Opman v. Pollio

• Decision Date: 05 November 2018
• Docket Number: Index 619040/2016
• Court: New York Supreme Court
• Parties: RACHELLE OPMAN & JOHN OPMAN, Plaintiff, v. RONALD POLLIO, Defendant. Mot Seq No. 001 MG

2018 NY Slip Op 34134(U)

RACHELLE OPMAN & JOHN OPMAN, Plaintiff,
v.
RONALD POLLIO, Defendant.

Mot Seq No. 001 MG

Index No. 619040/2016

Supreme Court, Suffolk County

November 5, 2018

Unpublished Opinion

Motion Submit Date: 03/01/18

PLAINTIFF'S COUNSEL:

Parker Waichman, LLP

By: Denny Tang, Esq.

DEFENDANT'S COUNSEL:

Russo & Tambasco

By: Steven R. Kartzinel, Esq.

WILLIAM G. FORD, J.S.C.

On plaintiffs motion for partial summary judgment on liability pursuant to CPLR 3212. the following was considered: Notice of Motion & Affirmation in Support dated January 19. 2018 and supporting papers: Affirmation in Opposition dated February 27. 2018; Plaintiffs Reply Affirmation in Further Support dated March 1, 2018; and upon due deliberation and full consideration, it is

ORDERED that plaintiffs motion seeking partial summary judgment as to liability pursuant to CPLR 3212 against defendant is granted as follows; and it is further

ORDERED that plaintiffs counsel is hereby directed to serve a copy of this decision and order with notice of entry on counsel for all parties by overnight mail, return receipt requested forthwith.

FACTUAL BACKGROUND & PROCEDURAL POSTURE

Plaintiffs Rachelle & John Opman brought this personal injury negligence action against defendant arising out of a motor vehicle collision which occurred on Friday, June 13, 2014 at the intersection of Veterans Memorial Highway and the Long Island Expressway South Service Road in the Town of Islip, Suffolk County, New York.

This action commenced with plaintiff electronically filing a summons and complaint against defendant seeking recovery of damages for alleged personal injury premised on defendant's alleged negligence as a proximate cause of the underlying motor vehicle collision on November 23, 2016. Defendant joined issue filing an answer to the complaint January 22, 2017. Plaintiff amplified her pleadings filing a verified bill of particulars on August 1, 2017. Discovery in this matter is ongoing. Presently before the Court is plaintiffs opposed motion for partial summary judgment on liability against the defendant, which is resolved as follows.

1

In support of her application, plaintiff submits a copy of the pleadings, an affidavit in support dated January 20, 2017, a certified copy of the transcript of her deposition held on November 2, 2017; as well as an uncertified copy of the police accident investigation report.

At her pretrial deposition held on November 2, 2017, plaintiff testified that she was involved in a collision with a vehicle operated by defendant on Friday, June 13, 2014 at approximately 4:00 p.m. She recalled it was a dry clear day. Plaintiff was on her commute home from work in medium to heavy traffic on Veterans Memorial Highway, in the outermost left-hand turn lane, with the intention of turning left onto the Long Island Expressway South Service Road. She was stopped in traffic at a red light-controlled intersection, the fourth vehicle in traffic for approximately a minute when she felt a medium impact to the rear of her vehicle, a Lexus convertible. She did not observe defendant's vehicle prior to impact, nor did she recall hearing squealing/screeching of tires or horns blaring. Immediately after impact, she observed damage to the rear bumper of her vehicle. At the time of impact, plaintiffs right foot was on her brake pedal.

Based on this presentation, plaintiff presently moves pursuant to CPLR 3212 seeking partial summary judgment on liability based upon the rear-end collision in this case, arguing that her affidavit supports a determination as a matter of law that the defendant is liable for the incident plaintiff alleges as proximate cause for her damages

STANDARD OF REVIEW

It is well settled that summary judgment is a drastic remedy which should not be granted when there is doubt as to the existence of a triable issue of fact. Where, however, one seeking summary judgment tenders evidentiary proof in admissible form establishing its defense sufficiently to warrant the court as a matter of law in directing judgment in its favor, the burden falls upon the opposing party to show, also by evidentiary proof in admissible form, that there is a material issue of fact requiring a trial of the matter (see Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595 [1980]). The evidence presented on a motion for summary judgment must be scrutinized in the light most favorable to the party opposing the motion (see Goldstein v. Monroe County, 77 A.D.2d 232, 236, 432 N.Y.S.2d 966 [1980]).

The proponent on a motion of summary judgment 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 (Alvarez v Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923 [1986]; Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 487 N.Y.S.2d 316 [1985];]; Zuckerman v City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595 [1980]).

