v~hicle operated passenger in the v~hicle a passenger which he Cacheline Plaintiff vehicle in which Plaintiff alleges that the vehicle Cacheline Maitre. operated by vehi c le operated was aa passenger passenger was struck in the rear by the vehicle Duvert. Plaintiff further asserts that prior to ert. defendant Steven Duv this impact, the Duvert vehicle was struck struck in the rear by the this impact, vehicle owned owned by defendant defendant Delea Leasing Corp. Corp. and operated operated by commenced the instant action Plaintiff commenced Ancona .. Plaintiff defendant Joseph Ancona. defendants to recover damages for for negligence. Plaintiff and the - defendants Duvert and Maitre now move; separately, for for summary summary judgme~t. movei separately, a It is well established collision with a rear-end collision a rear-end established that a of stopped or stopping a prima facie case of vehicle creates a stopping vehicle negligence moving vehicle and negligence with respect to the operator of the moving moving vehicle to come imposes aa duty on the operator of the moving adequate; non-negligent explanation for the non-negligent explanation forward with an adequate, accident. (see (see Finney 127 AD3d 1134, 1134, 1134 [2d [2d Dept Morton, 127 v Morton, Finney v accident. 2015]; 57 AD3d724, 724 [2d [2d Dept AD3d 724, 724 Inc., 57 Fleetwood Ride, Inc., v Fleetwood 2015]; Foti v 2007]; Emil 2008]; Grimaldi, 40AD32d [2dDept Dept 2007]; 786, 787 [2d 40 AD32d 786, v Grimaldi, Ahmad v 2008]; Ahmad ~ransp., Inc., [2d Norsic & 368, 368 [2d AD3d 368, 30 AD3d Inc., 30 L.P. T_ransp., v L.P. Inc. v Son, Inc. & Son, Dept 2006].) If the oper~tor vehicle cannot come moving vehicle oper~tor of the moving 2006] .) forward with evidente ~nferen~e of negligence, the eviden~e to rebut the ~nferente operator of the stationary summary entitled to summary is entitled stationary vehicle is [2d Dept judgment. (see (see Dileo 586, 586 12d v Greensteini 281 AD2d 586, Dileo v 2001]; Lopez v 564, 564 564 [2d [2d Dept 1999].) 1999].) Minot, 258 AD2d 564, v Minot, 2001]; Further, is well settled that theright. of an innocent the- right Further, it is passenger of,whether passenger to an award of summary judgment on the issue of,whether he or she was at fault in the happening accident is is not happening of an accident restricted negligence as comparative negligence issu_e s of comparative potential issues restricted by potential between (Brabham v York, 105 105 v City of New York, drivers. (Brabham defendant drivers. between the defendant 784, AD3d 881, 881, 883 [2d [2d Dept 2013J; Anzel v Pistorino, AD3d 784, 105 Pistorino, v 2013]; 786 [2d [2d Dept 2013]; Medina v 850, 850 [2d [2d Dept AD3d 850, 92 AD3d v Rodriguez, 92 2012] .) 2012].) a prima facie made~ plaintiff made hand, the plaintiff matter at hand, In the matter showing of entitlement entitlement to as aa matter law. In his matter _ of law. to judgment as showin~ affidavit, plaintiff at the time of the accident, the plaintiff avers that at affidavit, vehicle in which he was as passenger complete stop for for passenger was at complete approximately 25-30 seconds due to traffic congestion. Plaintiff to approximately further avers that the accident occurred vehicle occurred when the vehicle operated by defendant Ancona the r~ar of the defendant defendant rear struck defendant operated Duvert's vehicle, and the Duvert vehicle then struck struck the vehicle of defendant Plaintiff also states itates that he did not defendant Maitre. interfere with the oper~tion operation or movement whi~h vehicle in which fhe vehicle movement of the he was aa passenger. 2 2 of 4 [*FILED: 3] QUEENS COUNTY CLERK 12/13/2021 08:34 AM INDEX NO. 716963/2020 NYSCEF DOC. NO. 81 RECEIVED NYSCEF: 12/13/2021 reasons, defendant Maitre has made aa prima prima facie For similar reasons, entitlement to judgment as as aa matter matter of law. law. In In her showing of entitlement affidavit, said defendant defendant states her vehicle was stopped for for 25affidavit, 30 seconds at at the subject intersection intersection when it was struck in the 30 rear by the Duvert vehicle. She also avers that at the time of incident, her foot foot was pressing pressing down on the brake pedal. the incident, In addition, she avers that she was not involved in the init~al addition, between the Anacona Anacona vehicle and the Duvert vehicle. impact between No party, party, in opposition, has submitted submitted sufficient sufficient evidence raising aa triable issue of fact fact as as to to any negligence negligence by either defendant Maitre or the plaintiff. Defendant Ancona Ancona submits an affidavit in opposition opposition in which Defendant traveled on Brookville he avers that as he traveled Brookville Boulevard Boulevard and approached the subject intersection, aa white pick up truck, truck, approached without warning, warning, entered the intersection intersection without suddenly and without directly in front front of his vehicle. , He stopping at aa stop sign directly further avers that he applied his brakes to avoid an accident with the truck. truck. Defendant Ancona also states that although although he truck, he noticed avoided an