Hossain v Dyl

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Hossain v Dyl 2023 NY Slip Op 31658(U) May 9, 2023 Supreme Court, Kings County Docket Number: Index No. 525895/2021 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. -, NI.. ------ NYSCEF DOC. NO. 39 f • INDEX NO. 525895/2021 RECEIVED NYSCEF: 05/16/2023 -; \, At an IAS Part 81 of lAS Term, Term, Part of the Supreme Supreme Court of of the the State Court State of held in and of New New York, York, held for the the County County of of Kings, Kings, at the Courthouse Courthouse, , at Adams Street, Brooklyn, New 360 Adams Street, Brooklyn, New York, York, on the 9th day of of May, 2023. May, 2023. PRESENT: PRESENT: HON. CARL HON. CARL J. LANDICINO, LANDICINO, Justice. Justice. --------------------------------------------- ·---------------------------X ---------------------------------------------~._--------------------------)( BELA YET HOSSAIN BELA YET HOSSAIN, , Index No.: No.: 525895/202 Index 525895120211 Plaintiff, Plaintiff, DECISION AND DECISION ORDER AND ORDER -against-against- Motion Sequence Motion Sequence # 1 . LUKASZ DYL, LUKASZDYL, Defendant. Defendant. ------------------------------------------------------------------------X -------------------------------------------------------------------------)( Recitation, as required required by CPLR CPLR 2219(a), 2219(a), of Recitation, of the papers considered in the review of this papers considered review of this motion: motion: Papers Numbered Numbered (NYSCEF) Papers (NYSCEF) Notice of Notice of Motion/Cro Motion/Crossss Motion Motion and Affidavits (Affirmatio ns) Annexed Annexed......................................................... Affidavits (Affirmations) Opposing Affidavits (Affirmatio ns)......................................................... Opposing Affidavits (Affirmations)... Reply Affidavits Affidavits (Affirmatio ns) . . . ........................................................... Reply (Affirmations) 15-19, 15-19, 34, 35 After a review review of papers and oral argument, After of the papers argument, the Court Court finds as follows: follows: The personal injuries The instant instant action action concerns concerns a claim claim for personal injuries allegedly allegedly arising arising from a motor motor vehicle collision May 13, 2019. vehicle collision that that occurred occurred on May 2019. The Plaintiff, Plaintiff, Belayet Belayet Hossain Hossain (hereinafte (hereinafterr the the "Plaintiff') "Plaintiff') alleges alleges that that he was injured injured when when his vehicle vehicle was struck in the rear rear by a vehicle owned was struck vehicle owned and operated and operated by Defendant Defendant Lukasz Lukasz Dyl (hereinafte (hereinafterr the "Defendan "Defendant"). The incident incident allegedly allegedly t"). The occurred occurred on the Gowanus Gowanus Ramp Ramp towards towards the Exit Exit to 38th 38th Steet Steet of of 1-278 Brooklyn/Queens Brooklyn/Queens Expressway Expressway. . The Plaintiff Plaintiff now now moves moves (motion The (motion sequence sequence #1) for an order CPLR 3212 3212 order pursuant pursuant to CPLR granting him him summary judgment on the issue granting summary judgment issue of of liability and dismissing dismissing the Defendant's liability and Defendant's affirmative affirmative defenses defenses of of comparativ comparativee fault. The Plaintiff contends that summary judgment should Plaintiff contends that summary judgment should be granted because the Defendant's Defendant's vehicle vehicle was be granted because cause of of the was negligent negligent and the sole proximate proximate cause the [* 1] 1 of 5 INDEX NO. 525895/2021 NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 05/16/2023 