If the moving party fails in meeting this burden, the motion must be denied. If, however, this burden is satisfied, then the burden shifts to the opposing party to establish the existence of material issues of fact requiring a trial (see Zuckerman, supra). The function of the court in determining a motion for summary judgment is issue finding, not issue determination (Pantote Big Alpha Foods, Inc. v Schefman, 121 A.D.2d 295, 503 N.Y.S.2d 58 [1st Dept. 1986]).

The burden then shifts to the party 2 of 7 motion which must produce evidentiary proof in admissible form sufficient to require a trial of the material issues of fact (Roth v Barreto, 289A.D.2d 557. 735 N.Y.S.2d 197 T2d Dent. 20011: Rebecchi v Whitmore, 172 A.D.2d 600, 568 N.Y.S.2d 423 [2d Dept. 1991];

2

O'Neill v Fishkill, 134 A.D.2d 487, 521 N.Y.S.2d 272 [2d Dept. 1987]). The law is well-established that summary judgment is a drastic remedy to be granted only when there is clearly no genuine issue of fact to be presented at trial (see Andre v Pomeroy, 35 N.Y.2d 361, 362 N.Y.S.2d 131 [1974]; Benincasa v Garrubo, 141 A.D.2d 636, 529 N.Y.S.2d 797 [2d Dept. 1988]).

A rear-end collision with a stopped or stopping vehicle creates a prima facie case of negligence with respect to the operator of the moving vehicle and imposes a duty on the operator to rebut the inference of negligence by providing a non-negligent explanation for the collision" (Mulhern v Gregory, 161 A.D.3d 881, 883, 75 N.Y.S.3d 592, 594 [2d Dept 2018]; Comas-Bourne v City of New York, 146 A.D.3d 855, 856, 45 N.Y.S.3d 182, 183 [2d Dept 2017]; Whelan v Sutherland, 128 A.D.3d 1055, 1056, 9 N.Y.S.3d 639, 640 [2d Dept 2015]; Tutrani v. County of Suffolk, 10 N.Y.3d 906, 908; Gutierrez v. Trillium USA, LLC, 111 A.D.3d 669, 670-671, 974 N.Y.S.2d 563; Pollard v. Independent Beauty & Barber Supply Co., 94 A.D.3d 845, 846, 942 N.Y.S.2d 360; Perez v Roberts, 91 A.D.3d 620, 621, 936 N.Y.S.2d 259, 260 [2d Dept 2012]; Le Grand v Silberstein, 123 A.D.3d 773, 774, 999 N.Y.S.2d 96, 97 [2d Dept 2014]).

The claim that the lead vehicle made a sudden stop, standing alone, is insufficient to rebut the presumption of negligence on the part of the following vehicle (see Zdenek v Safety Consultants, Inc., 63 A.D.3d 918, 918, 883 N.Y.S.2d 57, 58 [2d Dept 2009]; Kastritsios v. Marcello, 84 A.D.3d 1174, 923 N.Y.S.2d 863; Franco v. Breceus, 70 A.D.3d 767, 895 N.Y.S.2d 152; Mallen v. Su, 67 A.D.3d 974, 890 N.Y.S.2d 79; Rainford v. Han, 18 A.D.3d 638, 795 N.Y.S.2d 645; Russ v. Investech Sees., 6 A.D.3d 602, 775 N.Y.S.2d 867; Xian Hong Pan v Buglione, 101 A.D.3d 706, 707, 955 N.Y.S.2d 375, 377 [2d Dept 2012]). However, "[i]f the operator cannot come forward with any evidence to rebut the inference of negligence, the plaintiff may properly be awarded judgment as a matter of law" (Barile v. Lazzarini, 222 A.D.2d 635, 636, 635 N.Y.S.2d 694; D'Agostino v YRC, Inc., 120 A.D.3d 1291, 1292, 992 N.Y.S.2d 358, 359 [2d Dept 2014]).

"When the driver of an automobile approaches another automobile from the rear, he or she is bound to maintain a reasonably safe rate of speed and control over his vehicle, and to exercise reasonable care to avoid colliding with the other vehicle" (Comas-Bourne v City of New York, 146 A.D.3d 855, 856, 45 N.Y.S.3d 182, 183 [2d Dept 2017]). Drivers have a duty to see what should be seen and to exercise reasonable care under the circumstances to avoid an accident (Williams v Spencer-Hall, 113 A.D.3d 759, 760, 979N.Y.S.2d 157, 159 [2d Dept 2014]). a rear-end collision with a stopped vehicle creates a prima facie case of liability with respect to the operator of the rearmost vehicle, thereby requiring that...