Stewart v. Perez

• Decision Date: 14 June 2012
• Docket Number: Motion Seq. No.: 7,Motion Seq. No.: 9,Motion Cal. No.: 29,Motion Cal. No.: 28,Motion Cal. No.: 26,Motion Seq. No.: 8,Index No.: 26064/06
• Citation: Stewart v. Perez, 2012 NY Slip Op 31596, Index No.: 26064/06, Motion Cal. No.: 26, Motion Cal. No.: 28 (N.Y. Sup. Ct. Jun 14, 2012)
• Parties: Godfrey Stewart and Jacqueline Stewart, Plaintiffs, v. Alberto Perez, Sue Jun-Om, Jong Hoon Om, Defendants. Sue Jun-Om, Jong Hoon Om, Third Party Plaintiffs v. Bibi A. Bacchus, Haniff Bacchus MB, Dupont Bayas, Evaeya Cajou-Bayas, Vera M. Phillips, Emkay Inc., Trust, Perez Alberto, Henry Gomez and Gelco Corp., Third Party Defendants
• Court: New York Supreme Court

2012 NY Slip Op 31596

Godfrey Stewart and Jacqueline Stewart, Plaintiffs,

v.Alberto Perez, Sue Jun-Om, Jong Hoon Om, Defendants.

Sue Jun-Om, Jong Hoon Om, Third Party Plaintiffs

v.Bibi A. Bacchus, Haniff Bacchus MB, Dupont Bayas, Evaeya Cajou-Bayas, Vera M. Phillips,Emkay Inc., Trust, Perez Alberto, Henry Gomez and Gelco Corp., Third Party Defendants

Index No.: 26064/06

Motion Cal. No.: 28

Motion Cal. No.: 29

Motion Cal. No.: 26

Motion Seq. No.: 7

Motion Seq. No.: 8

Motion Seq. No.: 9

NEW YORK STATE SUPREME COURT - QUEENS COUNTY IAS TERM, PART 19

Motion Date: February 29, 2012

Motion Date: April 18, 2012

Dated: June 14, 2012

Short Form Order

Present: HONORABLE BERNICE D. SIEGAL

Justice

The following papers numbered 1 to 57 read on this motion for an order pursuant to CPLR §3212 by third-party defendant Henry Gomez allowing a motion for summary judgment in his favor on the issue of liability to be brought after the court-imposed deadline and on this motion granting summary judgment in his favor on the issue of liability; on this cross-motion by defendant Alberto Perez denying summary judgment in his favor on the issue of liability; on this motion by third-party defendants, Bibi A. Bacchus and Nahiff Bacchus, to renew motion for summary judgment, dated June 16, 2009, granting summary judgment in their favor on the issue of liability; on this cross-motion by third party defendant Vera M. Phillips to renew motion for summary judgment, dated June 19, 2009, granting summary judgment in her favor on the issue of liability; and on this motion by third-party defendants, Dupont Bayas and Evaeya Cajou-Bayas, to renew motion for summary judgment, dated June 18, 2009, granting summary judgment in their favor on the issue of liability.

+------------------------------------------------------------+
                ¦                                                   ¦PAPERS  ¦
                ¦                                                   ¦        ¦
                ¦                                                   ¦NUMBERED¦
                +---------------------------------------------------+--------¦
                ¦Notice of Motion (Seq 7) - Affidavits-Exhibits     ¦1 - 4   ¦
                +---------------------------------------------------+--------¦
                ¦Affirmation in Opposition                          ¦5 - 9   ¦
                +---------------------------------------------------+--------¦
                ¦Reply                                              ¦10 - 12 ¦
                +---------------------------------------------------+--------¦
                ¦Notice of Cross-Motion (Seq 7)- Affidavits-Exhibits¦13 - 17 ¦
                +---------------------------------------------------+--------¦
                ¦Affirmation in Opposition                          ¦18 - 21 ¦
                +---------------------------------------------------+--------¦
                ¦Reply                                              ¦22 - 24 ¦
                +---------------------------------------------------+--------¦
                ¦Notice of Motion (Seq 8) - Affidavits-Exhibits     ¦25 - 29 ¦
                +---------------------------------------------------+--------¦
                ¦Affirmation in Opposition                          ¦30 - 33 ¦
                +---------------------------------------------------+--------¦
                ¦Reply                                              ¦34 - 36 ¦
                +---------------------------------------------------+--------¦
                ¦Notice of Motion (Seq 9) - Affidavits-Exhibits     ¦37 - 40 ¦
                +---------------------------------------------------+--------¦
                ¦Affirmation in Opposition                          ¦41 - 43 ¦
                +---------------------------------------------------+--------¦
                ¦Reply                                              ¦44 - 45 ¦
                +---------------------------------------------------+--------¦
                ¦Notice of Cross-Motion (Seq 9)- Affidavits-Exhibits¦46 - 50 ¦
                +---------------------------------------------------+--------¦
                ¦Affirmation in Opposition                          ¦51 - 54 ¦
                +---------------------------------------------------+--------¦
                ¦Reply                                              ¦55 - 57 ¦
                +------------------------------------------------------------+
                

Upon the foregoing papers, it is hereby ordered that the motion is resolved as follows:

Third-party defendant Henry Gomez ("Gomez") moves for an order pursuant to CPLR §3212 permitting a motion for summary judgment based on the showing of "good cause" for delay in filing motion for summary judgment even after the court-imposed deadline of June 19, 2009; and granting summary judgment to third-party defendant Gomez on all third party plaintiff's cause of action against him and on all cross-claims and counter-claims.