collision. collision. Specifically, Specifically, the Plaintiff Plaintiff contends contends that summary summary judgment should be granted granted given given that judgment should that there is prima evidence that that Plaintiffs Plaintiff s vehicle vehicle was hit in the rear rear by the Defendant's Defendant's vehicle. vehicle. there prima facie facie evidence In support support of of their their application, application, the Plaintiff Plaintiff relies relies on his own own affidavit affidavit and a Police Police Accident Accident Report. Report. The Defendant Defendant opposes opposes the motion motion and contends contends that Plaintiff s application application for summary summary that Plaintiffs judgment should judgment should be denied denied as the motion motion is premature premature insofar insofar as discovery discovery has not not been completed. been completed. Summary judgment is a drastic Summary judgment drastic remedy remedy that that deprives deprives a litigant litigant of of his or her court, her day in court, and it "should "should only only be employed employed when when there there is no doubt doubt as to the absence absence of of triable triable issues issues of of material Kolivas v. material fact." fact." Kolivas v. Kirchoff, 14AD3d 493, 787 N.Y.S.2d N.Y.S.2d 392 [2d Dept Dept 2005], 2005], citing Kirchoff, 14,AD3d 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 proponent for summary summary judgment v. judgment must prima facie must make make a prima showing of of entitlement entitlement to judgment matter of of law, tendering facie showing judgment as a matter tendering sufficient sufficient evidence evidence to demonstrate demonstrate the absence absence of of any material material issues issues of offact. Sheppard-Mobley fact. See Sheppard-Mobley v. King, 10 AD3d v. King, AD3d 70, 74, 778 N.Y.S.2d Dept 2004], 2004], citing citing Alvarez v. Prospect N.Y.S.2d 98 [2d Dept Alvarez v. Prospect Hospital, Hospital, 68 NY2d NY2d 320, 324, 508 N.Y.S.2d N.Y.S.2d 923 [1986], [1986], Winegrad Winegrad v. v. New New York Univ. Univ. Med. Ctr., 64 NY2d NY2d 851,853,487 851,853,487 N.Y.S.2d N.Y.S.2d 316 [1985]. [1985]. "In determining a motion motion for summary summary judgment, evidence "In determining judgment, evidence must must be viewed viewed in the light light most most favorable favorable to the nonmoving nonmoving party, party, and all reasonable reasonable inference inference must must be resolved resolved in favor favor of of the nonmoving nonmoving party." party." Adams Adams v. v. Bruno, Bruno, 124 AD3d AD3d 566, 566, 1 N.Y.S.3d 281 [2d Dept N.Y.S.3d 280, 280,281 Dept 2015] 2015] citing citing Valentin v. v. Parisio, AD3d 854, 989 Parisio, 119 AD3d 989 N.Y.S.2d N.Y.S.2d 621 [2d Dept Dept 2014]; 2014]; Escobar Escobar v. v. Velez, 116 AD3d AD3d 735, 735,983 N.Y.S.2d 612 [2d Dept Dept 2014]. 983 N.Y.S.2d 2014]. Once Once a moving moving party party has made made a prima showing of of its entitlement entitlement to summary summary prima facie facie showing judgment, "the judgment, "the burden burden shifts shifts to the opposing opposing party party to produce produce evidentiary evidentiary proof proof in admissible admissible form sufficient 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" Garnham Han Real Garnham & Han Real Estate Estate Brokers.v. Brokers.v. Oppenheimer, Oppenheimer, 148 AD2d AD2d 493,538 493,538 N.Y.S.2d N.Y.S.2d 837 [2d Dept Dept 1989]. Failure Failure to make make such such a showing showing requires requires denial denial of of the motion, motion, regardless regardless of of the sufficiency sufficiency of of the opposing opposing papers. papers. See Demshick Demshick v. v. Cmty. Haus. Hous. Mgmt. Corp., Corp., 34 AD3d AD3d 518, 