accident with the white truck, noticed that the vehicles in front of him had stopped abruptly. He applied pressure on the brake but was unable to to stop before before making aa defendant Duvert. Duvert. Defendant light impact with the vehicle of defendant Ancona also avers that he he was faced with aa sudden and unexpected unexpected circumstance when the truck entered the intersection intersection without circumstance stopping. He also explains that as as aa result, result, his view was stopping. obstructed. > > finds the assertion assertion of defendant defendant Ancona The court finds insufficient to raise aa triable issue of fact. fact. Indeed, Indeed, defendant insufficient ~he Ancona states that he was able to avoid an accident with the entered the intersection. He also states that the truck that entered However, the vehicles in front of his vehicle stopped abruptly. However, assertion of an abrupt or sudden stop is is insufficient insufficient to to assertion non-negligent explanation explanation for for the accident. constitute aa non-negligent (see Cajas-Romero 106 AD3d 850, 850, 852 852 [2d [2d Dept 2013); 2013]; Franco Cajas-Romero vv Ward, 106 Franco vv Breceus, 70 AD3d AD3d 767, 767, 768 768 [2d [2d Dept 2010); 2010]; Arias Breceus, 70 Arias vv Rosario, Rosario, 52 551, 553 [2d [2d Dept 2008); 2008]; Campbell Campbell vv City City of of Yonkers, Yonkers, 37 37 AD3d AD3d 551, 750, 751 751 [2d [2d Dept 2007).) 2007].) 750, To the extent defendants defendants Ancona and Delea Leasing Leasing Corp. Corp. To motions should be denied as as premature premature since assert that the motions discovery is is not complete, complete, such contention contention is is without without merit. · The discovery speculation that evidence may be uncovered uncovered during hope and speculation discovery is is an insufficient insufficient basis to to deny the motion motion for discovery for summary judgment. (Cajas-Romero 106 AD3d 850, 850, 852 852 [2d [2d Dept judgment. (Cajas-Romero vv Ward, 106 3 3 of 4 [*FILED: 4] QUEENS COUNTY CLERK 12/13/2021 08:34 AM NYSCEF DOC. NO. 81 INDEX NO. 716963/2020 RECEIVED NYSCEF: 12/13/2021 734 [2d 733, 734 2013]; Co. V [2d Dept 74 AD3d 733, Carpentry, 74 v Carpentry, Ins. Co. 2013]; Essex Ins. 2010]; Conte v 51 AD3d 620, 620, 621 621 [2d [2d Dept Assocs., LLC, 51 v Frelen Assocs.,LLC, 2010); 2008]. ) 2008].) Defendant In his Defendant Duvert also seeks summary judgment. annexed affidavit, defendant defendant Duvert avers that at the time of the for subject accident, his vehicle was at aa complete stop for approximately eight seconds behind the vehicle of defendant defendant approximately Defendant Duvert Maitre, Defendant plaintiff was aa passenger. Maitre, in which plaintiff stopped, it it was struck in the states that while his vehicle was stopped, rear by the vehicle He further avers that vehicle of defendant Ancona. this caused his vehicle to be pushed into the rear of the this impact caused as the Duvert vehicle, which was Inasmuch as Maitre vehicle. stopped, was propelled defendant Duvert propelled into the Maitre vehicle, defendant stopped, made a showing of his entitlement entitlement to summary judgment. a showing 2020]; [2d Dept 2020]; 772, 772-773 [2d Bhuiyan, 181 AD3d 772, v Bhuiyan, (Bardizbanian v .) Morales 1000, 1002 [2d [2d Dept 2016) 2016].) No party Amar, 145 AD3d 1000, v Amar, Moral~s v negligence by has raised aa triable issue of fact fact as as to any negligence defendant Duvert. for plaintiff for Accordingly, the branch motion by the plaintiff branch this motion liability is is granted granted to the summary judgment on the issue of liability assessment of o£ damages against the defendants defendants extent that an assessment Joseph Ancona Corp. shall be held at the time Ancona and Delea Leasing Corp. No. 1) . (Seq. the case is called called for for trial. (Seq. No.1). trial. The branch summary judgment plaintiff for summary motion by the plaintiff branch this motion liability as as against defendant defendant Steven Duvert is is on the issue of liability denied. (Seq. No.1). No. 1). (Seq. denied. The branch summary judgment for summary plaintiff for motion by the plaintiff branch this motion first dismissing affirmative defenses is granted, and the first certain affirmative dismissing certain affirmative defenses in the Answer defendants Joseph Answer of defendants and tenth affirmative Ancona and Delea Leasing Corp., Corp., alleging culpable conduct and No. (Seq. comparative negligence, respectively, are dismissed. (Seq. No. comparative 1) . defendant Steven Duvert for for summary judgment motion by defendant The motion is granted, granted, and the complaint complaint and all cross claims as against is Steven Duvert are dismissed. (Seq. No.2). No. 2). (Seq. defendant Steven summary The motion Cacheline Maitre for summary defendant Cacheline motion by defendant judgment is is granted, and the complaint and all cross claims as as No. 3) (Seq. defendant Cacheline Cacheline Maitre are dismis~ (Seq. No.3) against defendant Dated: 10, 2021 December 10, Dated: December CARMEN 4 FILED 12/13/2021 COUNTY CLERK QUEENS COUNTY 4 of 4

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