Williams v. Shismenos Inc.

• Decision Date: 03 December 2015
• Docket Number: Index No. 505948/2014
• Citation: 2015 NY Slip Op 32531 (U)
• Parties: ALEXIA WILLIAMS, Plaintiff, v. SHISMENOS INC., F. ZAMAN, HERTZ VEHICLES LLC and EDUARDO MICHAEL GLOVER, Defendants.
• Court: New York Supreme Court

2015 NY Slip Op 32531(U)

ALEXIA WILLIAMS, Plaintiff, v. SHISMENOS INC., F. ZAMAN, HERTZ VEHICLES LLC and EDUARDO MICHAEL GLOVER, Defendants.

Index No. 505948/2014

New York Supreme Court

RECEIVED: February 10, 2016

FILED: January 14, 2016

December 3, 2015

NYSCEF DOC. NO. 13

At an IAS Term, Part 18 of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse, Brooklyn, New York, on the 3^rd day of December 2015.

PRESENT: HON. BERNADETTE BAYNE Justice.

DECISION AND ORDER

The following papers numbered 1 to 4 read on this motion:

Papers Numbered

Notice of Motion/

Affidavits ("Affirmations) Annexed

1

Affirmation in Opposition

2

This actum was commenced by ALEXIA WILLIAMS (plaintiff) to recover damages for serious personal injuries sustained in a rear-end motor vehicle collision. By notice of motion filed on March 26, 2015 under motion sequence one, plaintiff now moves this Court for an Order, pursuant to CPLR §3212, for summary judgment on the issue of liability as against defendants SHISMENOS INC., and F. ZAMAN (SHISMENOS and ZAMAN). SHISMENOS and ZAMAN oppose the motion on the grounds that the motion is premature and that issues of fact exist that cannot be resolved until further discovery is completed.

Background

On March 15, 2014, plaintiff was a passenger in a motor vehicle owned by SHISMENOS and operated by ZAMAN. ZAMAN hit the rear of the stopped motor vehicle owned by defendant HERTZ VEHICLES LLC and operated by defendant EDUARDO MICHAEL GLOVER (GLOVER).

In support of plaintiff's motion for summary judgement on the issue of liability, plaintiff submitted a sworn affidavit and the police accident report. Plaintiff, in the affidavit, avers that at the time of the collision, GLOVER's vehicle was at a complete stop within its lane at a red traffic signal. Moreover, plaintiff avers that ZAMAN admitted to plaintiff that ZAMAN rear ended GLOVER's vehicle. Additionally, pursuant to the police accident report, ZAMAN stated to the responding police officer at the scene that ZAMAN "rear ended" GLOVER's vehicle when GLOVER stopped short.

In opposition to plaintiff's motion for summary judgment, SHISMENOS and ZAMAN argue that plaintiff's motion should be denied as premature and that genuine issues of material fact exist which cannot be resolved until further discovery is completed. SHISMENOS and ZAMAN, as part of the motion in opposition, submitted a copy of the same police accident report but failed to submit an affidavit from either ZAMAN or a person with personal knowledge of the underlying facts denying plaintiff's allegations.

Summary Judgment Standard

"To obtain summary judgment it is necessary that the movant establish his cause of action or defense 'sufficiently to warrant the court as a matter of law in directing judgment' in his favor." (CPLR §3212, subd. (b); Friends of Animals v. Associated Fur Mfrs., 46 N.Y.2d 1065, 1067-1068; 390 N.E.2d 298, 416 N.Y.S2d 790 (1979). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers. Matter of Redemption Church of Christ v Williams, 84 A.D.2d 648, 649, 444 N.Y.S.2d 305 (3d Dept 1981); Greenburg v Manlon Realty, 43 A.D.2d 968, 969, 352 N.Y.S.2d 494 (2d Dept 1974); Winegrad v New York University Medical Center, 64 N.Y.2d 851, 476 N.E.2d 642, 487 N.Y.S.2d 316 (1985). Additionally, the evidence submitted in support of the movant must be viewed in the light most favorable to the non-movant. Marine Midland Bank, N.A. v Dino & Artie's Automatic Transmission Co., 168 A.D.2d 610, 563 N.Y.S.2d 449 (2d Dept 1990). "The drastic remedy of summary judgment is appropriate only where a thorough examination or the merits clearly demonstrates the absence of any triable issues of fact." Id. At 610; accord Piceirillo v Piceirillo, 156 A.D.2d 748, 549 N.Y.S.2d 509 (2d Dept 1989).