520, 824 2 [* 2] 2 of 5 . NYSCEF DOC. "'r e INDEX NO. 525895/2021 NO. 39 RECEIVED NYSCEF: 05/16/2023 N.Y.S.2d 166, Menzel v. N.Y.S.2d 166, 168 168 [2d [2d Dept Dept 2006 2006];]; see Menzel v. Plotnick, 558,558-559,610 Plotnick, 202 AD2d AD2d 558, 558-5 59, 610 N.Y.S.2d N.Y.S.2d 50 ver, "[a] :plain tiff is no longe 50 [2d [2d Dept Dept 1994] 1994].. Howe However, ,plaintiff longerr requi required to show show freed freedom from red to om from comp arative fault lishing his or her prima prima facie comparative fault in in estab establishing case ... ..."" if show "" ... ...that facie case if they they can can show that the the defen dant's negli gence was mate cause defendant's negligence was aa proxi proximate cause ofthe of the alleg alleged injuries." Tsyganash v. Auto ed injuri es." Tsyga nash v. Auto Mall Mall Fleet Mgmt., Inc., Fleet Mgmt., Inc., 163 163 AD3 AD3dd 1033 1033,, 1034, 83 N.Y. N.Y.S.3d 74,75 Dept 2018 2018];]; Rodriguez City S.3d 74, 75 [2d Dept Rodriguez v. v. City o/Ne w York, of New York, 31 NY3 NY3dd 312,3 312,320, ~.E.3dd 366,3 366,371 [2018].]. 20, 101 :N.E.3 71 [2018 Turni ng to n, the Cour Turning to the the merit meritss of of the the instan instantt motio motion, Courtt finds finds that that suffic sufficient evidence has ient evide nce has been nted by tiff to estab lish, prima prim a facie, been prese presented by the the Plain Plaintiff establish, that the Defendant's facie, that Defendant's vehicle vehicle hit hit Plain tiffs vehic le in Plaintiffs vehicle in the the rear. rear. In suppo supportrt of of Plain Plaintiffs application, Plaintiff on tiffs appli cation, the the Plain tiff relies relies on the the his his affida vit, and ent Repo rt. As an initia affidavit, and aa Polic Policee Accid Accident Report. initiall matte matter,r, the certified certified police police accident accident report report is is admi ssible and ent by Defe ndant drive admissible and the the statem statement Defendant driver,r, that that "TPO "TPO Driver of VI [Defendant] states he Driver of Vl [Defe ndant] states he was lling E/B was trave travelling E/B in in the the left lane when when V2 sudde suddenly braked, nly brake d, causing causing him him to to rear rear end end V2 V2 [Plain tiff]", is ssible. The ent const [Plaintiff]", is admi admissible. The statem statement constitutes admission. Yassinn v. 188 itutes an admi ssion. See See Yassi v. Blackman, Blackman, 188 AD3d 64, 131 N.Y. S.3d 53, AD3d 62, 62,64,131 N.Y.S.3d 53, 55 [2d Dept Dept 2020 2020].]. In his affida affidavit, the Plain Plaintiff "[a]t vit, the tiff states states that that "[a]t the ta Taxi, beari the time time II was was drivin drivingg aa 2016 2016 Toyo Toyota bearing the New ng the New York York license license plate plate number number T732 090C." The tiff states T732090C." The Plain Plaintiff states that that "[a]t "[a]t aroun aroundd 5:45P 5:45PM, traveled eastbound on 1278 1278 Gowa Gowanus M, I trave led eastb ound on nus Ramp ng for traffi Ramp,, Exit Exit to to 38th 38th Stree Street.t. Whil Whilee slowi slowing traffic, from in the c, I was hit from the rear rear by by another another vehicle." vehicle." Rega rding the cation of Regarding the appli application of his his brake brakes,s, the Plain Plaintiff states that that "[w]h "[w]hen slowing down for for traffic, tiff states en slowi ng down traffic, II appli ed my ally and did not abrup applied my brake brakess gradu gradually abruptly slam on my tly stop or slam my brakes." brakes." These These statements statements are ient for tiffs to estab lish a primafacie prim afaci e show are suffic sufficient for the the Plain Plaintiffs establish showing. 163 AD3d ing. See See Martinez Martinez v. v. Allen, Allen, 163 AD3d 951, S.3d 130 951, 82 82 N.Y. N.Y.S.3d 130 [2d [2d Dept Dept 2018 2018].]