Ezenyilimba v Gassama

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Ezenyilimba v Gassama 2023 NY Slip Op 33265(U) September 7, 2023 Supreme Court, Queens County Docket Number: Index No. 712478/2019 Judge: Denis J. Butler 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. 712478/2019 FILED: QUEENS COUNTY CLERK 09/07/2023 04:39 PM NYSCEF DOC. NO. 71 RECEIVED NYSCEF: 09/07/2023 Short Form Order FILED NEW YORK SUPREME COURT - QUEENS COUNTY 9/7/2023 ,A COUNTY CLERK QUEENS COUNTY Pr esent : HONORABLE DENIS J . BUTLER Justice ------------ ------------ --- -- - --- - ----- x RAYCENT H EZENYILIMBA , Plaintiff , - against - IAS Part 12 Index Number:71247 8/2019 Motion Date : July 25 , 2023 Motion Seq . No . : 002 KE I FALA GASSAMA and SYLD I A TRANS PORT INC ., Defendants . ------ - ---------- - ----------- - --- - -- - -- x The following papers were read on this motion by plaintiff for an order : ( 1) pursuant to CPLR § 3212 granting summary judgment against defendants Keifala Gassama and Syldia Transport , Inc . , as t o the i ssue of liability ; (2) finding that plaintiff is free from comparative f ault and dismissing defendants ' First , Third, Fourth , Fifth , Sixth, Seventh , Eighth, and Ninth , Affirmative Defenses . Papers Numbered Notice of Mo t ion , Affirmation , Exhib i ts ....... . . . ..... .. E53-65 Affirmat i on In Opposit i on , Exhibits ... .. . .. . ...... .. .... E66 - 69 Rep l y Affirmation ... .... . . .... .. .......... ..... . . ....... E70 Upon the foregoing papers , it is ordered that this motion is determined as follows : On December 6 , 201 7, the vehicle operated by plaintiff was driving on 12 0th Avenue in Queens when plaintiff entered the i n tersection of 153rd Street . The subject intersection was governed by a stop sign affecting traffic entering the intersection from 153 r d Street. Plaintiff was in the middle of the intersection proceeding th r ough the intersection when the middle passenger side [* 1] 1 of 4 FILED: QUEENS COUNTY CLERK 09/07/2023 04:39 PM NYSCEF DOC. NO. 71 INDEX NO. 712478/2019 RECEIVED NYSCEF: 09/07/2023 of pJ a i ntif r' .s vehicle v.:as str :.icK by the i ront and operated by defenriants. l the veL.:./: ~e owneci The first branch of the motion by plaintiff seeks judg~ent in plaintiff's favo u~ the lssJe of ll~bility. summary A proponcr,t for ::;ummary _:-_;dgmer'.L TUSt m,,,<e a p:·'n,:-1 fa:-·.',e showing of entitlement to judgment, as a matter of law, through the submission of sufficient evidence to demonstrate the absence of any material issues of fact (see A~varez v pv,)spect Ensp., b'~; t,\2d 3:'C, 24 [lccl>::6]). Or,cc the movant e::.;tc::.blishes crima :<'ic.\e entiLlc·ment tu summary j udg:re:-:t, th=· burdc·n shifts t. o the oppo~.ing party t o produce evidence, in admissible form, sufficient to establi5h the existence of triable issues of fact (see Id.; Zuckerman v City of NewYcrk, 49 NY2d55.,, 63 [1980~). On a motion for summary Judgment on the issue of a defendant's liability, a plaintiff is no longer required to show freedom from comparative fault to establish his or her prima facie entitlement to 71.dgment c.'::S a rnat::Er of lc,w :see Rodr:guez v C:ity of Lew Yo. k, 31 ~·JY3d 312, 3 8 [2 HJJ; Marau.wudakis v Sunia', 2022 HY Slip C:~, 05208 [2d Dept 2022]). "Even though a plaintiff is not required to establish his or her freedom from comparative negligence to be entitled to summary judgment on the issue of liability, the issue of a plain~. :i f f ' s comparative Leglig;=cnce may b? decid;_;d in ::he context of c1. summary ~ ,1dgmen:_ rr:c :_ion where the r la inti£ f noves :'.: or summary judgment dismissing a defendant's affirmative dEf,:cnse alleging comparative negligence and culpable conduct on the part of the plaintiff" (Kwok Ki~g Ng v West, 195 AD3d 1006, 1008 2d Dep~ 2021, ) . "Pursuant to Vehicle and Traffic Law § 1142 (a), a driver entering an intersection controlled by a stop sign must yield the riqh::-of-way to any other vehicle I at i alreaciy in t·,,, intersection o~ that is approa ~ing sc losely a~ to cons~itute a~ immediate ha a··-d" (Fark v ::.