D'Amato v. Cantone

• Decision Date: 05 September 2019
• Docket Number: Index 620411/2018
• Citation: 2019 NY Slip Op 34529 (U)
• Parties: ALEXA D'AMATO, Plaintiff, v. GINO A. CANTONE, Defendant.
• Court: New York Supreme Court

2019 NY Slip Op 34529(U)

ALEXA D'AMATO, Plaintiff, v. GINO A. CANTONE, Defendant.

Index No. 620411/2018

Supreme Court, Suffolk County

September 5, 2019

Unpublished Opinion

MOTION DATE 6-10-19

SUBMIT DATE 8-8-19

ROSENBERG & GLUCK, LLP Attys. for Plaintiff

LAW OFFICES OF MOIRA DOHERTY, PC

Attys for Defendant

PRESENT: Hon. JOSEPH A. SANTORELLI, Justice.

HON JOSEPH A SANTORELLI, J.S.C.

Upon the following papers numbered 1 to 15 read on this motion for summary judgment; Notice of Motion/ Order to Show Cause and supporting papers 1 - 7 Notice of Cross Motion and supporting papers __; Answering Affidavits and supporting papers 8 -12; Replying Affidavits and supporting papers 13-15; Othcr_; (and after hearing counsel in support and opposed to the motion) it is, The plaintiff, Alexa D'Amato, seeks an order pursuant to CPLR 3212 granting summary judgment on the issue of liability. The defendant opposes this application.

CPLR §3212(b) states that a motion for summary judgment "shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admission." If an attorney lacks personal knowledge of the events giving rise to the cause of action or defense, his ancillary affidavit, repeating the allegations or the pleadings, without setting forth evidentiary facts, cannot support or defeat a motion by summary judgment (Olan v. Farrell Lines, Inc., 105 AD 2d 653, 481 N.Y.S.2d 370 (1^st Dept, 1984; aff'd 64 N.Y.2d 1092, 489 N.Y.S.2d 884 (1985); Spearman v. Times Square Stores Corp., 96 AD 2d 552, 465 N.Y.S.2d 230 (2^nd Dept., 1983); Weinstein-Korn-Miller, New York Civil Practice Sec. 3212.09)).

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case (Friends of Animals v Associated Fur Mfrs., 46 N.Y.2d 1065, 416 N.Y.S.2d 790 [1979]). To grant summary judgment it must clearly appear that no material and triable issue of fact is presented (Sillman v Twentieth Century-Fox Film Corporation, 3 N.Y.2d 395, 165 N.Y.S.2d 498 [1957]). Once such proof has been offered, the burden then shifts to the opposing party, who, in order to defeat the motion for summary judgment, must proffer evidence in admissible form . . . and must "show facts sufficient to require a trial of any issue of fact" CPLR3212 [b]; Gilbert Frank Corp. v Federal Insurance Co., 70 N.Y.2d 966, 525 N.Y.S.2d 793, 520 N.E.2d 512 [1988]; Zuckerman v City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595 [1980]). The opposing party must assemble, lay bare and reveal his proof in order to establish that the matters set forth in his pleadings are real and capable of being established (Castro v Liberty Bus Co., 79 A.D.2d 1014, 435 N.Y.S.2d 340 [2d Dept 1981]). Furthermore, the evidence submitted in connection with a motion for summary judgment should be viewed in the light most favorable to the party opposing the motion (Robinson v Strong Memorial Hospital, 98 A.D.2d 976, 470 N.Y.S.2d 239 [4th Dept 1983]).

On a motion for summary judgment the court is not to determine credibility, but whether there exists a factual issue (see S.J. Capelin Associates v Globe Mfg. Corp., 34 N.Y.2d 338, 357 N.Y.S.2d 478, 313 N.E.2d 776 [1974]). However, the court must also determine whether the factual issues presented are genuine or unsubstantiated (Prunty v Keltie's Bum Steer, 163 A.D.2d 595, 559 N.Y.S.2d 354 [2d Dept 1990]). If the issue claimed to exist is not genuine but is feigned and there is nothing to be tried, then summary judgment should be granted (Prunty v Keltie's Bum Steer, supra, citing Glick & Dolleck v Tri-Pac Export Corp., 22 N.Y.2d 439, 293 N.Y.S.2d 93, 239 N.E.2d 725 [1968]; Columbus Trust Co. v Campolo, 110 A.D.2d 616, 487 N.Y.S.2d 105 [2d Dept 1985], affd, 66 N.Y.2d 701, 496 N.Y.S.2d 425, 487 N.E.2d 282).

