Coyle v Martocello

Annotate this Case

Download PDF

Coyle v Martocello 2021 NY Slip Op 33422(U) January 6, 2021 Supreme Court, Suffolk County Docket Number: Index No. 612633/2019 Judge: Linda Kevins 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. INDEX NO. 612633/2019 FILED: SUFFOLK COUNTY CLERK 01/06/2021 02:18 PM NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 01/06/2021 I IOKT FOR.vi ORDER DEX CAL o. 612633 /2019 o. SUPREME COURT - STATE OF NEW YORK I.A.S. PART 29 - SUFFOLK COUNTY PR ES ENT: MOTION DA TE 6/12/2020 ADJ. DATE 9/29/2020 Mot. Seq. # 001 - MotD Mot. Seq. # 002 - XMD HON. LINDA KEVINS Justice of the Supreme Court ---------------------------------------------------------------X GREGO RY J. COYLE , Pl ain tiff, - against AMANDA N . MARTOCELLO , SUNSET AIRPORT & LIMOUSINE SERVICE, INC. and LOUIS HOPPER Defendan ts . --------------------------------------------------------------- X pon the following papers e-filed and read on these motions for summary judgment : Notice of Mot.i on and support ing papers by plaintiff, dated February 3 2020 ; otice of Cross Motion and supporting papers by defendants Sunset Airport & Limousine Service, Inc. and Lo uis Hopper, dated May 6. 2020 ; Answering Affidavits and supporting papers to # 002 , by defendan t Amanda Martocello dated August 5. 2020 ; Replying Affidavits and support ing papers to # 002 bv defendan ts Stu1set and Hopper. dated August 7. 2020 ; Other _; (a-11a after hearing oollil:sel iR SU!>f) Ort aaa OflflOsea to the motioR) it is. ORDERED that plaintiffs motion (# 001) fo r an order granting him partial summary judgm nt on the issue of liab ility against all defendants , and the cro ss motion (# 002) by defendan ts Sunset Airport & Limousine Service, Inc . and Louis Hopper for summary judgment dismissing the comp laint as against them are consolidated for the purposes of this determination; and it is further ORDERED that plaintiffs moti on for an order granting him partial summary judgment on the issue of liability, pursuant to CPLR § 32 12 (e) against all named defendants is granted to the extent that partial swnmary judgment in hi s favo r is granted against defendant Amanda Martocello, and is otherwise denied; and it is further [* 1] 1 of 4 FILED: SUFFOLK COUNTY CLERK 01/06/2021 02:18 PM NYSCEF DOC. NO. 29 INDEX NO. 612633/2019 RECEIVED NYSCEF: 01/06/2021 CO YLE V. MARTOCELLO INDE X NO. 612633/2019 MOTION SEQ. ff 00 1 & tt002 Page 2 of 4 ORDERED that the cros motion by defendants Sunset Airport & Limousine Service , Inc. and Louis Hopper for summary judgment dismissing the complaint as against them is denied; and it is further ORDERED that counsel for the parties, and if a party has no couns el, then the party, are directed to appear before the Court in lAS Part 29, located at the Alan D . Oshrin Courthouse, One Court Street, Riverhead, ew York 11901 , on March 9, 2021 at 9:30 a.m. , for a Conference, or if the com1 is still operating remotely due to the COVID -19 health crisis, such appearance shall be held remotely. Counsel and any parties who are not represented by counsel shall, with a copy to all parties, contact the court by email at Sutl<evirn.(a nycourts.gm at least one week prior to the date of the scheduled conference to obta in the date, time and manner of such conference; and it is further ORDERED that if this Order has not already been entered, plaintiff is directed to promptly serve a certified copy of this Order, pursuant to CPLR §§80 19(c) and 2105 , upon the Suffolk County Clerk who is directed to hereby enter such order; and it is further ORDERED that upon Entry of th is Order, pl aintiff is directed to promptly serve a copy of this Order with otice of Entry upon all parties and to promptly file the affidavits