=1·.;:1ta, 2J AD3d 6f: [2d 20 l [internal quotation marks omitted]). "As a general matter, a driver who fails to yield the right-of-way after stopping at a stop sign is in violiticm of >1icle c~n~t Traf~ _ La,:. 1142 :.i, and 1 negligent a:3 a matt_ci of la·.v {id. l1.nterral quotdti ma'k:?, omitted]). ''Vih:i 7e an o:)erator f a motor ·v·ehich, L.raveling with the right-of-way is entitled to assume that the opposing driver will obey the traffic laws requiring him or her to yield, the operator l ~·aveling with t Le right f-way has cL, obli:: :. i ~,n to keep a p_oper lockout anci see whaL can be seen th~o~ah the easona~ic use o his or her senses to avoid colliding with other vehiclesll (White v Adorn Rental Transp., Inc., 150 AD3d 938, 939 [2d Dept 2017)). 11 [* 2] 2 of 4 FILED: QUEENS COUNTY CLERK 09/07/2023 04:39 PM NYSCEF DOC. NO. 71 INDEX NO. 712478/2019 RECEIVED NYSCEF: 09/07/2023 Plaintiff, in support, annexed plaintiff's deposition testimony wherein plaintiff testified she was traveling on 120th Avenue at 25 miles per hour, and was in the middle of the subject intersection when defendants' vehicle struck the middle passenger side of plaintiff's vehicle, and that the impact to plaintiff's vehicle was heavy and pushed her vehicle into a fence. Plaintiff further testified at her deposition that she never observed defendants' vehicle prior to the accident, and that defendants' vehicle came from 153rd Street, which is governed by a stop sign. This evidence demonstrated, prima facie, that defendants were negligent in the happening of the accident, and that plaintiff was not at fault in the happening of the accident (see Park v Giunta, 217 AD3d 661 [2d Dept 2023]; Bentick v Gatchalian, 147 AD3d 890, 891 [2d Dept 2017]). In opposition, defendants failed to raise a triable issue of fact as "counsel's affirmation, standing alone, was insufficient to raise a triable issue of fact" (id.). As such, the first branch of the motion by plaintiff seeking summary judgment in plaintiff's favor on the issue of liability is granted, and defendant's third affirmative defense asserting comparative fault is dismissed. The second branch of the motion by plaintiff seeks to dismiss defendants' first, fourth, fifth, sixth, seventh, eight, and ninth affirmative defenses on the ground the affirmative defenses have either been waived, or are inapplicable to this case. Defendants, in opposition, failed to address this branch of plaintiff's motion. As such, the second branch of the motion by plaintiff seeking to dismiss defendants' first, fourth, fifth, sixth, seventh, eight, and ninth affirmative defenses is granted in the absence of opposition to that specific branch of the motion. Accordingly, it is hereby ORDERED that the first branch of the motion by plaintiff seeking summary judgment on the issue of liability is GRANTED in favor of the Plaintiff and against the Defendant, and defendants' third affirmative defense asserting comparative negligence is ~ereby DIS~ISSED; a~d it is further [* 3] 3 of 4 INDEX NO. 712478/2019 FILED: QUEENS COUNTY CLERK 09/07/2023 04:39 PM NYSCEF DOC. NO. 71 RECEIVED NYSCEF: 09/07/2023 ORDERED that the second branch of the motion by plaintiff seeking to dismiss defendants' first, fourth, fifth, sixth, seventh, eight, and ninth affirmative defenses is GRANTED and defendants' first, fourth, fifth, sixth, seventh, eight, and ninth hereby DISMISSED. This constitutes the decision and order of the court . Dated: September 7, 2023 Denis J. FILED 9/7/2023 -rA- COUNTY CLERK QUEENS COUNTY 4 [* 4] 4 of 4 But:ff, J.S.C.

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