Rebecchi v. Whitmore

• Citation: 172 A.D.2d 600,568 N.Y.S.2d 423
• Parties: Lorraine REBECCHI, Appellant, v. Kenneth WHITMORE, et al., Respondents.
• Decision Date: 08 April 1991
• Court: New York Supreme Court Appellate Division

Page 423

568 N.Y.S.2d 423

172 A.D.2d 600

Lorraine REBECCHI, Appellant, v. Kenneth WHITMORE, et al., Respondents.

Supreme Court, Appellate Division Second Department.

April 8, 1991.

Borda, Wallace & Witty, Bayshore (Emanuel I. Witty, of counsel), for appellant.

Pizzitola & Inzerillo, Smithtown (Scott M. Cacciabaudo, of counsel), for respondents.

Before MANGANO, P.J., and BROWN, SULLIVAN, HARWOOD and MILLER, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Namm, J.), entered september 6, 1989, which denied her motion for partial summary judgment on the issue of liability.

ORDERED that the order is reversed, on the law, with costs, the motion is granted, and the matter is remitted to the Supreme Court, Suffolk County, for a trial on the issue of damages.

On a motion for summary judgment the movant must establish his or her cause of action or defense sufficiently to warrant a court directing judgment in its favor as a matter of law (see, Frank Corp. v. Federal Ins. Co., 70 N.Y.2d 966, 525 N.Y.S.2d 793, 520 N.E.2d 512; Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572). "The party opposing the motion, on the other hand, must produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact" (Frank Corp. v. Federal Ins. Co. supra, 70 N.Y.2d at 967, 525 N.Y.S.2d 793, 520 N.E.2d 512; GTF Mktg. v. Colonial Aluminum Sales, 66 N.Y.2d 965, 498 N.Y.S.2d 786, 489 N.E.2d 755). Mere conclusions or unsubstantiated allegations are insufficient to raise a triable issue (see, Frank Corp. v. Federal Ins. Co., supra).

Further, to grant summary judgment, it must clearly appear that no material triable issue of fact is presented. The burden on the court deciding this type of motion is not to resolve issues of fact or determine matters of credibility but merely to determine whether such issues exist (see, Barr v. County of Albany, 50 N.Y.2d 247, 428 N.Y.S.2d 665, 406 N.E.2d 481; Daliendo v. Johnson, 147 A.D.2d 312, 317, 543 N.Y.S.2d 987).

Applying these principles to this case, the proof submitted in support of the motion for summary judgment on the issue of fault, viz., the affidavit from the plaintiff, stating that her vehicle was at a complete stop for approximately 30 seconds when it was struck in the rear by the vehicle owned by the corporate defendant and driven by the defendant Kenneth Whitmore, was sufficient to establish as a matter of law that the defendants were solely at fault for this occurrence see, Daliendo v. Johnson, supra, at 321, 543 N.Y.S.2d 987; Dickens v. Merritt, 123 A.D.2d 738, 739, 507 N.Y.S.2d 210; Silberman v. Surrey...