Vargas v Oiz
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Vargas v Oiz 2023 NY Slip Op 31649(U) May 9, 2023 Supreme Court, Kings County Docket Number: Index No. 508155/2020 Judge: Carl J. Landicino 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. 508155/2020 NYSCEF DOC. NO. 54 RECEIVED NYSCEF: 05/16/2023 At an IAS Term, Part 81 of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse, at 360 Adams Street, Brooklyn, New York, on the 9th day of May, 2023. PRESENT: HON. CARL J. LANDIC:INO, Justice.' ---------------------------------------------.•:. ---------------------------X ASTERIO SANDOVAL VARGAS, Index No.: 508155/2020 Plaintiff, DECISION ORDER AND ORDER DECISION AND -against-against- Sequence # 1 Motion Motion Sequence VEHUDOR OIZ OIZ and SHOLOM SHOLOM LEIFER, LEIFER, VEHUDOR ,iI1 ,• Defendants. Defendants. _______ , --------. ----------X ---------------------------------------------.; ---------------------------------------------~-------~--------~----------)( motion: this motion: review of papers considered Recitation, as required by CPLR 22l~(a), of the papers considered in the review of this of 2219i(a), CPLR Recitation, required ,I Papers (NYSCEF) Numbered (NYSCEF) Papers Numbered and Motion and Notice Motion/Cross Motion of Motion/Cross Notice of 34-45, Affidavits Annexed .. ;i.................................................................... 34-45, (Affirmations) Annexed Affidavits (Affirmations) 48-51, Opposing Affidavits (Affirmations) 48-51, .................................................................... ) .. (Affirmations) Affidavits Opposing Reply Affidavits (Affirmations) .. ···••u••································································· 52. 52. Affidavits (Affirmations) Reply 11 •••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••• ! After of the papers and oral ~rgument, Court finds as follows: follows: ~rgument, the Court papers and review of After a review vehicle motor vehicle injuries arising personal injuries The action concerns concerns <i~ claim arising from from a motor claim for personal instant action The instant Vargas (the collision Sandoval Vargas Asterio Sandoval Plaintiff Asterio 2018. Plaintiff June 18, 2018. mi June occurred ort allegedly occurred that allegedly collision that II.1.II "Plaintiff') contends contends that that he was injur~d injur~d when when his vehicle vehicle was struck struck on the mid-to-rear mid-to-rear passenger passenger "Plaintiff') 1 by a vehicle side/by owned by Defendaht Defendaht Vehudor "Defendant Owner") Owner") and operated operated by Vehudor Oiz (the "Defendant vehicle owned side Plaintiff Defendant Sholom Leifer "Defendant Driver") "Defendants"). Plaintiff collectively the "Defendants"). Driver") ((collectively Leifer (the "Defendant Defendant Sholom The impact. The the impact. of the time of the time parking space of a parking alleges out of space at the pulling was pulling vehicle was Defendant's vehicle that Defendant's alleges that ,, " nd Streets, New Brooklyn, New incident l8t~ Avenue, Streets, in Brooklyn, and 52nd 51 st and between 5pt Avenue, between occurred on 18t~ purportedly occurred incident purportedly York. ,', I II Plaintiff moves (motion sequence ~equence #1) for an order order pursuant CPLR 3212 granting granting pursuant to CPLR moves (motion The Plaintiff th th ,, and 8th him summary summary judgment issue 'of liability liability and dismissing dismissing the Defendants' 5th, 7th Defendants' 5th, judgment on the issue:of [* 1] 1 of 5 0 INDEX NO. 508155/2020 NYSCEF DOC. NO. 54 RECEIVED NYSCEF: 05/16/2023 affirmative defenses defenses 1I.• The The Plaintiff Plaintiff contends contends that that summary summary judgment should be granted affirmative judgment should granted because because Defendants were were negligent negligent and the sole proximate proximate cause cause of Specifically, the of the the collision. collision. Specifically, the Defendants Plaintiff contends contends that that summary summary judgment should be granted granted given Plaintiff judgment should given that that there there is prima prima facie facie evidence that that Plaintiffs Plaintiffs vehicle vehicle was struck struck by the Defendant Defendant Driver Driver while evidence while Plaintiff Plaintiff was was proceeding proceeding with the right right of of way, way, below below the speed speed limit, limit, and wholly wholly within within his lane. The The Defendants Defendants oppose oppose with motion and contend contend that that Plaintiffs Plaintiffs application application for summary summary judgment the motion judgment should should be denied denied as there is an issue issue of of fact regarding regarding whether whether Plaintiff Plaintiff was negligent negligent in failing there failing to see the the defendants' defendants' vehicle