Ozgider v. McGovern

• Court: New York Supreme Court
• Writing for the Court: JOSEPH A. SANTORELLI, JUDGE
• Citation: Ozgider v. McGovern, 2019 NY Slip Op 34499(U), Index 613799/2018 (N.Y. Sup. Ct. May 01, 2019)
• Decision Date: 01 May 2019
• Docket Number: Index 613799/2018
• Parties: FATMA OZGIDER and BULENT T. OZGIDER, Plaintiffs, v. DAVID R. MCGOVERN, JR., Defendant. Mot. Seq. # 01 - MD, # 02 - MD

2019 NY Slip Op 34499(U)

FATMA OZGIDER and BULENT T. OZGIDER, Plaintiffs, v. DAVID R. MCGOVERN, JR., Defendant.

Mot. Seq. # 01 - MD, # 02 - MD

Index No. 613799/2018

Supreme Court, Suffolk County

May 1, 2019

Unpublished Opinion

MOTION DATE 1-29-19

SUBMIT DATE 4-18-19

EWALL & EWALL Attorneys for Plaintiffs

RICHARD T. LAD & ASSOCIATES Attorneys for Defendant

PRESENT Hon. JOSEPH A SANTORELLI JUDGE

JOSEPH A. SANTORELLI, JUDGE

Upon the following papers numbered 1 - 41 read on this motion for summary judgment; Notice of Motion/ Order to Show Cause and supporting papers; Notice of Cross Motion and supporting papers 7 - 30; Answering Affidavits and supporting papers 31 - 37; Replying Affidavits and supporting papers 38 - 41 Other_, (and after hearing Counsel in Support and opposed to the motion) it is, The defendant seeks an order pursuant to CPLR 3212 granting summary judgment and dismissing the complain.. The plaintiffs oppose this application and cross move for an order granting them summary judgment on the issue of liability.

CPLR 93212(b) states that a motion for summary judgment "shall be supported by affidavit by a copy of the pleadings and by other available proof, such as depositions and written admission" If an attorney lacks personal knowledge of the events giving rise to the cause of action or defense his ancillary affidavit, repeating the allegations or the pleadings, without setting forth evidential facts cannot support or defeat a motion by summary judgment (Olan v Farrell Lines; Inc. 105 A.D.2d 653 481 N.Y.S.2d 370 (1st Dept., 1984; aff d 64 N.Y.2d 1092, 489 N.Y.S.2d 884 (1985)- Spearman v Times Square Stores Corp., 96 A.D.2d 552 465 N.Y.S.2d 230 (2nd Dept., 1983); Weinstein Korn-Miller New York Civil Practice Sec. 3212.09)).

The 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 eliminate any material issues of fact from the case (Friends of Animass v Associated Fur Mfrs,, 46 N.Y.2d 1065 416 N.Y.S.2d 790 [1979» To grant summary judgment it must clearly appear that no material and triable issue of fact is presented (Sillman v Twentieth Century-Fox Film Corporation, 3 NY2~ 395 165 NYS~d 498 [19571) Once such proof has been offered, the burden then shifts to the opposing party who in order to defeat the motion for summary judgment must proffer evidence in admissible form and must "show facts sufficient to require a trial of any issue of fact" CPLR3212 [b\ Gilbert Frank Corn v Federal Insurance Co., 70 N.Y.2d 966, 525 N.Y.S.2d 793, 520 N.E.2d 512 [19881 Zuckerman v City of New York 49 N.Y.2d 557, 427 N.Y.S.2d 595 [1980]). The opposing party must assemble lay bare and reveal his proof in order to establish that the matters set forth in his pleadings are real and capable of being established (Castro v Liberty Bus Co., 79 A.D.2d 1014, 435 N.Y.S.2d 340 [2d Dept 1981]). Furthermore, the evidence submitted in connection with a motion for summary judgment should be viewed in the light most favorable to the party opposing the motion (Robinson v Strong Memorial Hospital, 98 A.D.2d 976, 470 N.Y.S.2d 239 [4th Dept 1983]).

On a motion for summary judgment the court is not to determine credibility, but whether there exists a factual issue (see S.J. Capelin Associates v Globe Mfg. Corp., 34 N.Y.2d 338, 357 N.Y.S.2d 478, 313 N.E.2d 776 [1974]). However, the court must also determine whether the factual issues presented are genuine or unsubstantiated (Prunty v Kettie's Bum Steer, 163 A.D.2d 595, 559 N.Y.S.2d 354 [2d Dept 1990]). If the issue claimed to exist is not genuine but is feigned and there is nothing to be tried, then summary judgment should be granted (Prunty v Kellie's Bum Steer, supra, citing Glick & Dolleck v Tri-Pac Export Corp., 22 N.Y.2d 439, 293 N.Y.S.2d 93, 239 N.E.2d 725 [1968]; Columbus Trust Co. v Campolo, 110 A.D.2d 616, 487 N.Y.S.2d 105 (2d Dept 1985], affd, 66 N.Y.2d 701, 496 N.Y.S.2d 425, 487 N.E.2d 282).

The plaintiffs commenced this action to recover damages for personal injuries sustained as a result of a motor vehicle accident that occurred on October 11, 2016. Plaintiff Fatma Ozgider alleges that she was operating a motor vehicle, which was owned by plaintiff Bulent T. Ozgider, traveling on Little Plains Road near its intersection with Green Hill Lane, Town of Huntington, Suffolk County, New York, when defendant, David R. McGovern, Jr., parked his landscaping truck and trailer within the travel portion of the roadway. She attempted to drive past the truck and trailer when a vehicle approached from the opposite direction causing her to have to tum back toward her lane and collide with the trailer attached to the defendant's truck. Defendant contends that he parked his truck and trailer in the eastbound shoulder of Little Plains Road and placed a safety cone behind the truck and trailer. He was engaged in landscaping and states that when he returned to his vehicle he observed "4-5 police vehicles parked on the street in the area of my truck. .. [ and] observed a 2004 BMW ... stopped in the bushes on the right side of the roadway and in front of my truck ... The cone that I had placed behind my truck was stuck in the front bumper of the 2004 BMW." The plaintiffs contend that the landscape truck_ was parked on the roadway "straddling the white line" and that they "blocked almost half of the eastbound lane". They further allege that just east of the location where the defendant was parked was "over the ridge and· around a blind curve". Plaintiff Fatma Ozgider claims that "as I carefully drove next to the truck and trailer, a car approached from the east from around the blind curve ... I realized I would not have time to clear the truck and I turned back to the right." Discovery in this action has not been completed. The defendant and plaintiffs now move for summary judgment.

In Mastrogiacomo v Geoghan, 129 A.D.3d 1035, 1037 [2d Dept 2015], the Court held that

"[O]wners of improperly parked cars may be held liable to plaintiffs injured by negligent drivers of other

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