To defeat a motion for summary judgment the opposing party "must produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact on which he rests his claim ...; mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient." Zuckerman v. City of New York, 49 N.Y.2d 557, 404 N.E.2d 718, 427 N.Y.S.2d 595 (1980); see also, Alvarez v Prospect Hospital, 68 N.Y.2d 320, 324, 501 N.E.2d 572, 508 N.Y.S.2d 923 (1986); Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 404, 144 N.E.2d 387, 165 N.Y.S2d 498 (1957).Decision

"It is well settled that a rear-end collision with a stopped vehicle establishes a prima facie case of liability against the moving vehicle and imposes a duty of explanation on its driver." (Krakowska v. Niksa, 298 A.D.2d 561, 749 N.Y.S.2d 55 (2d Dept 2002); Jercmie v. Tong, 283 A.D.2d 461, 724 N.Y.S.2d 484 (2d Dept 2001); Leonard v. City of New York, 273 A.D.2d 205, 708 N.Y.S.2d 467 (2d Dept 2000). According to plaintiff's uncontradicted affidavit, it is undisputed that ZAMAN's vehicle hit GLOVER's vehicle in the rear when Glover's vehicle was stopped. Plaintiff's affidavit avers, inter alia, that prior to the impact, GLOVER's vehicle was stopped at the red light of the intersection of Canal and Allen Streets for approximately 3 seconds; GLOVER's vehicle was completely within its lane; the weather was clear; the roads were dry; and visibility was excellent, Plaintiff further avers that ZAMAN admitted to plaintiff and to the responding police officer that ZAMAN rear ended Glover's vehicle. ZAMAN's action of hitting GLOVER's vehicle in the rear constituted negligence as a matter of law (Scott v. Kass, 48 A.D.3d 785, 851 N.Y.S.2d 649 (2^nd Dep't 2008); Johnston v. Spoto, 47 A.D.3d 888, 850 N.Y.S.2d 204 (2d Dept 2008); Kimyagarov v. Nixon Taxi Corp, 45 A.D.3d 736, 846 N.Y.S.2d 309 (2d Dept 2007); Niyazov v. Bradford, 13 A.D.3d 501, 786 N.Y.S.2d 582 (2d Dept 2007).

Additionally, the police accident report contains an admission by ZAMAN stating that ZAMAN "was driving behind veh #1 [GLOVER's vehicle] when it stopped short causing [ZAMAN ] to rear end veh #1." (Kemenyash v. McGoey, 306 A.D.2d 516, 762 N.Y.S.2d 629 (2d Dept 2003); Niyazov v. Bradford, 13 A.D.3d 501). Moreover, ZAMAN's admission "explained" why ZAMAN hit GLOVER's vehicle in the rear; however, that explanation, even if accepted as true, is insufficient to raise a triable issue of fact. (Johnston, 47 A.D.3d at 889).

Further, ZAMAN "failed to submit an affidavit from [either himself] or a person withpersonal knowledge of the facts either denying the plaintiff's allegations or offering a non-negligent explanation for the collision [and] the affirmation of [ZAMAN's] attorney [is] insufficient to raise a triable issue of fact." (Kimyagarov, 45 A.D.3d at 737; see Fenko v. Mealing, 43 A.D.3d 856, 841 N.Y.S.2d 378 (2^nd Dep't 2007); Piltser v. Donna Lee Management Corp., 29 A.D.3d 973, 973 N.Y.S.2d 543 (2^nd Dep' 2008).

Further, SHISMENOS' and...