at any time time prior prior to the accident. accident. vehicle Summary judgment drastic remedy remedy that that deprives deprives a litigant Summary judgment is a drastic litigant of of his or her her day in court, court, "should only only be employed employed wqen wqen there there is no doubt doubt as to the absence absence of and it "should of triable triable issues issues of of material fact." fact." Kolivas Kolivas v. v. Kirchoff, Kirchoff, 14 AD3d AD3d 493, 787 N.Y.S.2d N.Y.S.2d 392 [2d Dept material Dept 2005], 2005], citing citing Andre Andre v. Pomeroy, Pomeroy, 35 NY2d NY2d 361,364,362 361, 364, 362 N.Y.S.2d N.Y.S.2d 1341 [1974]. The proponent summary judgment v. proponent for summary judgment must make make a prima showing of of entitlement entitlement to judgment must prima facie facie showing judgment as a matter matter of of law, tendering tendering sufficient evidence evidence to demonstrate demonstrate the absence absence of of any material material issues sufficient issues of of fact. See Sheppard-Mobley Sheppard-Mobley v. King, King, 10 AD3d AD3d 70, 74, 778 N.Y.S.2d N.Y.S.2d 98 [2d Dept Dept 2004], 2004], citing v. citing Alvarez Alvarez v. v. Prospect Prospect Hospital, Hospital, NY2d 320, 324, 508 N.Y.S.2d N.Y.S.2d 923 [1986], [1986], Winegrad Winegrad v. v. New 68 NY2d New York Univ. Med. Ctr., 64 NY2d NY2d 851,853,487 N.Y.S.2d N.Y.S.2d 316 [1985]. [1985]. "In determining determining a motion motion for summary summary judgment, 851,853,487 judgment, evidence evidence must be viewed viewed in the the light light most most favorable favorable to the nonmoving nonmoving party, party, and and all reasonable reasonable inference inference must must be resolved resolved in favor favor of of the nonmoving nonmoving party." party." Adams must Adams v. v. Bruno, Bruno, 124 AD3d AD3d 566, 566, 1 N.Y.S.3d 280, 281 [2d Dept Dept 2015] 2015] citing citing Valentin Valentin v. v. Parisio, Parisio, 119 AD3d 854, 989 N.Y.S.2d N.Y.S.3d AD3d 854, N.Y.S.2d 621 Dept 2014]; 2014]; Escobar Escobar v. v. Velez, 116 AD3d AD3d 735, 735,983 N.Y.S.2d 612 [2d Dept [2d Dept 983 N.Y.S.2d Dept 2014]. 2014]. 1 I Although Although Plaintiff Plaintiff seeks seeks relief relief that that the matter matter should should proceed proceed on the issue issue of of damages, damages, Plaintiff Plaintiff does does not not ask for dismissal of of the Defendants' Defendants' pt 1'1 affirmative affirmative defense defense relating relating to comparative comparative fault. Although dismissal Although in reply, reply, Plaintiff Plaintiff specifies the I1st51 affirmative affirmative defense defense and and not the 5th,, he does not not explain explain the inconsistency inconsistency or or the the possible possible error, error, and specifies Defendants raised raised the the issue issue in their their opposition opposition papers. papers. the Defendants 2 [* 2] 2 of 5 INDEX NO. 508155/2020 ~ NYSCEF " DOC. NO. 54 :::: (~ RECEIVED NYSCEF: 05/16/2023 Once a moving moving party party has made made a prima showing of summary Once prima facie facie showing of its entitlement entitlement to summary judgment, "the burden burden shifts shifts to the opposing opposing party party to produce produce evidentiary judgment, "the evidentiary proof proof in admissible admissible form sufficient to establish establish the existence existence of of material material issues issues of of fact which which require require a trial trial of of the action" action" sufficient Garnham & Han Real Estate Estate Brokers Brokers v. v. Oppenheimer, Oppenheimer, 148 AD2d AD2d 493,538 Garnham Han Real 493,538 N.Y.S.2d N.Y.S.2d 837 [2d Dept Dept Failure to make make such such a showing showing requires requires denial denial of of the motion, sufficiency motion, regardless regardless of of the the sufficiency 1989]. Failure of the opposing opposing papers. papers. See Demshick v. Cmty. Hous. Mgmt. Corp., Corp., 34 AD3d of Demshick v. AD3d 518, 520, 824 N.Y.S.2d 166, 168 [2d Dept Dept 2006]; 2006]; see Menzel v. Plotnick, Plotnick, 202 AD2d 558, 558-559, 558-559, 610 N.Y.S.2d N.Y.S.2d Menzel v. AD2d 558, N.Y.S.2d Dept 1994]. However, However, "[a] plaintiff plaintiff is no longer longer required show freedom freedom from 50 [2d Dept required to show comparative fault fault in establishing establishing his or her prima case ... ..."" if show " ... ...that comparative prima facie facie case if they they can can show that the defendant's negligence negligence was was a proximate proximate cause cause of of the alleged alleged injuries." Tsyganash v. defendant's injuries." Tsyganash v. Auto Auto Mall Mall Fleet Mgmt., Inc., AD3d 1033, 1034, 1034,83 N.Y.S.3d 74, 75 [2d Dept City 83 N.Y.S.3d Dept 2018]; 2018]; Rodriguez Rodriguez v. v. City Fleet Inc., 163 AD3d of New York, 31 NY3d NY3d 312,320, 312,320,101 