Ortiz v. Witthuhn

• Decision Date: 22 August 2018
• Docket Number: Index 603498-17
• Citation: 2018 NY Slip Op 34129 (U)
• Parties: NERY J. ORTIZ, Plaintiff, v. STEVEN R. WITTHUHN and GREGORY S. WITTHUHN, Defendants.
• Court: New York Supreme Court

2018 NY Slip Op 34129(U)

NERY J. ORTIZ, Plaintiff,
v.
STEVEN R. WITTHUHN and GREGORY S. WITTHUHN, Defendants.

Index No. 603498-17

Supreme Court, Suffolk County

August 22, 2018

Unpublished Opinion

Submission Date: 6/29/18

Attorney for Plaintiff David J. Raimondo & Associates

Attorneys for defendant Dodge & Monroy, P.C.

Present: Hon. DEN1SE F. MOLIA, Justice

HON DENISE F. MOLIA A..J.S.C.

Upon the following papers filed and considered relative to this matter:

Notice of Motion dated January 22, 2018; Affirmation in Support dated January 22, 2018; Exhibits A through G annexed thereto; Affirmation in Opposition dated May 1, 2018; Affidavit in Opposition dated May 10, 2018; Reply Affirmation dated May 31, 2018; Exhibits A through C annexed thereto; and upon due deliberation; it is

ORDERED, that the motion by plaintiff, pursuant to CPLR 3212, for an Order directing the entry of summary judgment in favor of plaintiff and against the defendants on the issue of liability, is granted.

The instant action was commenced to recover damages for personal injuries allegedly sustained by the plaintiff in a four vehicle rear end chain collision which occurred on May 7, 2016, in which the defendant Gregory Witthuhn was the operator of the fourth vehicle in the chain. In support of her motion for summary judgment, Nery J. Ortiz, the operator of the third vehicle in the chain has submitted an affidavit dated January 22, 2018, which states in pertinent part:

"On May 7"', 2016, at approximately 11:50 a.m., I was a seat belted driver, operating my 2012 Honda northbound on Larkfield Drive, in the Town of Huntington County of Suffolk, and State of New York

At the above date, time and place, my vehicle was at a complete stop in traffic on Larkfield Drive for approximately two minutes, when I

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was struck from behind by pickup truck operated by defendant, Gregory S. Witthuhn, and owned by defendant, Steven R. Witthuhn. As a direct result of defendant Gregory S. Witthuhn's impact to the rear of my stopped vehicle, my vehicle was forced into the rear of the stopped vehicle in front of me, operator Maureen Rukin, who was then forced into the stopped vehicle in front of her, operator Maryann Avella.

At the time of the collision, my vehicle had properly functioning brake lights and tail lights. It was not raining, and the roads were dry.

Prior to the collision, the defendant, Gregory S. Witthuhn, "quickly looked down" inside his vehicle, and foiled to observe my vehicle completely stopped in traffic. When defendant looked back up at the road, he could not stop his vehicle before striking me, causing the defendant to collide with the rear of my vehicle.

Defendant, Gregory S. Witthuhn, offered the above information about looking down and taking his eyes off the road to the responding police officer. Defendant was then cited for "driver inattention/distraction" and "unsafe speed" in the Certified Police Report by the responding officer."

The certified MV-104A Report prepared by Police Officer Luis Abreu dated May 7, 2016, confirms that the drivers of the first three vehicles all stated that they had been stopped in traffic when the plaintiffs vehicle (third in line) was struck in the rear by the vehicle operated by defendant Gregory S. Witthuhn. The Report also reported said defendant's statement that "he quickly looked down and when he looked up he struck V#3."

In opposition to the motion, the defendant Gregory S. Witthuhn has submitted an affidavit in which he now directly contradicts the prior statements and admissions he made to Police Officer Abreu at the time of the accident. In his affidavit dated May 10, 2018 Witthuhn states, in pertinent part:

"Immediately prior to the happening of the accident, I observed a certain 2007 Chrysler motor vehicle stopped ahead of me in the northbound lane of travel on Larkfield Road. It is my understanding that this vehicle was attempting to make a right turn into a parking lot.

I then observed a certain 2015 Mercedes, travelling immediately behind the aforementioned 2007 Chrysler, in the same lane of travel. Suddenly, and without warning, this vehicle came to an abrupt stop and struck the 2007 Chrysler.

Suddenly thereafter, and without warning, a certain 2012 Hondo motor vehicle, travelling immediately behind the aforementioned 2015 Mercedes, and immediately in front of my own vehicle, was caused to come to an abrupt stop and strike the rear of the 2015 Mercedes.

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It is my understanding that the Plaintiff in

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