Coyle v. Martocello
| Decision Date | 06 January 2021 |
| Docket Number | Index No. 612633/2019,Mot. Seq. Nos. 001-MotD,002-XMD |
| Citation | 2021 NY Slip Op 33422 (U) |
| Parties | GREGORY J. COYLE, Plaintiff, v. AMANDA N. MARTOCELLO, SUNSET AIRPORT & LIMOUSINE SERVICE, INC. and LOUIS HOPPER Defendants. |
| Court | New York Supreme Court |
ADJ. DATE 9/29/2020
Upon the following papers e-filed and read on these motions for summary judgment: Notice of Motion and supporting papers by plaintiff, dated February 3 2020; notice of Cross Motion and supporting papers by defendants Sunset Airport & Limousine Service, Inc. and Louis Hopper, dated May 6. 2020; Answering Affidavits and supporting papers to # 002, by defendant Amanda Martocello dated August 5. 2020 ; Replying Affidavits and supporting papers to # 002 by defendants Stu1set and Hopper. dated August 7, 2020 ; Other_ (and after hearing counsel in support and opposed to the motion) it is.
ORDERED that plaintiffs motion (# 001) for an order granting him partial summary judgment on the issue of liability against all defendants, and the cross motion (# 002) by defendants Sunset Airport & Limousine Service, Inc. and Louis Hopper for summary judgment dismissing the complaint as against them are consolidated for the purposes of this determination; and it is further
ORDERED that plaintiff's motion for an order granting him partial summary judgment on the issue of liability, pursuant to CPLR § 3212 (e) against all named defendants is granted to the extent that partial summary judgment in his favor is granted against defendant Amanda Martocello, and is otherwise denied; and it is further ORDERED that the cross motion by defendants Sunset Airport & Limousine Service, Inc. and Louis Hopper for summary judgment dismissing the complaint as against them is denied; and it is further
ORDERED that counsel for the parties, and if a party has no counsel, then the party, are directed to appear before the Court in IAS Part 29, located at the Alan D. Oshrin Courthouse, One Court Street, Riverhead, New York 11901, on March 9, 2021 at 9:30 a.m., for a Conference, or if the court is still operating remotely due to the COVID-19 health crisis, such appearance shall be held remotely. Counsel and any parties who are not represented by counsel shall, with a copy to all parties, contact the court by email at Sufkevins@nycourts.gov at least one week prior to the date of the scheduled conference to obtain the date, time and manner of such conference; and it is further
ORDERED that if this Order has not already been entered, plaintiff is directed to promptly serve a certified copy of this Order, pursuant to CPLR §§8019(c) and 2105, upon the Suffolk County Clerk who is directed to hereby enter such order; and it is further
ORDERED that upon Entry of this Order, plaintiff is directed to promptly serve a copy of this Order with Notice of Entry upon ail parties and to promptly tile the affidavits of service with the Clerk of the Court.
This is an action to recover damages for personal injuries allegedly sustained by plaintiff as a result of a motor vehicle accident that occurred on May 10, 2019 on Lakeland Avenue at or near its intersection with Elaine Drive, in the Town of Islip. The accident allegedly happened when a vehicle that plaintiff was riding in as a passenger, owned by defendant Sunset Airport & Limousine Service, Inc., and operated by defendant Louis Hopper was struck in the rear by a vehicle driven by defendant Amanda Martocello.
Plaintiff now moves for partial summary judgment on the issue of liability against all of the defendants- In support of the motion, plaintiff submits copies of the pleadings, a certified police accident report and his own affidavit.
In his affidavit, plaintiff states that on May 10, 2019, at 2:04 p.m., he was a passenger in a taxi that was struck by another vehicle in the rear. The certified police accident report contains an admission by defendant Amanda Martocello who told the officer at the scene that she was unable to stop her vehicle and it struck the rear end of the vehicle that was in front of her as it was stopping.
It is well settled that a party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issue of fact (see Alvarez v Prospect Hasp., 68 N.Y.2d 320, 508 N.Y.S.2d 923 [1986J; Friends of Animals v Associated FurMfrs., 46 N.Y.2d 1065, 1067, 416 N.Y.S.2d 790 [1979]). The failure of the moving party to make a prima facie showing requires the denial of the motion regardless of the sufficiency of the opposing papers (see Winegrad v New York Univ. Med. Ctr., 64N.Y.2d 851, 487 N.Y.S.2d 316 [1985]). Once the movant establishes such burden, the burden shifts to the party opposing the motion which must produce evidentiary proof in admissible form sufficient to require a trial of the material issues of fact (Zuckerman v City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595 [1980J. The court's function is to determine whether issues of fact exist, not to resolve issues of fact or to determine matters of credibility; therefore, in determining the motion for summary judgment, the facts alleged by the opposing party and all inferences that may be drawn are to be accepted as true (see Roth v Barreto, 289 A.D.2d 557, 735 N.Y.S.2d 197 [2001]; O'Neill v Fishkill, 134 A.D.2d 487, 521 N.Y.S.2d 272 [1987]).
The Vehicle and Traffic Law establishes standards of care for motorists, and an unexcused violation of such standards of care constitutes negligence per se (see Hodnett v Westchester County Dept. of Pub. Works & Transp., 181 A.D.3d 655, 122 N.Y.S.3d 111 [2d Dept 2020]; Barbieri v Vokoun, 72 A.D.3d 853, 900 N.Y.S.2d 315 [2d Dept 2010]; Coogan v Torrisi, 47 A.D.3d 669, 849 N.Y.S.2d 621 [2d Dept 2008]; Dalai v City of New York, 262 A.D.2d 596, 692 N.Y.S.2d 468 [2d Dept 1999]). Vehicle and Traffic Law Section 1129 (a) provides: "The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon and the condition of the highway."
When the driver of a vehicle approaches another vehicle from the rear, he or she is bound to maintain a reasonably safe rate of speed and control over his or her vehicle, and to exercise reasonable care to avoid colliding with the other vehicle (Sooklall v Morisseav-Lafague, 185 A.D.3d 1079, 128 N.Y.S.3d 266 [2d Dept 2020]; Catanzaro v Edery, 172 A.D.3d 995, 101 N.Y.S.3d 170 [2d Dept 2019]; Tumminello v City of New York, 148 A.D.3d 1084, 49 N.Y.S.3d 739 [2d Dept 2017J; Brothers v Battling, 130 A.D.3d 554, 13 N.Y.S.3d 202 [2d Dept 2015]; ...
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