N.E.3d 366,371 366, 371 [2018]. [2018]. o/New 101 N.E.3d Turning to the merits merits of of the instant instant motion, motion, the Court Court finds that satisfied Turning that the the Plaintiff Plaintiff has has satisfied showing. In support support of of his motion, motion, Plaintiff Plaintiff relies relies on his his prima prima facie facie showing. his Affidavit, Affidavit, his deposition deposition testimony, and a certified certified Police Police Accident Accident Report. Report. In his affidavit, affidavit, Plaintiff states that, testimony, Plaintiff states that, at the time time of the accident, accident, "[he] "[he] was was driving driving straight straight ahead, ahead, within within the confines confines of of of my lane lane of of traffic, traffic, when when I impact to the passenger passenger side of of my vehicle, vehicle, in the area area of felt an impact of the back back passenger passenger door." door." As to impact, he states, states, "[t]he "[t]he impact impact was caused caused by the defendants' defendants' vehicle this impact, vehicle which, which, I believe, believe, came came of the parking parking spot. The impact impact moved moved my vehicle vehicle to the left." states that "[a]s out of left." Plaintiff Plaintiff also states that "[a]s driving on [18thth A Avenue], speed of of [his] vehicle vehicle was no more [he] was driving venue], the speed more than than 20 to 23 miles miles per per hour." Plaintiff Plaintiff also also proffers proffers a certified certified Police Police Accident Accident Report, Report, however, statement(s) relating hour." however, the the statement(s) relating description of of the accident accident is not attributed attributed to either either driver. to the description driver. Finally, Finally, when when asked asked in his deposition whether whether Plaintiff Plaintiff saw saw the Defendant Defendant Driver's Driver's vehicle vehicle prior deposition prior to making making contact contact with with it, 3 [* 3] 3 of 5 INDEX NO. 508155/2020 NYSCEF DOC. NO. 54 RECEIVED NYSCEF: 05/16/2023 New violated New Driver violated Defendant Driver that Defendant alleges that the "[n]o." (Page also alleges Plaintiff also (Page 29). Plaintiff stated, "[n]o." Plaintiff stated, the Plaintiff Sections 1143 and 1162. York (VTL) Sections Law (VTL) Traffic Law and Traffic Vehicle and York Vehicle roadway from any VTL ~1143. The of a ~ehicle about to enter enter or cross cross a roadway any ~ehicle about driver of The driver VTL §1143. vehicles all way of right the yield place other than another roadway shall yield the right of way to all vehicles shall place other than another roadway crossed. entered or crossed. approaching roadway to be entered approaching on the roadway parked standing, or parked stopped, standing, which is stopped, VTL vehicle which m,ove a vehicle shall miove person shall N_o person 1162. N.0 VTL §~1162. safety. e reasonabl with reasonable safety. made with unless and until such movement can be made movement can until such unless and the and the Plaintiff and the Plaintiff of the testimony of deposition testimony In the deposition ''rely on the Defendants "rely opposition, the Defendants In opposition, the that the remains. Defendan Defendant contend: that issue of of fact remains. Defendantsts contend contend that that an issue Defendants contend Driver. Defendants Defendant Driver. left for rear and looked to his rear parking spot Defendant slowly moved spot and looked and left for the parking of the out of moved out Driver slowly Defendant Driver parked double parked was double vehicle was that a vehicle contends that oncoming Driver contends Defendant Driver Additionally, Defendant traffic. Additionally, oncoming traffic. pull out was able that he was behind of the accident, accident, however concedes that able to pull out of of the the however he concedes time of him at the time behind him pull out to pull began to he began when he passed from had passed time had parking space. (Page (Page 41). asked now from when out much time now much When asked 41 ). When parking space. Defendant made, Defendant was made, vehicle was Plaintiff s vehicle with Plaintiff of contact with that contact moment that the moment and the spot and parking spot the parking of the of account of on account that, on testified that, Driver also testified Defendant Driver Driver stated, stated, "[l]ike away." (Page (Page 40). Defendant right away." "[l]ike right Driver Defendant also the of the spot spot slowly. slowly. (Page (Page 41). Defendant also pulled out of him, he pulled behind him, vehicle behind double-parked vehicle the double-parked it that it possibility that impact, "[t]here space on impact, states "[t]here is a possibility parking space the parking of the out of entirely out not entirely was