. This is becau because rear-end collision se "[a] rear-e nd collis ion with with aa stopped stopped or or stopp ing vehic le creat es aa prima prim a facie facie case stopping vehicle creates case of of negli negligence againstst the gence again the operator operator of of the the rear rear vehicle, vehicle, there by requi ring that tor to rebut thereby requiring that opera operator rebut the infere inference of negli negligence nce of gence by by providing providing aa non-negligent non-negligent expla nation for ion." Klopc hin v. Masri, 45 AD3d explanation for the the collis collision." Klopchin v. Masri, AD3d 73 737, 737, 846 N.Y.S.2d [2d 7, 73 7, 846 N. Y. S .2d 311, 311, 311 311 [2d 3 [* 3] 3 of 5 INDEX NO. 525895/2021 ~' ~· f NYSCEF " r !- ,.•- DOC. NO. 39 J ~ !- RECEIVED NYSCEF: 05/16/2023 f.'" automobile from the another automobile approaches another Dept automobile approaches of an automobile driver of w]hen the driver Further, "[w]hen 2007]. Further, Dept 2007]. her] over his [or her] control over of speed rate of rear, he or she is bound speed and control reasonably safe rate maintain a reasonably bound to maintain v. Gaeta v. vehicle." Gaeta other vehicle." with the other colliding with vehicle, exercise reasonable avoid colliding care to avoid reasonable care vehicle, and to exercise Law§S 1129 Traffic Law and Traffic Vehicle and see Vehicle 2004]; see Dept. 2004]; Carter, 6 AD3d N.Y.S.2d 86 [2d Dept. 576, 576, 775 N.Y.S.2d AD3d 576,576, Taing 2014]; Taing Dept 2014]; N.Y.S.2d 157 [2d Dept 759-760, 979 N.Y.S.2d [a]; Williams Williams v. AD3d 759, 759-760, Spencer-Hall, 113 AD3d v. Spencer-Hall, 2012]. Dept 2012]. N.Y.S.2d 175 [2d Dept 954 N.Y.S.2d 741, 954 v. 740, 741, AD3d 740, Drewery, 100 AD3d v. Drewery, noted should be noted First, it should affirmation. First, In opposition, attorney's affirmation. relies on his attorney's Defendant relies the Defendant opposition, the discovery that discovery demonstrate that failed to demonstrate defendant[ s] failed the defendant[ that since the premature since not premature was not "motion was that the "motion were motion were opposition to the motion justify opposition essential to justify might that facts essential evidence or that relevant evidence lead to relevant might lead AD3d 715, Butler, 139 AD3d v. Butler, plaintiff." Turner the plaintiff." exclusively Turner v. of the control of and control knowledge and the knowledge within the exclusively within that evidence hope or speculation mere hope 716,32 speculation that evidence sufficient sufficient "The mere 2016]. "The Dept 2016]. N.Y.S.3d 174, 175 [2d Dept 716, 32 N.Y.S.3d is process is discovery process the discovery during the uncovered during to defeat summary judgJ.TIentmay judgment may be uncovered motion for summary defeat a motion 559, N.Y.S.2d 559, 852, 965 N.Y.S.2d 850, 852, AD3d 850, v. Ward, 106 AD3d insufficient Cajas-Romero v. motion." Cajas-Romero the motion." deny the insufficient to deny 759, A.D.3d 759, Distrib., Inc., 34 AD.3d v. WS Distrib., Lopez v. quoting Lopez 562,2013 2013], quoting Dept 2013], [2d Dept 03446 [2d Slip Op. 03446 N.Y. Slip 562, 2013 N.Y. person affidavit from a person submit an affidavit not submit does not 760,825 Defendant does more, the Defendant What is more, N.Y.S.2d 516. What 760, 825 N.Y.S.2d even report, even police report, the police stop in the sudden stop of a sudden with allegation of conclusory allegation The conclusory facts. The the facts. of the knowledge of with knowledge insufficient. See more, is insufficient. without more, statement, without assuming exculpatory statement, ah exculpatory that it is an admissibility in that assuming its admissibility New v. New