of service with the Cl rk of the Court. This is an action to recov r damages for personal injuries alleged ly sustained by plaintiff as a result of a motor vehicle accident that occurred on May 10, 2019 on Lakeland Avenue at or near its intersection with Elaine Drive, in the Town of Islip. The accident allegedly happened when a vehicle that plaintiff was riding in as a passenger, owned by defendant Sunset Airport & Limousine Service, Inc., and operated by defendant Louis Hopper was struck in the rear by a vehicle driven by defendant Amanda Martocello. Pl aintiff now mov s for partial summary judgment on the issue of liability against al l of the d fond an t . In support of the motion, plaintiff submits copies of the pleadings, a certified police acc ident report and his own affidavit. In his affidavit, plaintiff states that on May 10, 2019, at 2:04 p.m , he was a passenger in a taxi that was struck by another vehicle in the rear The certified police accident report contains an admission by defendant Amanda Martocello who told the officer at the scene that she was unable to stop her vehicle and it struck the rear end of the vehicle that wa in front of her as it was stopping. It is well settled that a party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law , tendering sufficient evidence to eliminate any material issue of fact (see Alvarez v Prosp ect Hosp. , 68 NY2d 320, 508 YS2d 923 [ 1986]; Friends of Animals vAssociated Fur \1.frs. , 46 Y2d 1065, 1067, 416 YS2d 790 [1979)) . The failure of the moving party to make a prima fac ie showing requires the denial of the motion [* 2] 2 of 4 FILED: SUFFOLK COUNTY CLERK 01/06/2021 02:18 PM NYSCEF DOC. NO. 29 INDEX NO. 612633/2019 RECEIVED NYSCEF: 01/06/2021 COYLE V. MARTOCELLO INDEX NO. 612633/20 19 MOTION SEQ. tt 001 & #002 Pa ge 3 of 4 regardless of the sufficiency of the opposing papers (see Winegrad v N ew York Un iv. Med. Ctr. , 64 NY2d 851, 487 YS2d 316 [1985]). Once the movant establishes such burden, the burden shifts to the party opposing the motion which must produce evidentiary proof in admissib le form sufficient to require a trial of the material issues of fact (Zuckerman. v City of New York , 49 NY2d 557, 427 YS2d 595 [1980). The court's function i to determine whether issues of fact exist, not to resolve issues of fact or to detem1ine matters of er dibility; therefore, in determining the motion for summary judgment, the facts alleged by the opposing party and all inferences that may be drawn ar to be accepted as true (see Roth v Barreto , 289 AD2d 557, 735 YS2d 197 [2 00 l ]; 0 'Neill v Fishkill, 134 AD2d 487, 521 NYS2d 272 [ 1987]). The Vehicle and Traffic Law establishes standards of care for motorists, and an unexcused violation of such standards of care constitutes negligence per se (see Hodnett v Westchester County Dept. ofPub. Works & Transp. , 181 AD3d 655, 122 NYS3d 111 [2d Dept 2020]; Barbieri v Vokoun, 72 AD3d 853, 900 NYS2d 315 [2d Dept 2010]; Coogan v Torrisi, 47 AD3d 669, 849 NYS2d 62 1 (2d Dept 2008]; Dalal v City of New York, 262 AD2d 596, 692 YS2d 468 [2d Dept 1999]). Vehicle and Traffic Law Section 1129 (a) provides : "The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, ha ving due regard fo r the speed of such vehicles and the traffic upon and the condition of the highway.' When the driver of a vehicle approaches another vehicle from the rear, he or she is bound to maintain a reasonably safe rate of speed and control over his or her vehicle, and to exercise reasonable care to avoid colliding with the other vehicle (Sook/all v Morisseav-Lafague, 185 AD3d 1079, 128 NYS3d 266 (2d Dept 2020] ; Catanzaro vEdery, 172 AD3d 995 , 101 NYS3d 170 [2d Dept 2019] ; Tumminello v City of New York , 148 AD3d 1084, 49 YS3d 739 [2d Dept 