Santillan v New World Serv. Inc.
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Santillan v New World Serv. Inc. 2023 NY Slip Op 31655(U) May 11, 2023 Supreme Court, Kings County Docket Number: Index No. 519867/2018 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. 519867/2018 NYSCEF DOC. NO. 120 RECEIVED NYSCEF: 05/16/2023 o 0 At an IAS lAS Term, Term, Part Part 81 of of the Supreme Supreme Court Court of of the State of of New New York, York, held held in and for the County County of of Kings, Kings, at the Courthouse, Courthouse, at 360 Adams Adams Street, Street, Brooklyn, Brooklyn, New New York, On the 11th day of of May, 2023. May, 2023. PRESENT: PRESENT: CARL LANDICINO, l.S.C. CARL J. l. LANDICINO, J.S.C. __________________________________________________ ~----------------------x --------------------------------------------------.---------------------x RAUL RAUL SANTILLAN, SANTILLAN, Index No.: 519867/2018 Index No.: 519867/2018 Plaintiff, Plaintiff, DECISION DECISION AND AND ORDER ORDER against- - against THE NEW WORLD THE NEW WORLD SERVICE SERVICE INC. INC. and MANA MANA M. WAIBA, WAIBA, Motion Sequence Motion Sequence #5 Defendants. Defendants. ""' =- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -X -x Recitation, required by CPLR Recitation, as required CPLR 2219(a), 2219(a), of of the papers papers considered review of of this motion: considered in the review motion: Papers Numbered {NYSCEF) Papers Numbered (NYSCEF) Notice of Notice of Motion/Cross Motion/Cross Motion and Motion and Affidavits Annexed ............................................................. . 105-115, Affidavits (Affirmations) (Affirmations) Annexed.............................................................. 105-115, Opposing Affidavits (Affirmations) ............................................................ . 117, Opposing Affidavits (Affirmations)............................................................. Reply Reply Affidavits Affidavits (Affirmations) (Affirmations)............ ..................... ,............................................ . 118 Upon the foregoing papers, and Upon foregoing papers, and after after oral argument, argument, the Court Court finds finds as follows: follows: . This motor vehicle occurred on May This action action concerns concerns a motor vehicle accident accident that that occurred May 6, 2018. 2018. The The Plaintiff, Plaintiff, Raul Raul Santillan Santillan (hereinafter (hereinafter the "Plaintiff'), "Plaintiff'), claims claims that that he was injured injured when when his vehicle vehicle was was involved involved in a collision with a vehicle vehicle owned Defendant The collision with owned by Defendant The New Service, Inc. and operated operated by Defendant Defendant New World World Service, Mana Mana W. Waiba Waiba (hereinafter (hereinafter "the "the Defendants"). Defendants"). The Plaintiff Plaintiff alleges alleges that that the collision occurred occurred at the. the collision the· intersection or near intersection of of Wyckoff Wyckoff A venue venue at or near Eldert Eldert Street Street in Brooklyn, Brooklyn, New This Court Court issued issued a New York. This Decision that provided provided that Decision and Order Order dated dated May May 26, 2022 2022 that "[t]he Plaintiffs Plaintiffs motion (motion sequence sequence #3) that "[t]he motion (motion for summary judgment on the issue of liability summary judgment issue of liability is granted granted to the extent that that the Defendant Defendant driver the extent driver was negligent negligent and a proximate proximate cause cause of of the accident." accident." The Plaintiff Plaintiff now now moves moves (motion (motion sequence sequence #5) for an order order pursuant CPLR 321l(b) 321l(b) striking striking pursuant to CPLR Defendants' Affirmative Defense Defendants' Second Second Affirmative Defense alleging alleging Plaintiffs striking Defendants' Defendants' Plaintiffs culpable culpable conduct conduct and and striking 11 [* 1] 1 of 4 INDEX NO. 519867/2018 NYSCEF DOC. NO. 120 RECEIVED NYSCEF: 05/16/2023 Fourth Affirmative Affirmative Defense Defense alleging alleging Plaintiffs Plaintiffs lack lack of of use use of of seat belt. The The Plaintiff Plaintiff argues argues that these these Fourth affirmative defenses defenses have have no merit merit and should should be stricken. stricken. The The Plaintiff Plaintiff argues argues that that it inadvertently inadvertently failed affirmative make this application application as part of motion motion sequence sequence #3 but but that that the the Court Court has has discretion discretion to hear hear this to make part of application. The The Plaintiff Plaintiff provides provides an affidavit affidavit in support support of of this motion motion and also points points the Court Court to the application. that the Defendant Defendant has has been been precluded precluded by the order order of of