David v. 2007]; David Dept 2007]; N.Y.S.2d 106, 107 [2d Dept Hakakian 494, 833 N.Y.S.2d 493, 494,833 AD3d 493, McCabe, 38 AD3d v. McCabe, Hakakian v. ""[A] conclusory 2005]. ""[A] Dept 2005]. York City City Bd. Of OfEduc., (Mem) [2d Dept conclusory N.Y.S.2d 294 (Mem) AD3d 639, 797 N.Y.S.2d Educ., 19 AD3d the caused the vehicle caused the vehicle of the stop of sudden stop the sudden that the vehicle that assertion by the operator operator of of [a] following following vehicle assertion v. (Gutierrez v. explanation" (Gutierrez nonnegligent explanation" provide a nonnegligent accident itself, to provide of itself, and of insufficient, in and accident is insufficient, Silberstein, 123 v. Silberstein, Grand v. N.Y.S.2d 563; see Le Grand Trillium, USA, LLC, 670-671, 974 N.Y.S.2d A.D.3d at 670-671,974 LLC, 111 AD.3d 202, N.Y.S.3d 202, 556, 13 N.Y.S.3d 554, 556, AD3d 554, Bartling, 130 AD3d v. Bartling, AD.3d Brothers v. 96)." Brothers N.Y.S.2d 96)." 999 N.Y.S.2d A.D.3d at 773, 999 2015]. Dept 2015]. 05630 [2d Dept 203-204,2015 Slip Op. 05630 N.Y. Slip 203-204, 2015 N.Y. 4 [* 4] 4 of 5 INDEX NO. 525895/2021 -?? NYSCEF ~,,~. t'S ,~,.•..DOC. NO. 39 ~'~- !:'$ JJ ,...,~ ,;.,~ RECEIVED NYSCEF: 05/16/2023 ,, Insofar Insofar as the Defendant Defendant has not raised raised an issue of of fact as to Plaintiffs Plaintiff s comparative comparative negligence negligence and the Plaintiff Plaintiff has moved moved for the dismissal dismissal of of Defendant's Defendant's affirmative affirmative defense defense in relation to culpable relation culpable conduct, conduct, the Defendant's Defendant's affirmative affirmative defenses defenses of of culpable culpable conduct conduct on the part part of Harrison, 191 of the Plaintiff Plaintiff are dismissed. dismissed. See Sapienza Sapienza v. v. Harrison, 191 AD3d AD3d 1028, 142 N.Y.S.3d N.Y.S.3d 584, 584,588 588 [2d Dept Dept 2021]; 2021]; Kwok Kwok King King Ng Ng v. v. West, 195 AD3d AD3d 1006, 146 N.Y.S.3d N.Y.S.3d 811, 811,812 Dept 2021]; 2021]; 812 [2d Dept see also Rodriguez Rodriguez v. New York, 31 NY3d v. City City of o/New 312, 320,101 366,371 [2018]. "[E]ven "[E]ven NY3d 312,320, 101 N.E.3d N.E.3d 366,371 though though a plaintiff plaintiff is not not required required to establish establish his or her freedom freedom from comparative comparative negligence negligence to be entitled judgment on the issue entitled to summary summary judgment issue of of liability, liability, the issue issue of of a plaintiffs comparative plaintiffs comparative negligence judgment motion negligence may be decided decided in the context context of of a summary summary judgment motion where where the plaintiff plaintiff moves moves for summary judgment dismissing summary judgment dismissing a defendant's defendant's affirmative affirmative defense defense alleging alleging comparative comparative negligence." Marangoudakis v. negligence." Marangoudakis v. Suniar, Suniar, 208 AD3d AD3d 1233, 1235, 175 N.Y.S.3d N.Y.S.3d 263, 265 [2d Dept Dept 2022]. 2022]. Based Based on the foregoing, foregoing, it is hereby hereby ORDERED ORDERED as follows: follows: The Plaintiffs' Plaintiffs' 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 driver driver was negligent negligent and the proximate proximate cause cause of of the th th th h accident, and the Defendant's 6th, accident, Defendant's 6 , 10 and 11t 11th affirmative affirmative defenses defenses are dismissed. dismissed. The matter matter shall proceed proceed on the issue issue of of damages. damages. The foregoing foregoing constitutes constitutes the Decision: Decision and Order Order of of the Court. Court. /'f ENTER: ENTER: arl J. Landicino, J.S.C 5 [* 5] 5 of 5 JJ

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