Geico Gen. Ins. Co. v. The Town of Islip

• Decision Date: 18 November 2020
• Docket Number: Index No. 603778/2019,Motion Sequence No. 004; MG
• Citation: 2020 NY Slip Op 35133 (U)
• Parties: GEICO GENERAL INSURANCE COMPANY A/S/O DENISE WEIS and DENISEWEIS, Plaintiff, v. THE TOWN OF ISLIP and JOSEPH M. AMITRANO, Defendants.
• Court: New York Supreme Court

2020 NY Slip Op 35133(U)

GEICO GENERAL INSURANCE COMPANY A/S/O DENISE WEIS and DENISEWEIS, Plaintiff,
v.
THE TOWN OF ISLIP and JOSEPH M. AMITRANO, Defendants.

Index No. 603778/2019, Motion Sequence No. 004; MG

Supreme Court, Suffolk County

November 18, 2020

Unpublished Opinion

Motion R/D: 06/22/20

Submission Date: 07/24/20

Attorney for Plaintiff Suris & Associates, P.C.

Attorneys for Defendants Creedon & Gill P.C.

Ricky J. Lucyk, Esq. 2 Huntington Quadrangle

DENISE F. MOLIA, Justice

Upon the E-file document list numbered 80 to 109 read on the application of plaintiff Denise Weis for an order granting her summary judgment against defendants on the issue of liability; it is

ORDERED that the motion by plaintiff Denise Weis for an order granting her summary judgment against defendants on the issue of liability is GRANTED pursuant to CPLR 3212.

This is an action to recover damages for personal injuries allegedly sustained by plaintiff Denise Weis ("Weis") as a result of a motor vehicle accident that occurred on December 28, 2017 on the eastbound Sunrise Highway Service Road, approximately 200 feet east of Redmond Avenue, in the Town of Islip, County of Suffolk and State of New York. Weis served a notice of claim upon defendant Town of Islip ("Town") on January 11, 2018. Weis then commenced the within action by the filing of a summons and complaint on February 25, 2019. Issue was joined by defendants on April 3, 2019. Weis served a bill of particulars on July 29, 2019. A

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property damage subrogation claim was commenced by plaintiff Geico General Insurance Company ("Geico") in the First District Court, Ronkonkoma Part on May 15, 2018, which action was consolidated with this action by order of this Court dated October 15, 2019. The depositions of the parties have been completed and Weis now moves for summary judgment on the issue of liability. In support of her motion, Weis submits, inter alia, an attorney affirmation, her sworn affidavit, a copy of the pleadings, bill of particulars, consolidation order, uncertified amended police report, transcript of 50 (h) hearing, her examination before trial, the examination before trial of defendant Joseph M. Amitrano ("Amitrano"), and photographs. Weis asserts that while her vehicle was slowing down, it was struck in the rear by defendants' vehicle and that there is no issue as to Amitrano's liability. Defendants oppose the motion and submit, inter alia, an attorney affirmation, the sworn affidavit of Amitrano, an uncertified police narrative dated December 29, 2017, uncertified police accident report, the deposition transcripts of Weis and Amitrano, and Geico correspondence dated June 15, 2018. Defendants assert that the emergency doctrine applies to this case or, at the very least, there is a question of fact as to whether it applies. Defendants further argue that summary judgment is premature. Plaintiff replies and defendants sur-reply.

During her 50 (h) examination, Weis testified that the accident occurred at the exit ramp of Exit 44 of Sunrise Highway in the Town of Islip. Weis further testified that she was exiting Sunrise Highway heading onto the service road and as she was "slowing down to yield onto the service road", there was a car in front of her and "out of nowhere [she] got hit in the rear." Weis further testified that the rear of her car was impacted, the back windshield was "blown out...[and] the whole back was damaged and pushed in." At her examination before trial, Weis testified similarly that she was exiting Sunrise Highway and slowing down to merge onto the service road when her vehicle was suddenly hit in the rear. Plaintiff avers in her affidavit sworn to on May 20, 2020, that she "was traveling East on Sunrise Highway Service Road when suddenly and without warning" she felt an impact to the rear of her vehicle by a vehicle owned by the Town being operated by Amitrano. Plaintiff further avers in her affidavit that her vehicle "was fully in its lane of traffic at the time of the accident."

Defendant Amitrano testified during his examination before trial that on the date of the accident he was employed by the Town, that the vehicle he was operating was owned by the Town, that the accident occurred on the off-ramp of Sunrise Highway and that the impact was to the driver's side front bumper of the Town vehicle he was driving. Amitrano's sworn affidavit avers that both vehicles were merging onto the Sunrise Highway ramp at Exit 44, with plaintiff's vehicle being in front of his. He further avers that plaintiff's vehicle "came to a near stop in front of

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[him]," that he immediately applied his brakes hard and turned his steering wheel to the right in an effort to avoid colliding with plaintiff's vehicle but that despite his efforts, his vehicle "struck the passenger side rear bumper of plaintiff's vehicle." He further avers that "the actions of the plaintiff's vehicle coming to a near stop was unexpected."

Summary judgment is a drastic remedy and should only be granted in the absence of any triable issues of fact (see Rotuba Extruders, Inc. v Ceppos, 46 N.Y.2d 223, 413 N.Y.S.2d 141 [1978]; Andre v Pomeroy, 35 N.Y.2d 361, 362 N.Y.S.2d 131 [1974]). It is well-settled that the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient proof to demonstrate the absence of any material issues of fact (Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 925 [1986]; Seidman v Indus. Recycling Props., Inc., 52 A.D.3d 678, 861 N.Y.S.2d 692 [2d Dept 2010]). Failure to...