Staskiv v. Shlayan
| Decision Date | 28 October 2015 |
| Docket Number | 2014-10076, Index No. 505126/13. |
| Citation | 18 N.Y.S.3d 686,2015 N.Y. Slip Op. 07830,132 A.D.3d 971 |
| Parties | Mykola STASKIV, plaintiff-respondent, v. Naum SHLAYAN, et al., appellants-respondents, Kwok Chi Tong, respondent-appellant, Angelo Vallejos, et al., defendants-respondents. |
| Court | New York Supreme Court — Appellate Division |
Baker, McEvoy, Morrissey & Moskovits, P.C. (Marjorie E. Bornes, Brooklyn, N.Y., of counsel), for appellants-respondents.
Nancy L. Isserlis, Long Island City, N.Y. (Lawrence R. Miles of counsel), for respondent-appellant.
Lewis Brisbois Bisgaard & Smith, LLP, New York, N.Y. (Meredith Drucker Nolen and Nicholas P. Hurzeler of counsel), for defendants-respondents.
L. PRISCILLA HALL, J.P., SANDRA L. SGROI, JEFFREY A. COHEN, and JOSEPH J. MALTESE, JJ.
In an action to recover damages for personal injuries, the defendants Naum Shlayan and New York VIP Transportation, Inc., appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Schmidt, J.), dated September 3, 2014, as denied their cross motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against them, and the defendant Kwok Chi Tong cross-appeals, as limited by his brief, from so much of the same order as denied his motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against him.
ORDERED that the order is reversed insofar as appealed from, on the law, and the cross motion of the defendants Naum Shlayan and New York VIP Transportation, Inc., for summary judgment dismissing the complaint and all cross claims insofar as asserted against them is granted; and it is further,
ORDERED that the order is affirmed insofar as cross-appealed from; and it is further,ORDERED that one bill of costs is awarded to the defendants Angelo Vallejos and Golden Touch Transportation of N.Y., Inc., payable by the defendant Kwok Chi Tong, and one bill of costs is awarded to the defendants Naum Shlayan and New York VIP Transportation, Inc., payable by the defendants Angelo Vallejos and Golden Touch Transportation of N.Y., Inc.
This action arises from a three-car motor vehicle accident that occurred on the JFK Expressway, near Terminal 1 at Kennedy International Airport. It is undisputed that the defendant Naum Shlayan, operating the lead vehicle, which was owned by the defendant New York VIP Transportation, Inc. (hereinafter VIP), and in which the plaintiff was a passenger, abruptly slowed down and stopped his vehicle when he was cut off by an unidentified vehicle. The defendant Kwok Chi Tong owned and operated the second vehicle, directly behind the vehicle operated by Shlayan, and the defendant Angelo Vallejos was driving the third vehicle, owned by the defendant Golden Touch Transportation of N.Y., Inc. (hereinafter Golden Touch), behind the Tong vehicle. According to the complaint, the plaintiff allegedly sustained injuries when the vehicle in which she was a passenger, that is, the Shlayan/VIP vehicle, was involved in a collision with the Tong and Vallejos/Golden Touch vehicles. Prior to the completion of discovery, Tong moved, and Shlayan and VIP cross-moved, for summary judgment dismissing the complaint and all cross claims insofar as asserted against each of them, contending that they were free from fault in the happening of the accident. The Supreme Court denied the motion and the cross motion, determining that a triable issue of fact existed as to the happening of the accident.
The Supreme Court erred in denying the cross motion of Shlayan and VIP. Shlayan and VIP demonstrated their prima facie entitlement to judgment as a matter of law by establishing that Shlayan was free from fault because the vehicle he was operating was struck from behind after he safely and properly brought the vehicle to a stop in order to avoid striking the unidentified vehicle that cut him off (see Gavrilova v. Stark, 129 A.D.3d 907, 11 N.Y.S.3d 656 ; Franco v. Breceus, 70 A.D.3d 767, 768, 895 N.Y.S.2d 152 ; Harrington v. Kern, 52 A.D.3d 473, 859 N.Y.S.2d 480 ). In opposition to the cross motion, the mere conclusory assertion that the Shlayan/VIP vehicle stopped suddenly was insufficient to raise a triable issue of fact (see Gavrilova v. Stark, 129 A.D.3d 907, 11 N.Y.S.3d 656 ; Harrington v. Kern, 52 A.D.3d 473, 859 N.Y.S.2d 480 ; Ahmad v. Grimaldi, 40 A.D.3d 786, 834 N.Y.S.2d 480 ). Furthermore, there is no merit to the contention...
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