The plaintiff commenced this action to recover damages for personal injuries sustained as a result of a motor vehicle accident that occurred on June 6, 2018. Plaintiff, Alexa D'Amato, alleges that she was operating a vehicle northbound on Wading River Road and was proceeding through its intersection with the Long Island Expressway eastbound exit 69 off ramp, Town of Brookhaven, Suffolk County, New York when defendant Gino A. Cantone, who was traveling eastbound on the off ramp for exit 69, passed a stop sign without stopping and collided with the plaintiffs vehicle. The plaintiff states that "after I fully proceeded into the intersection with the right-of-way, Defendant... traveled into the intersection without stopping at the stop sign and struck my vehicle", "defendant 'T-boned' my vehicle, striking the driver's side of my vehicle with the front of his vehicle." She further states that "the force of the impact was so severe that my vehicle overturned multiple times."

In opposition, the defendant's attorney argues that there are issues of fact requiring a trial and that the copy of the police report attached to the papers is uncertified and inadmissible. In addition, the defense argues that discovery has not been completed.

The Court in Gabler v. Marly Bldg. Supply Corp., 27 A.D.3d 519, 520, 813 N.Y.S.2d 120 (App Div 2d Dep't 2006), held that

The defendants demonstrated their prima facie entitlement to judgment as a matter of law by establishing that the plaintiff violated Vehicle and Traffic Law § 1141 when he made a left turn directly into the path of the defendants' vehicle as it legally proceeded with the right of way (see Moreback v Mesquita, 17 A.D.3d 420, 793 N.Y.S.2d 148 [2005]; Torro v Schiller, 8 A.D.3d 364, 777 N.Y.S.2d 915 [2004]; Casaregola v Farkouh, 1 A.D.3d 306, 767 N.Y.S.2d 57 [2003]; Rieman v Smith, 302 A.D.2d 510, 755 N.Y.S.2d 256 [2003]; Russo v Scibetti, 298 A.D.2d 514, 748 N.Y.S.2d 871 [2002]; Agin vRehfeldt, 284 A.D.2d 352, 726 N.Y.S.2d 131 [2001]; Stiles v County of Dutchess, 278 A.D.2d 304, 717 N.Y.S.2d 325 [2000]). As the defendants' vehicle had the right of way, Lam was entitled to anticipate that the plaintiff would obey the traffic laws which required him to yield to the defendants' vehicle (see Bongiovi v Hoffman, 18 A.D.3d 686, 795 N.Y.S.2d 354 [2005]; Mo re back v Mesquita, supra; Russo v Scibetti, supra; Agin v Rehfeldt, supra; Stiles v County of Dutchess, supra; Zambrano v Philhwan Seok, 277 A.D.2d 312, 715 N.Y.S.2d 750 [2000]; Cenovski v Lee, 266 A.D.2d 424, 698 N.Y.S.2d 868 [1999])... he was negligent as a matter of law in failing to see that which he should have seen through the proper use of his senses (see Bongiovi v Hoffman, supra; Spatola v Gelco Corp., 5 A.D.3d 469, 773 N.Y.S.2d 101 [2004]; Breslin v Rudden, 291 A.D.2d 471, 738 N.Y.S.2d 674 [2002]; Agin v Rehfeldt, supra; Stiles v County of Dutchess, supra; Zambrano v Philhwan Seok, supra; Bolta v Lohan, 242 A.D.2d 356, 661 N.Y.S.2d 286 [1997]; see also Weigand v United Traction Co., 221 NY 39, 116 NE 345 [1917]).

It is noted that the certified copy of the police accident report submitted is in admissible form and was therefore considered on this motion for summary judgment (see, Haff v. Fidalgo, 2010 NY Slip Op 32490 [N.Y. Sup. Ct. Aug. 30, 2010]; Lacagnino v Gonzalez, 306 A.D.2d 250, 760 N.Y.S.2d 533, [2d Dept 2003]; Hegy v Coller, 262 A.D.2d 606, 692 N.Y.S.2d 463 [2d Dept 1999]). In Donovan v W. Indian Am. Day Carnival Ass'n., Inc., 6 Misc.3d 1016[A], 1016A, 2005 NY Slip Op 50052[U], *9 [Sup Ct, Kings County 2005], the Court noted that

while police accident reports are, for the most part, inadmissible hearsay evidence and, thus, may not generally be considered in

...