Kantor v. Alyeshmerni

• Court: New York Supreme Court
• Writing for the Court: HONORABLE CHEREÉ A. BUGGS JUSTICE
• Citation: Kantor v. Alyeshmerni, 2021 NY Slip Op 33100(U), Index 706008/2020 (N.Y. Sup. Ct. Nov 10, 2021)
• Decision Date: 10 November 2021
• Docket Number: Index 706008/2020
• Parties: JONATHAN KANTOR, Plaintiff, v. OMID ALYESHMERNI and MIRIAM ALYESHMERNI, Defendants.

2021 NY Slip Op 33100(U)

JONATHAN KANTOR, Plaintiff, v. OMID ALYESHMERNI and MIRIAM ALYESHMERNI, Defendants.

Index No. 706008/2020

Supreme Court, Queens County

November 10, 2021

Unpublished Opinion

Motion Date: November 3, 2021

SHORT FORM ORDER

HONORABLE CHEREÉ A. BUGGS JUSTICE

The following e-file papers numbered 17-28, 36-41 submitted and considered on this motion by Plaintiff Jonathan D. Kantor (hereinafter referred to as "Kantor") seeking an Order pursuant to Civil Practice Law and Rules (hereinafter referred to as "CPLR") 3212 for summary judgment on the issue of liability against defendants Omid Alyeshmerni and Miriam Alyeshmerni (hereinafter collectively referred to as "Alyeshmerni") and setting this matter down for an immediate jury trial on the issue of damages; pursuant to CPLR 3211 striking the fourth affirmative defense of culpable conduct raised in Alyeshmerni's answer.

Papers Numbered

Notice of Motion- Affirmation in Support- Exhibits.....

EF 17-28

Affirmation in Opp- Exhibits..........................................

EF 36-39

Reply Affirmation...........................................................

EF 40-41

Relevant Procedural History

Kantor initiated this personal injury action on May 28, 2020 seeking to recover damages for serious injuries that he alleged he sustained as a result of a motor vehicle accident which occurred on November 28, 2019 on Broadway at or near its intersection with Mann Place, Village of Lawrence, County of Nassau, State of New York. Alyeshmerni served a verified answer on July 20, 2020, asserting affirmative defenses including as a fourth affirmative defense Kantor's culpable conduct. Discovery is not complete. Kantor now moves for summary judgment on the issue of liability and to strike the culpable conduct affirmative defense. In support of the motion, Kantor submitted the pleadings; his verified bill of particulars; party deposition transcripts; certified police report; and color photographs. Essentially, Kantor argues that Alyeshmerni is solely responsible for this accident because the defendant driver failed to comply with applicable traffic rules and regulations, including Vehicle and Traffic Law sections 1128, 1143 and 1173.

Statement of Material Facts

Kantor's statement of material facts as per section 202.8-g is the following: 1.The accident took place on November 28, 2019. (See certified police accident report) 2.The accident occurred at approximately 1:20 p.m. (See certified police accident report)

3.Defendant Alyeshmerni operated a 2017 Toyota sedan with an Arizona license plate, FP 19220 (See certified police accident report)

4.Plaintiff operated a 2017 Mercedes Benz sedan with a New York license plate, HBB 2549 (See certified police accident report)

5.The accident took place while defendant was pulling out of the driveway at 172 Broadway in Lawrence, New York. (See certified police accident report)

6.The crash took place on Broadway. (Alyeshmerni deposition transcript; certified police accident report)

7.Prior to the accident with plaintiff, defendant operator Alyeshmerni stopped her vehicle more than one time before exiting the driveway onto Broadway. At that time approximately 5 to 10 vehicles passed her on Broadway. (Alyeshmerni deposition transcript; certified police accident report)

8. Defendant operator Alyeshmerni was pulling out of the driveway onto Broadway with the intention to make a left turn onto Mann Place at the time of the accident. (Alyeshmerni deposition transcript; certified police accident report)

9.Defendant's Miriam Alyeshmern (sic) view was obstructed by parked vehicles on her left side at the time she pulled out of the driveway and crashed into plaintiff. (Alyeshmerni deposition transcript; certified police accident report)

10. Plaintiff was travelling (sic) West down Broadway when defendant operator Miriam Alsyeshmern (sic) pulled out of the driveway and crashed into plaintiff. (Kantor's deposition transcript; certified police accident report)

11.Defendant crashed into plaintiff's vehicle and impacted plaintiff's right rear side of his vehicle with the front of her vehicle. (Kantor's deposition transcript certified police accident report)

12.Plaintiff did not see defendant's vehicle while traveling West on Broadway. The first time he became aware of defendant's vehicle was on impact. (Kantor's deposition transcript certified police accident report)

13.The impact caused the defendant's vehicle to travel 10 to 20 feet down the block. (Kantor's deposition transcript; certified police accident report)

14.As a result of the impact by defendant's vehicle, plaintiff's left shoulder was pushed into the seatbelt and his back and neck whipped laterally from side to side. (Kantor's deposition transcript; certified police accident report) 15. Plaintiff suffered severe spinal injuries requiring spinal surgery as a result of this accident.