2017] ; Brothers v Bartling, 130 AD3d 554, 13 NS3d 202 [2d Dept 2015] ; Gutierrez v Trillium USA, LLC, 111 AD3d 669, 974 S2d 563 [2d Dept 2013 ]). A rear-end collision with a stopped or stopping (emphas is added) v hicle creates a prima fac 1e case of negligence with respect to the operator of the rear vehic le and imposes a duty on that operator tor but the inference of neglig nee by providing a nonnegligent explanation for the collision (Tutrrmi v County of Suffolk, l O NY3d 906, 861 NYS2d 610 [2008]; Edgerton v City of New York, 160 AD3d 809, 74 YS3d 617 [2d Dept 2018]; Nowak v Benites, 152 AD3d 613 , 60 NYS3d 48 (2d Dept 2017]; Le Grand v Silberstein , 123 AD3d 773,999 NYS2d 96 [2d Dept 2014]). Here, pla intiff established his entitlement to summary judgment on the issue of Martocello's liability, by demonstrating that plaintiff was a passenger in a vehicle that was rear ended by a vehicle driven by defendant Martocello, and that he did not engage in any culpable conduct which contributed to the happening of the accident (Lopez v Suggs , 186 AD3d 589, 126 YS2d 676 l2d Dept 2020]; Romain v City of NY, 177 AD3d 590, 112 NYS3cl 162 [2 I Dept 2019]). However, plaint iff has failed to submit any evidence stab lishing liability on the part of defendants Suns t Airport & Limousine ervice, Inc. and Louis Ilopper. [* 3] 3 of 4 INDEX NO. 612633/2019 FILED: SUFFOLK COUNTY CLERK 01/06/2021 02:18 PM NYSCEF DOC. NO. 29 RECEIVED NYSCEF: 01/06/2021 COYLE V. M ARTOCEL LO INDEX NO . 612633/2019 MOTION SEQ.# 001 & #002 Page 4 of 4 Having established his prima facie entitlement to summary judgment on the issue of liability against defendant Mariocello, the burden shifts to Martocello to proffer evidence in admissib le form sufficient to raise a triable issue of fact (CPLR 3212 [b]; Zuckerman v City of New York , 49 Y2d 557, 427 NYS2d 595). o opposition to plaintiffs motion has been submitted by Martocello. Accordingly, plaintiffs motion for partial summary j udgment on the issue of liability is granted with respect to defendant Amanda Martocello, and the motion is denied with respect to defendants Sunset Airport & Limousine Service, Inc . and Louis Hopper. Defendants Sunset Airport & Limousine Service, Inc. and Louis Hopper cross-move for summary judgment dismissing the complaint against them arguing that Martocello was the sole proximate cause of the accident. However, the only submiss ion in support of the motion is an affi m1ation of counsel. It is well settled that an affirmation of an attorney who lacks personal knowledge of the fa cts has no probative value (see Cullin v Spiess , 122 AD3d 792, 997 NYS 2d 460 [2 d Dept 20 14] ; see also M. Cooper Motor Leasing, Ltd. v Data Discount Center, Inc., 125 AD 2d 454, 509 NY S2d 385 [2d Dept 1986]). No affidavit by Louis Hopper has been submitted, and the police accident report contains hearsay regarding Hopper ' s explanation of the accident. Having failed to establish that Hopper was not a cause of the accident, as there can be more than one proximate cause ofan accident (Carias v Grove , 186 AD3d 1484, 131 NYS3d 99 [2d Dept 2020-1; Richardson v Cablevision ~vs. Corp., 173 AD3 d 1083 , 104 NYS3 d 655 [2d Dept 2019]), defendants failed to ~stablish their prima fac1e entitlement to sum mary judgment dismissing the complaint as against them. Accordingly, the cross motion by defendants Sunset Airport & Limous ine Servi ce, Inc. and Louis Hopper for summary judgment dismissing the comp laint as ag ainst them is denied. Anything not specifically granted herein is hereby denied. This constitutes the decision and Order of the Court. LI \JDA <EVL S, SC Dated 1/6/2 021 FINAL DISPOSITION [* 4] _X_ NON-FINAL DISPOSITION 4 of 4

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.