Namisnak v. Martin

• Decision Date: 20 November 1997
• Citation: 244 A.D.2d 258,664 N.Y.S.2d 435
• Parties: , 1997 N.Y. Slip Op. 10,125 Jessica NAMISNAK, etc., et al., Plaintiffs-Respondents, v. Glenn J. MARTIN, et al., Defendants-Appellants, and Michael Namisnak, Defendant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 435

664 N.Y.S.2d 435

244 A.D.2d 258, 1997 N.Y. Slip Op. 10,125

Jessica NAMISNAK, etc., et al., Plaintiffs-Respondents, v. Glenn J. MARTIN, et al., Defendants-Appellants and Michael Namisnak, Defendant-Respondent.

Supreme Court, Appellate Division,

First Department.

Nov. 20, 1997.

Herman M. Goldberg, for Plaintiffs-Respondents.

David Samel, for Defendants-Appellants.

Arthur B. Colligan, for Defendant-Respondent.

Before SULLIVAN, J.P., and ROSENBERGER, WILLIAMS and ANDRIAS, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County (Barbara Kapnick, J.), entered January 6, 1997, denying defendants-appellants' motion for summary judgment in a negligence action arising out of a two-vehicle collision, unanimously reversed, on the law, without costs, and summary judgment granted to defendants-appellants. The Clerk is directed to enter judgment in favor of defendants-appellants dismissing the complaint.

At about 7:00 a.m., on December 2, 1993, defendant-respondent, Michael Namisnak, Sr. ("Michael, Sr."), was driving an automobile in the eastbound lanes of Hempstead Turnpike in Uniondale, Long Island. The passengers were his granddaughter, Jessica (the infant plaintiff), his ex-daughter-in-law, Janet (the plaintiff/mother), his wife Nadia, and his son, Michael ("Michael, Jr."). The automobile collided with a tractor-trailer driven by defendant-appellant, Glenn J. Martin ("Martin"), in the course of his employment with defendant-appellant Blue Line Distributing, Inc. The truck was owned by Penske Truck Leasing Co., which leased it to Blue Line.

The Namisnak automobile drove southbound on Meadowbrook Parkway and turned off at Hempstead Turnpike eastbound. At the end of the exit ramp is a stop sign, immediately followed by the right lane of traffic on the Turnpike. The car went past the stop sign and collided with the rear right side of the truck, which was travelling along the right lane of the Turnpike. Nadia Namisnak was killed and plaintiffs were injured. (Michael, Jr. was also injured and has commenced a separate action against the same defendants.)

At an administrative hearing on May 2, 1994, Administrative Law Judge Leonard S. Margolis found no moving violation on the part of Glenn Martin, and found that Michael Namisnak, Sr. had violated Vehicle & Traffic Law § 1172 by failing to stop at a stop sign.

The subsequent deposition testimony of the surviving passengers revealed some dispute over whether and how long Michael, Sr. had stopped at the stop sign, and whether he had seen the tractor-trailer moving towards them. Janet claimed that he had stopped for a few seconds and then proceeded despite the clearly visible truck approaching them. Michael, Jr. claimed that his father had not stopped at all, but neither had he seen the truck.

Glenn Martin, the truck driver, testified that he was driving at about 35 miles per hour in the right lane when he felt a bump. The speed limit in that lane was 40 miles per hour for trucks. Looking in his right side-view mirror, he saw the car that had collided with him and applied the brake, stopping the truck. He had not seen the car before the impact.

Defendants Martin, Blue Line and Penske moved for summary judgment dismissing the complaint against them. The trial court denied the motion because it believed that triable issues existed as to whether defendant Martin could have avoided the accident. For the following reasons, we reverse this determination and award summary judgment to defendants-appellants.

The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, by offering sufficient evidence to eliminate any material issues of fact (Friends of Animals, Inc. v. Associated Fur Mfrs., 46 N.Y.2d 1065, 1067, 416 N.Y.S.2d 790, 390 N.E.2d 298). Once the movant has made a prima facie case, the opponent must present admissible evidence tending to show the existence of a triable issue in order to defeat the motion. Mere conclusions, expressions of hope, allegations or assertions are insufficient to raise a triable fact issue (Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).

Here, defendant-appellant Martin testified that he did not observe the Namisnaks' car until after it collided with his...