not if he was that ifhe states that was still still was his speed his of speed rate of what rate asked what when asked Also, when space." (Page (Page 47). Also, parking space." bit in the parking little bit aa little "I Driver stated, Defendant Driver vehicle, Defendant Plaintiff s vehicle, vehicle impact with stated, "I with Plaintiff making impact upon making traveling upon was traveling vehicle was five maybe, five know, maybe, don't know, miles. I don't three miles. two, three mean, maybe two, very - maybe Like very percent. Like sure 100 percent. not sure I'm not mean, I'm to attempt to precautious attempt alleged precautious his alleged that his indicates that miles." (Page (Page 52). Defendant testimony indicates Driver's testimony Defendant Driver's miles." vehicle and Plaintiff ss vehicle him to see the Plaintiff pull out of of the spot should should have successfully enabled him and lly enabled have successfu parking spot the parking pull out that assuming that Even assuming and 1143. Even of VTL 1162 and yield violation ofVTL lane in violation traffic lane the traffic entering the before entering it before to it yield to Plaintiff ss that Plaintiff reflect that contact reflect of contact points of aa double-parked undisputed points him, the undisputed behind him, present behind was present car was double-parked car Defendant Accordingly, Defendant time of vehicle of the accident. accident. Accordingly, vehicle at the time Defendants' vehicle passing Defendants' was passing vehicle was of the accident. cause of Driver accident. proximate cause and a proximate negligent and was negligent Driver was 4 [* 4] 4 of 5 INDEX NO. 508155/2020 NYSCEF DOC. NO. 54 1: RECEIVED NYSCEF: 05/16/2023 However, However, the Court Court finds th~t thflt there there is an issue issue of of fact as to Plaintiff's Plaintiff's comparative comparative negligence negligence based based upon upon Defendant Defendant Driver's Driver's testimony testimony of of the position position of of his vehicle vehicle at the time of of contact. contact. Although Although he is not certain certain how how far, Defendant Defendant Driver Driver does does state state that that he was at least least mostly mostly out of of the parking parking space space at the time time of of impact. impact. This does raise raise an issue isSue of of whether whether Plaintiff Plaintiff failed to see what what there there was to be seen seen and ,,could "could have avoided avoided the collision. collision. In any event, event, insofar insofar as Plaintiff not specifically Plaintiff did not specifically seek seek dismissal dismissal of of the Defendant's Defendant's pt affirmative defense defense of of culpable culpable pt affirmative conduct conduct in the motion motion papers, papers, he cannot cannot receive receive a finding finding of of sole proximate proximate cause. cause. As such, the Plaintiffs Plaintiff's motion motion is granted granted to the extent extent that that the Defendant Defendant is negligent negligent and a proximate proximate cause cause of of the accident, accident, subject subject to a comparative comparative negligence negligence analysis analysis of of Plaintiffs Plaintiff's fault, if if any, at the time time of of trial. See Rodriguez Rodriguez v. v. City City of of New New York, 31 NY3d NY3d 312,320, 312,320,101 N.E.3d 366,371 366, 371 [2018]; [2018]; Kwok Kwok 101 N.E.3d King Ng. v. NY Slip Op. 04125 King v. W, 2021 NY 04125 [2d Dept Dept 2021]; 2021]; Maliakel v. Morio, AD3d 1018, 1018,29 Maliakel v. Morio, 185 AD3d 29 N.Y.S.3d N.Y.S.3d 99 [2d Dept Dept 2019] 2019] and Wray v. v. Galella, Galella, 172 AD3d AD3d 1446, 1448, 101 N.Y.S.3d 401, 403 N.Y.S.3d 401,403 [2d Dept Dept 2019], 2019], and Sapienza Sapienza v. v. Harrison, Harrison, 191 191 AD3d AD3d 1028, 142 N.Y.S.3d N.Y.S.3d 584, 588 [2d Dept Dept 2021]. 2021]. Based Based on the foregoing, foregoing, it is hereby hereby ORDERED ORDERED as follows: follows: The Plaintiff's Plaintiff's motion motion (motion (motion sequence sequence #1) for summary summary judgment issue of of liability liability is judgment on the issue granted granted to the extent extent that that the Defendant Defendant was negligent negligent and a sole proximate proximate cause cause of of the accident, accident, and the Defendants' Defendants' 5th, 5th, 7th, 7th, and 8th affirmative affirmative defenses defenses are dismissed. dismissed. The issue issue of of whether whether Plaintiff Plaintiff was comparatively comparatively negligent negligent will be addressed addressed by the jury. jury. The foregoing foregoing constitutes constitutes the Decision Decision and Order Order of of the Court. Court. , \ ENTER: ENTER: Carl Carl J. Landicino, Landicino, J.S.C. J.S.c. 5 [* 5] 5 of 5
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