Hanchard v Spectrum N.Y. Metro, LLC

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Hanchard v Spectrum N.Y. Metro, LLC 2023 NY Slip Op 30153(U) January 12, 2023 Supreme Court, New York County Docket Number: Index No. 155484/2019 Judge: James G. Clynes 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. 155484/2019 FILED: NEW YORK COUNTY CLERK 01/17/2023 04:53 PM NYSCEF DOC. NO. 123 RECEIVED NYSCEF: 01/17/2023 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. JAMES G. CLYNES PART 22M Justice ---------------------------------------------------------------------------------X INDEX NO. I 55484/2019 MOTION DATE 04/29/2022 CHRISTINE HANCHARD, Plaintiff, MOTION SEQ. NO. 003 - V - SPECTRUM NEW YORK METRO, LLC F/K/A TIME WARNER CABLE NEW YORK CITY LLC., OMAR D. ALEXANDER, CHARTER COMMUNICATIONS, LLC DECISION+ ORDER ON MOTION Defendant. --------------------------------------------------------------- ------------------X The following e-filed documents, listed by NYSCEF document number (Motion 003) 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 89, 90, 91, 92, 93, 94, 95, 96, 97,.98, 99, JOO, IOI, 102 were read on this motion to/for JUDGMENT - SUMMARY Upon the foregoing documents and following oral argument Plaintiffs motion for an order granting summary judgment on liability in favor of Plaintiff and against Defendants and for an order finding Plaintiff to be free from comparative fault striking Defendants' second (culpable conduct by Plaintiff), third (culpable conduct by some unknown third person or persons), eighth (failure to use seatbelt by Plaintiff) and ninth (intervening and/or interceding acts of superseding negligence, liability, statutory liability, strict liability by other parties) affirmative defenses; and Defendants' cross-motion for summary judgment on liability in favor of Defendants and against Plaintiff and for dismissal.of the complaint against them is decided as follows: Plaintiff seeks recovery for injuries allegedly sustained as a result of a November 29, 2018, motor vehicle accident between Plaintiffs vehicle and the vehicle owned and operated by Defendants. Plaintiff's submission includes the examination before trial testimony (EBT) of Plaintiff, Defendant Driver, and the police officer who responded to the accident, Plaintiffs affidavit, dated 155484/2019 HANCHARD, CHRISTINE vs. SPECTRUM NEW YORK Motion No. 003 [* 1] 1 of 4 Page 1 of4 FILED: NEW YORK COUNTY CLERK 01/17/2023 04:53 PM NYSCEF DOC. NO. 123 INDEX NO. 155484/2019 RECEIVED NYSCEF: 01/17/2023 April 12, 2022, the affidavh of the Defend~t Driver dated September 14, 2020, the police accident report, photographs, and the pleadings. In her April 12, 2022 affidayit, Plaintiff avers that Defendants' .van backed up and rammed into the driver's side of her car while she was parking behind it and that she was wearing her seatbelt at the time of the accident. Plaintiffs affidavit also provides summaries of her examination before trial testimony on March 9, 2021, and April 6, 2021, her statements to the police officer who responded to the accident, and states that the police report annexed to her papers is accurate and contains the exact statement she gave to the officer when he asked her what happened. Plaintiff further explains that she signed a previous affidavit without reading it that was submitted in support of her first motion for summary judgment on the issue of liability only, but that once she read that affidavit and realized it contained some factual errors, she told her attorney and Plaintiffs previous affidavit and prior motion for summary judgment on liability were withdrawn. In her EBT testimony and her supporting affidavit Plaintiff avers, among other things that she was already in a parking spot, not perfectly but in the spot and trying to maneuver to get closer to the curb and straight when defendants' van began backing into her vehicle and that she moved up on the sidewalk to try to avoid contact with defendants' vehicle. Plaintiff contends that she has established prima facie negligence in her favor and against Defendants through the combination of her sworn testimony thatshe was a seat-belted operator of her vehicle in a parking spot when Defendants' vehicle reversed into Plaintiffs vehicle and also through Defendant driver's testimony that he did not see Plaintiffs vehicle until the collision had occurred and his admission as recorded in the police accident report that he was backing up and did not see Plaintiff att~mpting to pull into spot, subsequently crashing into Plaintiff. 