Deposition Testimony of Kantor

In regards to Kantor's deposition testimony on the issue of liability, Kantor testified on March 8, 2021, in sum and substance, that the accident occurred on November 28, 2019. He was operating a 2017 Mercedes C class Coupe. He was coming from the gym and headed home. He recalled that the accident occurred on Thanksgiving Day. He was proceeding straight on Broadway for approximately eight to ten minutes, and, the accident occurred near the intersection of Broadway and Mann Place The weather was clear. He testified that prior to the incident, he was traveling between 25 and 30 miles per hour, and that the speed limit in the area was 30 miles per hour. The first time he saw the other vehicle was at the time of impact, and that the other vehicle came into contact with the right side, rear tire and rear quarter panel of his car. At the time of the occurrence he was wearing his seatbelt. After the impact, Kantor stated that the rear of his vehicle was pushed to the double-yellow line in the street, almost to oncoming traffic. The other vehicle was described by him as a black Toyota Camry. Kantor was shown an image which he stated he recalled, and that the other vehicle that hit him was coming out of a driveway, but he did not know the address where the car was exiting. He testified that the address where the other car was exiting the driveway is contained in the police report. Kantor also testified about his injuries and medical treatment.

Deposition Testimony of Miriam Alyeshmerni

Alyeshmerni gave sworn testimony in this matter on May 13, 2021. She testified that the accident occurred on November 28, 2019. She was operating a 2017 Toyota Camry which is owned by her parents, which she testified that she was driving with their permission. She resides in Arizona and at the time of the occurrence was driving with a valid driver's license from the State of Arizona, and the Toyota Camry she was driving is also registered and insured in the State of Arizona. She testified that she was temporarily staying at an address in Lawrence, New York while she was attending college.

Alyeshmerni was shown a copy of a MV-104 for identification. She testified that she recognized the document, and that she had completed it. According to Alyeshmerni, prior to the incident, she was pulling straight out of the driveway and before she proceeded, she looked to her left, and there were "a lot of cars parked in front of the house." (p. 18 lines 14-24). The accident occurred on Broadway, and she stated there was a portion of the street she could not view as she was exiting due to the parked cars. As she was exiting she saw five to ten cars on Broadway pass in front of her. When she pulled her vehicle out of the driveway her view was still partially obstructed by the cars in front of her home. She intended to exit the driveway and make a left turn, and did not see the other vehicle prior to the contact. The front part of he vehicle came into contact with the other vehicle's back wheel. She recalled apologizing to the person she had the accident with. Alyeshmerni testified that she told her parents that she was pulling out of the driveway and hit the car.

Law and Application

"[T]he 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 demonstrate the absence of any material issues of fact" (Ayotte v Gervasio, 81 N.Y.2d 1062, 1063 [1993], citing Alvarez v Prospect Hospital, 68 N.Y.2d 320 [1986]). Once the proponent demonstrates a prima facie case, the burden then shifts to the party opposing the motion to produce evidentiary proof, in admissible form, sufficient to establish the existence of a material issue of fact requiring a trial of the action (Zuckerman v City of New York 49 N.Y.2d 557 [1980]). Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see Gilbert Frank Corp. v. Federal Ins Co., 70 N.Y.2d 966 [1988]; Winegrad v. New York Med. Ctr., 64 N.Y.2d 851 [1985]). Summary judgment "should not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility" (Collado v Jiacono, 126 A.D.3d 927 [2d Dept 2014]), citing Scott v Long Is. Power Auth., 294 A.D.2d 348, 348 [2d Dept 2002]; see Chimbo v Bolivar, 142 A.D.3d 944 [2d Dept 2016]; Bravo v Vargas, 113 A.D.3d 579 [2d Dept 2014]). As summary judgment is a drastic remedy, it should not be granted where there is doubt about the existence of any issues (Sillman v Twentieth Century-Fox Film Corp., 3 N.Y.2d 395 [1957]). To be entitled to partial summary judgment a plaintiff does not bear the ...burden of establishing... the absence of his or her own comparative fault" (Rodriguez v City of New...