McCauley v. Sik Kin Lo

• Decision Date: 10 January 2017
• Docket Number: Index No. 608696/2015,Motion Seq. Nos. 001:MD,002 CROSS-MOTION: XMD
• Citation: 2017 NY Slip Op 33526 (U)
• Parties: CATHERINE E. McCAULEY, Plaintiff, v. SIK KIN LO, JOHNNY LO and SUSANNE M. NIGRO, Defendants.
• Court: New York Supreme Court

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2017 NY Slip Op 33526(U)

CATHERINE E. McCAULEY, Plaintiff,
v.
SIK KIN LO, JOHNNY LO and SUSANNE M. NIGRO, Defendants.

Index No. 608696/2015, Motion Seq. Nos. 001:MD, 002 CROSS-MOTION: XMD

Supreme Court, Suffolk County

January 10, 2017

Unpublished Opinion

ORIG. RETURN DATES: MARCH 28, 2016, MARCH 31, 2016

FINAL SUBMISSION DATE: APRIL 28, 2016

PLTF'S/PET'S ATTORNEY: LAW OFFICE OF THOMAS TONA, PC.

ATTORNEY FOR DEFENDANTS SIK KIN LP AND JOHNNY LP: MARTYN, TOHER, MARTYN & ROSSI

ATTORNEY FOR DEFENDANT SUSANNE M. NIGRO: LAW OFFICE OF ANDREA G. SAWYERS

SHORT FORM ORDER

HON. JOSEPH FARNETI Acting Justice

Upon the following papers numbered 1 to 11 read on this motion and cross-motion FOR SUMMARY JUDGMENT.

Notice of Motion and supporting papers 1-3; Notice of Cross-motion and supporting papers 4-6: Affirmation in Opposition and supporting papers 7. 8: Reply Affirmation 9; Reply Affirmation and Affirmation in Opposition 10; Affirmation in Reply to Co-Defendant's Opposition 11; it is,

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ORDERED that this motion (seq. #001) by defendants SIK KIN LO and JOHNNY LO ("Lo defendants") for an Order, pursuant to CPLR 3212, granting summary judgment dismissing the complaint of plaintiff CATHERINE E. McCAULEY and any and all cross-claims against the Lo defendants on the grounds that the Lo defendants bear no liability for the subject accident, is hereby DENIED for the reasons set forth hereinafter; and it is further

ORDERED that this cross-motion (seq. #002) by defendant SUSANNE M. NIGRO ("Nigro") for an Order, pursuant to CPLR 3212, granting summary judgment to Nigro dismissing plaintiff's complaint and any and all cross-claims against Nigro on the grounds that there are no triable issues of fact against Nigro, is hereby DENIED for the reasons set forth hereinafter.

This is an action to recover damages for personal injuries allegedly sustained by plaintiff in a three-car motor vehicle accident that occurred on April 20, 2014, on westbound Route 25 at or near its intersection with Arnold Drive, in the Town of Brookhaven, State of New York. In her complaint, plaintiff alleges that defendants were negligent in the operation of their motor vehicles, causing their vehicles to collide with plaintiff's vehicle. The Lo defendants allege that their vehicle was slowing down for a yellow light on Route 25 when Nigro's vehicle struck the rear of their vehicle. Plaintiff, in the rear-most vehicle, collided with the rear of Nigro's vehicle.

Plaintiff commenced this action by the filing of a Summons and Verified Complaint dated July 21, 2015. The Lo defendants served a Verified Answer with cross-claims dated September 8, 2015. Nigro served a Verified Answer with cross-claim dated January 7, 2016.

The Lo defendants have now filed the instant motion for summary judgment to dismiss plaintiff's complaint as asserted against them, arguing that the Lo defendants bear no responsibility for the subject accident because their vehicle was hit in the rear. Nigro has filed the instant cross-motion for summary judgment to dismiss plaintiff's complaint as asserted against Nigro, similarly arguing that Nigro bears no responsibility for the subject accident because her vehicle was hit in the rear by plaintiff's vehicle.

On a motion for summary judgment the Court's function is to determine whether issues of fact exist not to resolve issues of fact or to determine

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matters of credibility (see Sillman v Twentieth Century-Fox Film Corp., 3 N.Y.2d 395 [1957]; Tunison v D.J. Stapleton, Inc., 43 A.D.3d 910 [2007]; Kolivas v Kirchoff, 14 A.D.3d 493 [2005]). Therefore, in determining the motion for summary judgment, the facts alleged by the nonmoving party and all inferences that may be drawn are to be accepted as true (see Doize v Holiday Inn Ronkonkoma, 6 A.D.3d 573 [2004]; Roth v Barreto,...