155484/2019 HANCHARD, CHRISTINE vs. SPECTRUM NEW YORK Motion No. 003 [* 2] 2 of 4 Page 2 of 4 FILED: NEW YORK COUNTY CLERK 01/17/2023 04:53 PM NYSCEF DOC. NO. 123 INDEX NO. 155484/2019 RECEIVED NYSCEF: 01/17/2023 Defendants oppose Plaintiff's motion and cross-move for summary judgment in their favor and for dismissal of the complaint against them. Defendants' submission includes an affidavit from John A. Desch, Defendants' expert in accident reconstruction and traffic engineering, dated June 29, 2022, and Plaintiff's affidavit, dated July 7, 2020, and fully incorporated by reference the exhibits annexed to Plaintiff's motion papers. In his affidavit, Desche avers that he conducted an analysis of Plaintiff's vehicle using Virtual Crash Accident Reconstruction Software (Virtual CRASH) and found that given the position of her vehicle following the impact, as observed in the photographs, it would be physically impossible for the accident to occur as Plaintiff described it. Desche concluded that it is his opinion, to a reasonable degree of accident reconstruction and engineering certainty, that the actions of plaintiff were the immediate contributing factors that resulted in the subject collision. Defendant driver's EBT testimony states that he was in the process of parallel parking, was wearing a seat belt, he was driving in reverse at 1-2 miles per hour; despite continuously scanning his mirrors he had no warning before the accident, did not hear a horn; and that Plaintiff was pulling forward as he was backing into the parking spot when the collision occurred. Defendant contends that there are inconsistencies between Plaintiff's account of how the accident happened as set forth in her EBT testimony and her affidavits, Defendant driver's testimony, and Defendants' expert affidavit. Based on the submissions of both parties, there are material issues of fact as to how the accident occurred. Therefore, summary judgment must be denied on both motions so that these issues of fact and credibility may be resolved at trial. Accordingly, it is 155484/2019 HANCHARD, CHRISTINE vs. SPECTRUM NEW YORK Motion No. 003 [* 3] 3 of 4 Page 3 of 4 INDEX NO. 155484/2019 FILED: NEW YORK COUNTY CLERK 01/17/2023 04:53 PM NYSCEF DOC. NO. 123 RECEIVED NYSCEF: 01/17/2023 ORDERED that Plaintiff's motion for summary judgment on liability in favor of Plaintiff and against Defendants and for an order finding Plaintiff to be free from comparative fault striking Defendants' second (culpable conduct by Plaintiff), third (culpable conduct by some unknown third person or persons), eighth (failure to use seatbelt by Plaintiff), and ninth (intervening and/or interceding acts of superseding negligence, liability, statutory liability, strict liability by other parties) affirmative defenses is DENIED; and it is further ORDERED that Defendants' cross-motion for summary judgment on liability in favor of Defendants and against Plaintiff and for dismissal of the complaint against them is DENIED; and it is further ORDERED that any relief sought not expressly addressed herein has nonetheless been considered; and it is further ORDERED that within 30 days of entry, Plaintiff shall serve a copy of this Decision and Order upon Defendants with Notice of Entry. This constitutes the Decision and Order of the Court. 1/12/2023 DATE CHECK ONE: APPLICATION: CHECK IF APPROPRIATE: [* 4] JAMES G. CLYNES, J.S.C. ~ CASE DISPOSED . GRANTED 0 NON-FINAL DISPOSITION. DENIED GRANTED IN PART SETTLE ORDER SUBMIT ORDER INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT 155484/2019 HANCHARD, CHRISTINE vs. SPECTRUM4NEW of YORK 4 Motion No. 003 ·D • OTHER REFERENCE Page4of4

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