Dermon v Aracena

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Dermon v Aracena 2023 NY Slip Op 34023(U) September 13, 2023 Supreme Court, Kings County Docket Number: Index No. 501499/2023 Judge: Rupert V. Barry 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. 501499/2023 FILED: KINGS COUNTY CLERK 10/27/2023 NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 11/13/2023 Index No,: 50i499/2023 SUPREME COURT OF THE STATE OF NEW COUNTY OF KINGS: PART 13 YORK JACQUELYN DERMON; Plaintiff, Motion Seq; No.: 2 Cal. No.: 8 · lridexNo.: 501499/2023 against DAMAR ARACENA, ENTERPRISE FM TRUST, PC RICHARD & SON LLC and P.C. RICHARD & SON LONG ISLAND CORPORATION, DECISION & ORDER Defendants. Recitation, as required by CPLR§ 2219(a), of the papers considered in the review of Plaintiff's motion.for summaryJudgmcnt: NYSCEF Doc. Nos.: 27 ~ 40. Plaintiffi motion sought: (a) art Order, pursuant to CPLR § 50f5, granting the following: (1) vacatur ofthis Court's prior order dated July 19, 2023, wherein Plaintiffs Moti0n Seq. No.: 1 was denied due to Plaintiffs failure to <J.ppeat(see NYSCEF Doc. No. 25); (b) an order, pursuant to CPLR § 3212, granting Plaintiff summary judgment on the issue of liability, and setting this matter down for an immediate trial on damages only; (c) an order, pursuanfto CPLR § 321 l(b), striking Defendants' affirmative qefenses. Upon the foregoing papers, this Court This atition was cominenced now finds as folloWs: on January 16, 2023, with Plaintiff's filing of a summons and complaint and m'ises out ofa motor vehicle accident which took place 011 April 19; 2022, at E/B Belt Parkway at or near its intersection with Pennsylvania Avenue irt the County of Kings, State of New York. A vehicle operated by Defendant Damar Aracena struck in the rear the vehicle operated byPlairitiff. Thi~. matter was discontinued witilout prejudice against Defendant ENTERPRISE FM TRUST b)' way of a stipulation filed on the NYSC:EF system on. September 12, 2023 (NYSCEF J [* 1] 1 of 6 INDEX NO. 501499/2023 FILED: KINGS COUNTY CLERK 10/27/2023 NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 11/13/2023 In<lcx No.: 501499/2023 Doc, No; 40). Accordingly, Plaintiffs motion is inoot as it pertains to Defendant ENTERPRISE FMTRUST. Plaintiff initially filed its similar motion on Match 28, 2023 (Mot. Seq. No.: 1) seeking _relief identical requested in items (b}( c) above; On July 19, 2023, Plaintiffs_ counsel failed to appear for oral argument and, accordingly, the motion wa;, denied (NYSCEFDoc. No. 25). Defendants took no position with respect to Plaintiffs request that this Court vacate its prior July 19, 2023, denying Plaintiff's initial motion (Mot. Seq. 1) for Plaintiff's counsel's failure to appear for oral arguments pertaining to the same, In opposition to that portion of Plaintiffs motion made pursuant to CPLR § 3211 (b) seeking the striking of certain affirinative defenses_, Defendants took no position with respect to Plaintiffs motion as it pertains to Defendants' seventh, eighth, ninth, eleventh, thirteenth, fourteenth, seventeenth, and nineteenth affirinative d_efenses; and conceded that Defendants' twelfth affirinative defense applies exclusivelyto Defendant Enterprise FM Trust. Plaintiff's Motion Putsua:ntto CPLR § 5015 This Court must initially address Plaintiffs request that this Court vacate its prior Order dated July 19, 2023, which denied Plairitiff"s. March 28, 2023, motion (Mot. Seq. 1) which otherwise sought relief i<!entical to that sought in the instant motion, for Plaintiff's ·couns,d' s failure to appear at the July 19, 2023; oral argument pertaining fo the first rnotion. UnderCPLR § 501 S(a), "[t]he court which rendered a judgment or order may relieve a party from it upon such terms as may be just, on motion of any_ interested person with such notice as the court may direct, upon the .ground 6f ... excusable default, ifsuch motion is made within one year afterservice cifa copy of the judgment or order with written notice of its entry 2 [* 2] 2 of 6 INDEX NO. 501499/2023 FILED: KINGS COUNTY CLERK 10/27/2023 NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 11/13/2023 Index No.:501499/2023 upon the moving party, or, it the moving party has entered the judgment or order, within one year after such entry.' 