Policart v. Wheels LT

• Decision Date: 11 May 2022
• Docket Number: Mot. Seq. No. 1,Index No. 503500/2021
• Citation: 2022 NY Slip Op 31640 (U)
• Parties: STEVE J. POLICART, Plaintiff, v. WHEELS LT et al., Defendants,
• Court: New York Supreme Court

2022 NY Slip Op 31640(U)

STEVE J. POLICART, Plaintiff,
v.
WHEELS LT et al., Defendants,

Index No. 503500/2021, Mot. Seq. No. 1

Supreme Court, Kings County

May 11, 2022

Unpublished Opinion

PRESENT: HON. RICHARD VELASQUEZ Justice.

DECISION AND ORDER

Richard Velasquez Judge:

The following papers NYSCEF Doc #'s 10 to 23 read on this motion:

Papers NYSCEF DOC NO.'s

Notice of Motion/Order to Show Cause' Affidavits (Affirmations) Annexed __10-18

Opposing Affidavits (Affirmations)__ 20-22

Reply Affidavits__ 23

After having heard Oral Argument on MAY 11, 2022, and upon review of the foregoing submissions herein the court finds as follows:

Plaintiff moves pursuant to 3212 for summary judgment on the issue of liability. (MS#1). Defendant opposes the same.

ANALYSIS

It is well established that a moving party for summary judgment must make a prima facie showing of entitlement as a matter of law, offering sufficient evidence to demonstrate the absence of any material issue of fact. Winegrad v. New York Univ. Med. Center, 64 N.Y.2d 851, 853 (1985). Once there is a prima facie showing, the burden shifts to the party

1

opposing the motion for summary judgment to produce evidentiary proof in admissible form to establish material issues of fact, which require a trial of the action. Zuckerman v. City of New York, 49 N.Y.2d 557 (1980); Alvarez v. Prospect Hosp., 68 N.Y.2d 320 (1986). However, where the moving party fails to make a prima facie showing, the motion must be denied regardless of the sufficiency of the opposing party's papers. A motion for summary judgment will be granted "if, upon ail the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing the judgment in favor of any party". CPLR 3212 (b). The "motion shall be denied if any party shall show facts sufficient to require a trial of any issue of fact." Id.

It is well established that "where a driver enters an intersection with the right-of-way....and it is' undisputed that the other vehicle entered the intersection from a perpendicular side street which was controlled by a stop sign and collided with the' side of the other vehicle that had the right-of-way...under no view of these facts could the I driver with the right of way be found to have acted negligently..." (see Perez v Brux Cab Corp., 251 A.D.2d 157 [1998]; Namisnak v Martin, 244 A.D.2d 258, 260 [1997]); quoting Rivera v. Water Boy, Inc., 144 A.D.3d 884, 884-85, 41 N.Y.S.3d 545 (NY A.D. 2016).

In the present case, the plaintiff established their prima facie entitlement to judgment as a matter of law on the issue of liability by demonstrating that the defendant, who either failed to stop at a stop sign or, upon stopping, failed to yield the right of way to the plaintiffs vehicle, was the sole proximate cause of the accident (see Vehicle and Traffic Law § 1142[a]; Bongiovi v. Hoffman, 18 A.D.3d 686, 687, 795 N.Y.S.2d 354; Willis v. Fink, 7 A.D.3d 519, 520, 775 N.Y.S.2d 587; cf. Rossani...