Poon v. Nisanov

• Decision Date: 13 June 2018
• Docket Number: 2016–06641,Index No. 10745/13,2016–00147
• Citation: 162 A.D.3d 804,79 N.Y.S.3d 227
• Parties: Samuel POON, plaintiff-respondent, v. Rubin NISANOV, et al., appellants, Maribel P. Rodriguez, et al., defendants-respondents.
• Court: New York Supreme Court — Appellate Division

162 A.D.3d 804

79 N.Y.S.3d 227

Samuel POON, plaintiff-respondent,

v. Rubin NISANOV, et al., appellants,Maribel P. Rodriguez, et al., defendants-respondents.

2016–00147

2016–06641

Index No. 10745/13

Supreme Court, Appellate Division, Second Department, New York.

Argued—November 16, 2017

June 13, 2018

Karen L. Lawrence (Sweetbaum & Sweetbaum, Lake Success, N.Y. [Joel A. Sweetbaum and Marshall D. Sweetbaum ], of counsel), for appellants.

Caesar and Napoli, P.C., New York, N.Y. (Ernest A. Spivak of counsel), for plaintiff-respondent.

Mendolia & Stenz (Russo Apoznanski & Tambasco, Melville, N.Y. [Susan J. Mitola], of counsel), for defendants-respondents.

REINALDO E. RIVERA, J.P., JEFFREY A. COHEN, ROBERT J. MILLER, BETSY BARROS, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the defendants Rubin Nisanov and Dayan Nisanov appeal from (1) an order of the Supreme Court, Queens County (Duane A. Hart, J.), entered October 28, 2015, and (2) an order of the same court entered November 2, 2015. The order entered October 28, 2015, insofar as appealed from, denied that branch of the cross motion of the defendants Rubin Nisanov and Dayan Nisanov which was for summary judgment dismissing the complaint and all cross claims insofar as asserted against them on the ground that they were not at fault in the happening of the subject accident. The order entered November 2, 2015, insofar as appealed from, granted those branches of the plaintiff's motion which were for summary judgment on the issue of liability on the complaint insofar as asserted against the defendants Rubin Nisanov and Dayan Nisanov and dismissing the affirmative defense of those defendants which alleged that the plaintiff was comparatively negligent.

ORDERED that the order entered October 28, 2015, is affirmed insofar as appealed from, without costs or disbursements; and it is further,ORDERED that the order entered November 2, 2015, is modified, on the law, by deleting the provision thereof granting that branch of the plaintiff's motion which was for summary judgmenton the issue of liability on the complaint insofar as asserted against the defendants Rubin Nisanov and Dayan Nisanov, and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

On June 15, 2011, at approximately 4:24 p.m., the plaintiff was driving on the entrance ramp to the Brooklyn–Queens Expressway near the intersection of McGuiness Boulevard and Meeker Avenue, when his vehicle allegedly was struck in the rear by a vehicle operated by the defendant Angel Ramos and owned by the defendants Jennie Rodriguez and Maribel P. Rodriguez (hereinafter collectively the Ramos defendants). A vehicle owned by the defendant Rubin Nisanov and operated by the defendant Dayan Nisanov (hereinafter together the Nisanov defendants) allegedly was traveling on the shoulder of the same entrance ramp and allegedly contributed to the collision between the plaintiff's vehicle and the Ramos defendants' vehicle.

The plaintiff commenced this action claiming negligence. The Nisanov defendants interposed an answer which included, inter alia, an affirmative defense alleging that the plaintiff was comparatively negligent in the happening of the accident. The plaintiff subsequently moved for, among other relief, summary judgment on the issue of liability on the complaint insofar as asserted against the Nisanov defendants and dismissing the affirmative defense of the Nisanov defendants which alleged that the plaintiff was comparatively negligent. The Nisanov defendants cross-moved, inter alia, for summary judgment dismissing the complaint and all cross claims insofar as asserted against them on the ground that they were not at fault in the happening of the accident.

In an order entered October 28, 2015, the Supreme Court, among other things, denied that branch of the Nisanov defendants' cross motion which was for summary judgment dismissing the complaint and all cross claims insofar as asserted against them on the ground that they were not at fault in the happening of the accident. In an order entered November 2, 2015, the court, inter alia, granted those branches of the plaintiff's motion which were for summary judgment on the issue of liability on the complaint insofar as asserted against the Nisanov defendants and dismissing the affirmative defense of the Nisanov defendants alleging comparative negligence. The Nisanov defendants appeal.

With certain limitations not applicable here, "[a]ny party may move for summary judgment in any action" ( CPLR 3212[a] ). "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 admissions" ( CPLR 3212[b] ). The moving party's submissions must show "that there is no defense to the cause of action or that the cause of action or defense has no merit" (id. ). A motion for summary judgment "shall be granted if, upon all 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 judgment in favor of any party" (id. ; see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 ).

A plaintiff moving for summary judgment on a cause of action asserted in a complaint generally has the burden of establishing, prima facie, "all of the essential elements of the cause of action" ( Nunez v. Chase Manhattan Bank, 155 A.D.3d 641, 643, 63 N.Y.S.3d 481 ; see Stukas v. Streiter, 83 A.D.3d 18, 23, 918 N.Y.S.2d 176 ). By contrast, a defendant moving for summary judgment dismissing one of the plaintiff's causes of action may generally sustain his or her prima facie burden "by negating a single essential element" of that cause of action (Nunez v. Chase Manhattan Bank, 155 A.D.3d at 643, 63 N.Y.S.3d 481). To defeat summary judgment, the nonmoving party need only rebut the prima facie showing made by the moving party so as to demonstrate the existence of a triable issue of fact (see Alvarez v. Prospect Hosp., 68 N.Y.2d at 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 ; Stukas v. Streiter, 83 A.D.3d at 23–24, 918 N.Y.S.2d 176 ).

As relevant here, "the elements of a cause of action sounding in negligence are: (1) the existence of a duty on the defendant's part as to the plaintiff; (2) a breach of this duty; and (3) an injury to the plaintiff as a result thereof" ( Stukas v. Streiter, 83 A.D.3d at 23, 918 N.Y.S.2d 176 ). Accordingly, a defendant who moves for summary judgment dismissing a cause of action alleging negligence may sustain his or her initial burden by "establishing, prima facie, that he or she was not at fault in the happening of the subject accident" ( Boulos v. Lerner–Harrington, 124 A.D.3d 709, 709, 2 N.Y.S.3d 526 ; see Estate of Goldstein v. Kingston, 153 A.D.3d 1235, 1236, 61 N.Y.S.3d 123 ; Searless v. Karczewski, 153 A.D.3d 957, 958, 60 N.Y.S.3d 431 ; Victor v. Daley, 150 A.D.3d 1307, 1307, 56 N.Y.S.3d 223 ; Faust v. Gerde, 150 A.D.3d 1204, 1204, 52 N.Y.S.3d 898 ).

Here, in support of that branch of their cross motion which was for summary judgment dismissing the complaint and all cross claims insofar as asserted against them on the ground that they were not at fault in the happening of the accident, the Nisanov defendants principally relied upon the deposition testimony of the plaintiff and Dayan Nisanov. Dayan Nisanov testified that he was driving approximately one car length behind the Ramos defendants' vehicle when that vehicle came in contact with the plaintiff's vehicle. The plaintiff's testimony indicated...