1 Confusion regarding the return date of a motion, mis~diaryi11g of a motion, or a single isolated default in appearing s.hould be excused because it is the public policy of this State to decide cases on the merits (See, Ubaydov v. Kennedys Fleet, 31 AD3d 536 [2d Dept 2006]). Here, this Court finds that Plaintiffs counsel's failure to appear on the underlying_ motion constituted excusable default; and, accordingly, this Court's Order dated July 19, 2023 [NYSC:EFDoc. :No. 25] is hereby vacated. Plaintiff's Motion·Pursuant to CPLR 3212 Pursuant to CPLR § 3212(6); a motion for summary judgment" ... shall be granted if, upon all the papers and proof submitted, the cause of action or clefense shall be established sufficiently to warrant the ·court as a matter oflaw in directing Judgmentin favor of any party," The proponent of a summary judgment must make a prima facie showing of entitlement to Judg111ent as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986] [internal cUatio11s omittedj). Once the moving party has made a prima facie showing of entitlement to summary judgment, the burden shifts to the party opposing the motion to produce evidentiary proof sufficient to estabHsh the existence of a material issue of fact requiring trial of the action, Id A rear~end collision With a vehicle creates a p1•ima jade case of liability with regard to the operator of the moving vehicle;. unless the operator of the moving vehicle proffers an adeq,tate, non-negligent explanation fat. the. accident (Bustillo v. MatturfiJ, 292 AD2d 554 [2d Dept 2002] [internal dtadons omitiedJ) . . 3 [* 3] 3 of 6 FILED: KINGS COUNTY CLERK 10/27/2023 NYSCEF DOC. NO. 45 INDEX NO. 501499/2023 RECEIVED NYSCEF: 11/13/2023 lndcx No:: 50 l499/2023 Here,. Plaintiff has submitted an affidavit of Plaintiff(NYSCEF Doc. No. 3 l) as well as a . certified police accident report (NYSCEF Doc. No, 32) establishing that the accident occurred when the vehicle being operated by Plaintiff was struck in the rear by a vehicle operated by Defendant DAMAR ARACENA. In opposition, Defendants have not submitted any evidence to the contrary. Additionally, under the doctrine of respondeat superior, an employer will be liable for the negligene:e of an employee where that negligence occurs while the employee is acting within the scope of his employment (Sauter v. New York Tribune; 305 NY 442 [ 1953];, see also VTL § 388), For the foregoing reasons, Plairitiff s 111otion pursuant to CPLR § 3212 for partial summary judgment on the issue of liability is granted.as to .Defendants DAMAR ARACENA, PC RICHARD & SON LLC, and P.C. RICHARD&SON LONG ISLAND CORPORATION. Plaintiffs Motion Pursuant to CPLR § 321l(b) Plaintiff also moves, pursuant to CPLR § 32U(b), to strike Defendants' First; Second, Third, Fourth, Sixth, Seventh, Eighth, Ninth, Eleventh, Twelfth, Thirteenth, Fourteenth, Seventeenth, Eighteenth; Nineteenth, and Twentieth Affirmative Defenses. During oral argument \i(;:\d on September 13, 2023, Plaintiff agreed to withdraw her motion as it pertains to Defendants' Fourth Affirmative Defense, and Defendants agreed to withdraw their First; Second, Third; Sixth, Seventh, Eighth, Ninth, Eleventh, Twelfth, thirteenth, Fourteenth, Seventeenth, Eighteenth, Nineteenth, a:.nd Twentieth Affirmative Defenses. 4 [* 4] 4 of 6 INDEX NO. 501499/2023 FILED: KINGS COUNTY CLERK 10/27/2023 NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 11/13/2023 Index No.: 501499/2023 Plaintifrs Motion for an Immediate.Trial on the Issue of Damages Plaintiff's lhotion also sc.cks an immccJiatc trial on the issue of damages. While Plaintiff has established entitlement to pa,rtial summary judgment on the issue uf liability to the ex.tent described above, this Court finds that Defendants are entitled to discovery on the issue of dmnages and, accordingly, that branch of Plaintiff's. motion seeking an immediate trial on the issue of damages is denied arid di scovcry is to proceed on the issue of damages.. Accordingly, it is.hereby ORDERED, that Plaintiff's motion pursuant to CPLR § 5015to vacate this Court's July 19, 2023 Order is GRANTED;and it isfurther ORDERED, that Plaintiffs motion pursuantto CPLR § 3212 for summary judgment ori the issue of liability as to Defendants DAMAR ARACENA, PC RJCBARD & SON LLC, and PX:'.. RJCHARD&SONLONG ISLAND CORPORATION Js GRANTED; and itisfurther OlUlERED, that Plaintiffs motion pursuant to CPLR §3212 as it pertains to Defendant ENTERPRISE FM TRUST is DENIED as moot; and it is further ORDERED; that Plaiiitiff's inotiori pursuant to CPLR § 3211(6) as to Defendants' First; Second, Third, Fourth, Sixth, Seventh, Eighth; Ninth, Eleventh, Twelfth, Thirteenth, Fourteenth, Seventeenth, Eighteenth, Nineteenth. and Twentieth Afl1rniative Defenses is QRANTED; and it is further ORI>ERED, that Plaintiffs motion for an immediate trial oi1 the issue of damages is DENIED; and it is further ORDERED, that the remaining parties herein are to proceed with discovery pertaining to the issue of damages, 'fhe foregoing constitutes the d.ecisi.on an.d order of' this _Court. 5 [* 5] 5 of 6 INDEX NO. 501499/2023 FILED: KINGS COUNTY CLERK 10/27/2023 NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 11/13/2023 Index No. : 50149912023 * Al I applications not specifically addressed herein are Denied. Dated: September 13, 2023 V HON. RUPERT BARRY ~ ~ ~ 0 c-, -: •· , .. u) (J1 N 6 of 6 -- •\r"' ~ [* 6] ' _....c ~ 6 - r; \-. c. ,. I ':.. ...

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