Wilkins v. Stewart
| Decision Date | 23 October 2019 |
| Docket Number | Index No.: 510456/2017 |
| Citation | 2019 NY Slip Op 33337 (U) |
| Parties | KIMAYA WILKINS, a minor, by her parents and natural guardians KIMBERLY WILKINS AND MICHAEL WILKINS, KIMBERLY WILKINS, individually, and MICHAEL WILKINS, individually, and MCDONALD CLINTON as guardian of the property of CARTER BRIZARD, an infant, Plaintiffs, v. RALPH STEWART, HUDSON LOGISTICS, INC., SONALI CLINTON and ELIDA CLINTON, Defendants. |
| Court | New York Supreme Court |
At an IAS Term, Part 88 of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse, at 360 Adams Street, Brooklyn, New York, on October 23, 2019.
PRESENT: HON. DAWN JIMENEZ-SALTA, Justice.
DECISION AND ORDER
Mot Seq #s 3&4
Recitation, as required by CPLR 2219(a), of the papers considered in the review of:
1) Plaintiff McDonald Clinton ("Clinton") as Guardian of the Property of Carter Brizard ("Infant Plaintiff Brizard"), an Infant's Notice of Motion For an Order of Summary Judgment Pursuant to CPLR 3212 in Their Favor on the Issues of Liability and Comparative Negligence against Defendants Ralph Stewart ("Stewart") and Hudson Logistics, Inc. ("Hudson") As Well As for Such Other Further Just and Proper Relief by the Court, dated March 27, 2019;
2) Plaintiffs Kimberly Wilkins and Michael Wilkins ("Plaintiffs Wilkins") as Parents and Natural Guardians of Plaintiff Kimaya Wilkins ("Infant Plaintiff Wilkins"), a Minor's Notice of Cross Motion for Summary Judgment Pursuant to CPLR 3212 on the Issues of Liability and Comparative Negligence in Their Favor Against Defendants Stewart and Hudson As Well As for Such Other Further Just and Proper Relief by the Court, dated March 29, 2019;
3) Defendants Stewart and Hudson's Affirmation in Opposition to Motion for Summary Judgment by Infant Plaintiff Brizard, dated May 1, 2019;
4) Defendants Stewart and Hudson's Affirmation in Opposition to Cross Motion for Summary Judgment by Infant Plaintiff Wilkins, dated May 1, 2019;
5) Plaintiff Clinton and Infant Plaintiff Brizard's Reply Affirmation, dated May 7, 2019, all of which submitted May 8, 2019.
Papers Numbered Order to Show Cause and Affidavits Notice of Motion Infant Plaintiff Brizard 1 [Exh. A-N] and AttorneyAffirmation Cross Motion Infant Plaintiff Wilkins 2 [Exh. A-B] and AttorneyAffirmation Answering Affidavit Defendants Affirmation in Opposition to Brizard 3 [Exh.A]Defendants Affirmation in Opposition to Wilkins 4[Exh. A-B]Infant Plaintiff Brizard's Reply Affirmation [Exh. A-B] Supplemental Affidavits Exhibits Other
Upon the foregoing cited papers, the Decision/Order on this Motion is as follows: This Court grants Plaintiff Clinton and Infant Plaintiff Brizard's motion as well as Plaintiffs Wilkins and Infant Plaintiff Wilkins' cross motion for summary judgment pursuant to CPLR 3212 in their favor on the issues of liability and comparative negligence. It denies their request to strike Defendants Stewart and Hudson's Third Affirmative Defense on the Seatbelt Defense in their Answer .
BACKGROUND, PROCEDURAL HISTORY
AND ARGUMENTS
On February 21, 2017 at approximately 11:51 a.m.. a tractor trailer owned by Defendant Hudson Logistics, Inc. ("Hudson"), a Kentucky corporation and operated by Defendant Ralph Stewart ("Stewart"), a Kentucky resident and a motor vehicle owned by Kings County, New York resident, Defendant Elida Clinton ("Elida Clinton" or "Elida") and operated by Kings County, New York resident, Defendant Sonali Clinton ("Sonali Clinton" or "Sonali") were traveling on Interstate Route 78 in Upper Macungie Township, Pennsylvania. Infant Plaintiff Kimaya Wilkins ("Infant Plaintiff Wilkins") and Infant Plaintiff Carter Brizard ("Infant Plaintiff Brizard") were rear seated passengers in Defendants Clinton's motor vehicle. Infant Plaintiff Brizard is the son of Defendant Sonali Clinton. He is the grandson of the owner of the vehicle, Defendant Elida Clinton. When Defendants Hudson and Stewart's tractor trailer attempted to move from the left lane into the right lane, it collided with Defendants Clinton's motor vehicle, causing Defendants Clinton's motor vehicle to come into contact with the center median, flipping over. As a result, Infant Plaintiff Kimaya Wilkins and Infant Plaintiff Carter Brizard sustained serious injuries. Defendant Stewart was given a citation at the scene of the accident. He ultimately pleaded guilty to violating Title 75, Chapter 33, Sections 3309(1) and 3111(a) of the Pennsylvania Motor Vehicle Code .
Kings County, New York State Residents Plaintiffs Kimaya Wilkins, a minor, by her parents and natural guardians Kimberly Wilkins and Michael Wilkins, Kimberly Wilkins, individually and Michael Wilkins, individually commenced an action in Kings County, New York Supreme Court by filing a Summons and Verified Complaint on May 25, 2017 (the "Wilkins Complaint") under Index Number 510456/2017 .
Defendants Stewart and Hudson interposed an Answer to the Wilkins' Complaint on July 14, 2017 .
Defendants Sonali Clinton and Elida Clinton interposed an Answer to the Wilkins' Complaint on August 23, 2017 .
Kings County, New York State Residents Plaintiff McDonald Clinton, grandfather as guardian of the property of Carter Brizard, an infant, commenced a separate action in Kings County New York Supreme Court by filing a Summons and Complaint under Index Number 500663/2018 on January 11, 2018 (the "Brizard Complaint") .
Defendants Stewart and Hudson interposed an Answer to the Brizard Complaint on March 2, 2018 .
Defendants Sonali Clinton and Elida Clinton interposed an Answer to the Brizard Complaint on April 23, 2018 .
The two actions were consolidated under the Index Number for this case, 510456/2017 by an Order, dated April 18, 2018 .
Defendant Sonali Clinton, the driver of the motor vehicle appeared for an Examination Before Trial ("EBT") on September 14, 2018 .
Defendant Stewart, the driver of the tractor trailer appeared for an EBT on September 21, 2018 .
Because the Note of Issue has not yet been filed, the motions are timely .
In their Notice of Motion for Summary Judgment on Liability and Comparative Negligence pursuant to CPLR 3212, dated March 27, 2019, Plaintiff Clinton and Infant Plaintiff Brizard claim that Defendant Stewart was negligent per...
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