the Honorable Honorable Lawrence Lawrence Knipel Knipel dated dated March March fact that That Order Order stated stated that that "[f]ailure "[f]ailure to comply comply with with this order order will will result result in the non-complying non-complying party 8, 2021. That party being precluded precluded from from offering offering evidence evidence without without the need need for further further motion motion pursuant pursuant to CPLR CPLR 3126(2) 3126(2) being without further further order order of of the the court." court." without Defendants argue argue that that this motion motion should should be denied denied as it is essentially essentially a motion motion to reargue reargue the The Defendants decision. The The Defendants Defendants point Court's prior Decision and Order Order that that states states that "[t]he "[t]he --~-Court's Court's prior prior decision. point to this Court's prior Decision issue of of Plaintiffs Plaintiff s comparative comparative negligence, negligence, if if any, shall be addressed addressed at trial." trial." The The Defendant Defendant also argues argues issue that the Plaintiff Plaintiff has has failed failed to show show that that he was free from comparative comparative fault. that initial matter, matter, the Court Court finds that that the instant instant application application is timely timely and should should be addressed addressed As an initial merits. The motion motion is not brought motion to reargue reargue pursuant CPLR 2221, 2221, and is not untimely on the merits. brought as a motion pursuant to CPLR untimely given that that it is not CPLR 3212. 3212. Instead, Instead, the instant instant application application has been given not made made pursuant pursuant to CPLR been made made pursuant pursuant CPLR 3211 (b (b). such, the motion motion is not subject subject to the Kings Kings County County Supreme Supreme Court Court Uniform Uniform Civil Civil to CPLR ). As such, Term Rules, Rules, that that provide that motions motions for summary summary judgment made no later later than than sixty sixty (60) days Term provide that judgment may be made after the filing of of a Note of Issue. Issue. See McNally v. Beva Corp., 45 A.D.3d A.D.3d 820, 821, 846 N. Y.S.2d Y.S.2d Note of McNally v. Beva Cab Corp., after 328,329 [2 nd Dept, Dept, 2007]. 2007]. Moreover, Moreover, this motion motion made made pursuant CPLR 3211, 3211, may may be made made at any time time pursuant to CPLR 328,329 "CPLR 3212 3212 (a)'s requirement requirement of of demonstrating demonstrating good good cause cause for the delay delay does does not not apply." apply." M & E 73and "CPLR 75, LLC v. 57 Fusion AD3d 1, 1,6,128 Dept 2020]. 2020]. 75, LLC v. Fusion LLC, LLC, 189 AD3d 6, 128 N.Y.S.3d N.Y.S.3d 200 [1st Dept 2 [* 2] 2 of 4 INDEX NO. 519867/2018 NYSCEF DOC. NO. 120 RECEIVED NYSCEF: 05/16/2023 •.•.:1I support of of the the Plaintiffs Plaintiff s application, application, he relies relies on his own own affidavit. affidavit. The The Plaintiff Plaintiff states states in his In support affidavit affidavit that that "[o]n "[o]n 5/6/18 5/6/18 at approximately approximately 12:00 a.m. I was wearing wearing my shoulder shoulder harness harness se~t belt belt and operating my 2008 2008 Nissan motor vehicle vehicle southbound southbound in the travel travel lane lane on Wyckoff Wyckoff A Avenue was operating Nissan motor venue at or near Eldert Street Street in the County County of of Kings, Kings, State State of of New York." The Plaintiff Plaintiff also states states that that "O]ust "must as I came came New York." Eldert intersection with with Eldert Eldert Street Street and was about about to pass pass the Defendant's Defendant's vehicle, vehicle, the the Defendant's Defendant's vehicle vehicle to the intersection suddenly, without without any signal signal or warning, warning, pulled pulled away from the curb curb and began began making making a U-turn V-turn in the suddenly, middle of of the roadway, roadway, striking striking my vehicle." vehicle." The Plaintiff Plaintiff also states states that that "I was driving driving in the travel travel lane middle when Defendant's Defendant's vehicle vehicle suddenly, suddenly, without without any signal signal or warning, warning, pulled pulled away away from from the curb and began began when making a U-turn, V-turn, striking striking my vehicle." vehicle." (See NYSCEF NYSCEF Doc. 107). making general, "the "the issue issue of of a plaintiffs plaintiffs comparative comparative negligence negligence may may be decided decided in the context context of of a In general, summary judgment motion where where the plaintiff plaintiff moves moves for summary summary judgment dismissing a defendant's defendant's summary judgment motion judgment dismissing affirmative defense defense alleging alleging comparative comparative negligence negligence and culpable culpable conduct conduct on the part part of of the affirmative plaintiff." Kwok v. West, 195 AD3d AD3d 1006, 1008, 146 N.Y.S.3d Dept 2021]; 2021]; see Kwok King King Ng Ng v. N.Y.S.3d 811, 812 [2d Dept plaintiff." v. Suniar, Suniar, 208 AD3d AD3d 1233, 1235, 175 N.Y.S.3d 263, 265 [2d Dept Dept 2022]; 2022]; Cui v. v. Marangoudakis v. N.Y.S.3d 263, also Marangoudakis Hussain, AD3d 788, 789, 173 N.Y.S.3d Dept 2022]. 