Defendant Alberto Perez cross-moves for an order pursuant to CPLR §3212 granting summary judgment on the issue of liability for plaintiffs' injuries and dismissing the claims and cross claims against him. Third-party defendants, Bibi A. Bacchus and Nahiff Bacchus, cross-moves for an order pursuant to CPLR §2221 to renew motion for summary judgment, dated June 16, 2009, on the issue of liability for plaintiff's injuries dismissing the claims and cross claimsagainst them. Third-party defendant Vera M. Phillips cross-moves for an order pursuant to CPLR §2221 to renew motion for summary judgment, dated June 19, 2009, on the issue of liability for plaintiff's injuries dismissing the claims and cross claims against her. Third-party defendants, Dupont Bayas and Evaeya Cajou-Bayas, move for an order pursuant to CPLR §2221 to renew its motion for summary judgment, dated June 18, 2009, on the issue of liability for plaintiff's injuries dismissing the claims and cross claims against them.

Facts

This is an action arising from a seven car accident occurring on October 25, 2005. The accident occurred on a wet roadway, specifically, on I-295 southbound branch of the Cross-Bronx Expressway (leading to the Throngs Neck Bridge). The alleged accident occurred in two different chains of accidents resulting in three discrete impacts. The vehicle of third-party defendant Bibi A. Bacchus ("Bacchus") was stopped in the left lane due to an non-party vehicle stopping in front of her car. Bacchus's vehicle then was rear-ended first by the vehicle of third-party defendant Dupont Bayas ("Bayas"). According to Bacchus, Bayas then moved his vehicle to the center lane and stopped parallel to Bacchus's vehicle to ask her if she was okay and he told her that his brakes had failed. According to Bacchus, she put her car in park and put her hazards on. Next, the vehicle of third-party defendant Vera M. Phillips ("Phillips") rear-ended Bacchus's vehicle. Plaintiff stopped in the left lane to avoid the collision. Defendant Alberto Perez ("Perez") had also slowed down. Plaintiff's vehicle was then rear-ended by Perez's vehicle, which had allegedly been rear-ended by the vehicle of defendant Sue Jun-Om ("Jun-Om"). All vehicles except Bacchus's vehicle had pulled over to the right shoulder. Bacchus's vehicle was left unoccupied in the left lane; she stated at her depositionthat her vehicle could not be driven. About five or ten minutes later, Bacchus's vehicle was rear-ended a third time by third-party defendant Gomez. According to Perez's deposition testimony and the police report, Gomez's vehicle caused Bacchus's vehicle to spin and to swerve across three lanes striking Perez's vehicle on the left side.

Plaintiff Godfrey Stewart complains of limitation of motion in his cervical and lumbar spine, while plaintiff Jacqueline Stewart asserts a claim for loss of consortium.

Procedural History

A consent order, dated February 8, 2009, established that the time to file motions for summary judgment was extended to 60 days from the date that the last deposition was completed, but no later than June 19, 2009. The deposition of third-party defendant Gomez was held on April 11, 2009. However, the transcript was not received until July 1, 2009 by Gomez from plaintiff's counsel, which provided notice of service of Gomez's transcript on June 30, 2009. The original cross-motion brought by third-party defendant Gomez was served on July 2, 2009 and was technically untimely. However, the third-party defendant Gomez argues that "good cause" was shown because the movant had to await deposition transcripts relevant to the cross-motion. In addition, Gomez argues that good cause did not need to be shown because this motion was a cross-motion to motions timely made before this Court.

In addition, the following motions for summary judgment were brought as well. Third-party defendants Bacchus brought a motion for summary judgment, dated June 16, 2009, to dismiss the complaint in their favor on the issue of liability. Third party defendant Vera M. Phillips brought a motion for summary judgment, dated June 19, 2009, to dismiss the complaint in her favor on theissue of liability. Third-party defendants Bayas brought a motion for summary judgment, dated June 18, 2009, to dismiss the complaint in their favor on the issue of liability.

The motions brought by third-party defendants Gomez, Bacchus, Phillips, and Bayas and the part of the cross-motion brought by defendant Perez seeking summary judgment on the issue of liability were denied as moot because the Court had granted summary judgment to the main defendants on no-fault threshold grounds in an order dated January 26, 2010. The only issue addressed in the Court's decision was the serious injury threshold requirement pursuant to Insurance Law § 5102(d). Appellate Division reversed the dismissal by its order, dated November 15, 2011, and held that defendants, Om and Perez, failed to meet their prima facie burdens of showing that plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d). Third-party defendants had not been parties to the appeal and were not served with the briefs or the Appellate Division order.

Third-party defendant Gomez alleges that his counsel's first notice that the case was revived occurred when his counsel contacted plaintiff's counsel on January 9, 2012 as to a conference in the TSP Part set for January 10, 2012. Three days after being given notice that the case was revived, the third-party...