2022]. Pursuant Pursuant to CPLR CPLR 321 3211(b), party Hussain, 207 AD3d N.Y.S.3d 44, 45 [2d Dept l(b), "[a] party may move move for judgment dismissing one or more more defenses, defenses, on the ground ground that that a defense defense is not stated stated or has may judgment dismissing merit." "In "In reviewing reviewing a motion motion to dismiss dismiss an affirmative affirmative defense, defense, the court court must must liberally liberally construe construe the no merit." pleadings in favor of of the party party asserting asserting the defense and give that that party party the benefit benefit of of every every reasonable reasonable the defense pleadings inference." Fireman's v. Farrell, AD3d 721, 721, 721,869 Y.S.2d 597, 597,598 Dept 2008]; Fireman's Fund Fund Ins. Co. v. Farrell, 57 AD3d 869 N. Y.S.2d 598 [2d Dept inference." see also Chestnut Chestnut Realty v. Kaminski, AD3d 1254, 1254, 1254,945 Dept 2012]. Realty Corp. v. Kaminski, 95 AD3d 945 N.Y.S.2d N.Y.S.2d 708, 708 [2d Dept "On a motion motion pursuant pursuant to CPLR CPLR 3211 (b (b), court should should apply apply the same same standard standard it applies applies to a motion motion "On ), the court dismiss pursuant pursuant to CPLR CPLR 3211 (a) (?), and the factual factual assertions assertions of of the defense defense will be accepted accepted as to dismiss true." Shah Shah v. v. Mitra, AD3d 971, 974, 98 N.Y.S.3d Dept 2019], 2019], quoting quoting Wells Fargo true." Mitra, 171 AD3d N.Y.S.3d 197 [2d Dept Fargo Bank, 3 [* 3] 3 of 4 INDEX NO. 519867/2018 NYSCEF DOC. NO. 120 RECEIVED NYSCEF: 05/16/2023 .' 2018]. "Moreover Dept 2018]. NA. 160 AD3d 912, 913, 74 N.Y.S.3d 321, 323 [2d Dept "Moreover, , ifthere ifthere is any doubt doubt N.Y.S.3d 321,323 AD3d 912,913, Rios, 160 v. Rios, NA. v. AD3d Rios, 160 v. Rios, NA. v. Fargo Bank, NA. as should not be dismissed." 160 AD3d dismissed." Wells Fargo defense, it shouldnot of a defense, availability of the availability to the as to never almost never defendant will almost 912,913,74 323 [2d Dept "[A]ffidavitsts submitted submitted by a defendant 2018]. "[A]ffidavi Dept 2018]. 321,323 N.Y.S.3d 321, 912,913, 74 N.Y.S.3d of cause of no cause has no plaintiff] has that [the plaintiff] conclusively that warrant establish conclusively they establish unless they CPLR 3211 unless under CPLR dismissal under warrant dismissal v. Bokhour v. quoting Bokhour 2017] quoting Dept 2017] N.Y.S 3d 67 [2d Dept action" AD3d 806, 60 N.Y.S Bell Corp., 152 AD3d Phillips v Taco Bell action" Phillips 2012]. Dept 2012]. N.Y.S 2d 675 [2d Dept GTI 682, 941 N.Y.S AD3d 682, Holdings, Inc., 94 AD3d Retail Holdings, GT! Retail defenses affirmative defenses Defendants' affirmative the Defendants' dismiss the In seek to dismiss not seek Plaintiff did not the Plaintiff proceeding, the instant proceeding, the instant In the 321 l(b) CPLR 3211 forth by CPLR standards set forth the standards result, the as part of the prior summary judgment. (b) judgment. As a result, motion for summary prior motion part of as to pursuant to motion pursuant part of made as part apply. Accordingly, Court finds finds that since this application was made of a motion this application that since Accordingly, the Court apply. plead not sufficiently have not Defendants have CPLR 321 3211(b), failed to establish establish that sufficiently plead that the Defendants that that Plaintiff has failed l(b), the Plaintiff CPLR Defense alleging Affirmative Defense Fourth Affirmative their Fourth their Second Affirmative alleging conduct and their culpable conduct alleging culpable Defense alleging Affirmative Defense their Second defendants that defendants Moreover, the fact that meritless. Moreover, aa failure seatbelt or that defenses are meritless. affirmative defenses these affirmative that these to use a seatbelt failure to facts surroundin trial as to the facts Plaintiff at trial may surroundingg examining the Plaintiff from examining them from prevent them not prevent does not precluded does be precluded may be the accident. subject accident. the subject hereby ORDERED Based foregoing, it is hereby ORDERED as follows: follows: Based on the foregoing, denied. is denied. 321l(b) is CPLR 321l(b) pursuant to CPLR order pursuant The sequence #5) for an order (motion sequence motion (motion Plaintiffs motion The Plaintiffs Court. of the Court. Order of and Order The Decision and the Decision constitutes the foregoing constitutes The foregoing ENTER: ENTER: 4 [* 4] 4 of 4 --, 1
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