Opinion
# 2012-038-523 Claim No. 117808 Motion No. M-80830
02-13-2012
CARTER v. THE STATE OF NEW YORK
Synopsis
Claimant's motion for summary judgment on liability granted. Where pleadings were considered in conjunction with prior motion in this claim, claimant's failure to submit a copy of the pleadings in support of the instant motion (CPLR 3212[b]) would be overlooked. On the merits, claimant made out a prima facie case of negligence by demonstrating that defendant's vehicle struck hers from behind while she was stopped in traffic. Defendant did not rebut the inference of negligence as no non-negligent explanation for the collision was offered. Case information
UID: 2012-038-523 Claimant(s): KAREN CARTER Claimant short CARTER name: Footnote (claimant name) : Defendant(s): THE STATE OF NEW YORK Footnote The caption has been amended, sua sponte to reflect the (defendant name) : State of New York as the only proper defendant on this claim. Third-party claimant(s): Third-party defendant(s): Claim number(s): 117808 Motion number(s): M-80830 Cross-motion number(s): Judge: W. BROOKS DeBOW Claimant's BASSO LAW attorney: By: Bryan G. Schneider & John J. Basso, Esqs. ERIC T. SCHNEIDERMAN, Attorney General Defendant's attorney: of the State of New York By: John M. Hunter, Assistant Attorney General Third-party defendant's attorney: Signature date: April 12, 2012 City: Albany Comments: Official citation: Appellate results: See also (multicaptioned case) Decision
Claimant moves for partial summary judgment on liability in this claim which seeks damages for injuries allegedly sustained in a motor vehicle accident. Defendant opposes the motion on the sole ground that claimant has failed to include a copy of the claim in support of her motion. Claimant's reply affirmation in further support of the motion asserts that a copy of the pleadings was appended to prior motion papers, and claimant has appended another copy of the claim to the reply affirmation that was served on defendant.
The Court's copy of claimant's reply affirmation does not include another copy of the claim, but claimant's counsel stated during a telephone conference on March 26, 2012 that a copy was attached to defendant's copy of the reply affirmation.
Turning first to defendant's procedural opposition to the motion, CPLR 3212(b) states that a motion for summary judgment shall be supported by certain documents, including a copy of the pleadings. Copies of the verified answer and the verified bill of particulars are appended to the instant motion, but a copy of the claim is not. Such an omission generally requires summary denial of the motion without prejudice to renewal of the motion (see Wider v Heller, 24 AD3d 433 [2d Dept 2005]; Welton v Drobnicki, 298 AD2d 757 [3d Dept 2002]; see also Senor v State of New York, 23 AD3d 851 [3d Dept 2005]). However, the omission of a pleading in support of a motion for summary judgment may be overlooked where the papers have been previously filed on a prior motion, thus making the record "sufficiently complete" (see Stiber v Cotrone, 153 AD2d 1006, 1007 [3d Dept 1989] lv denied 75 NY2d 703 1990; see also Greene v Wood, 6 AD3d 976, 977 [3d Dept 2004]). Here, in addition to the initial filing and service of the claim, a copy of the verified claim and the verified answer were considered on prior motions by claimant and defendant, both of which were addressed to the pleadings (see Carter v State of New York, UID # 2011-038-527, Claim No. 117808, Motion Nos. M-79239, CM-79361, DeBow, J. [Apr. 28, 2011]). Thus, the Court will exercise its discretion to overlook claimant's failure to support the instant motion for summary judgment with a copy of the verified claim.
Turning to the merits of claimant's motion for summary judgment, it is well established that a movant for summary judgment must establish, by proof in admissible form, the right to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067 [1979]). If the movant establishes prima facie entitlement to summary judgment, the burden then shifts to the opponent of the motion to establish, by admissible proof, the existence of genuine issues of material fact (see Alvarez v Prospect Hosp., supra; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). As pertinent to the question of fault on a motion for summary judgment in a motor vehicle accident action, a rear-end collision with a stopped vehicle "creates a prima facie case of liability with respect to the operator of the moving vehicle and imposes a duty on that operator to rebut the inference of negligence to provide a non-negligent explanation for the collision" (Rainford v Sung S. Han, 18 AD3d 638, 639 [2d Dept 2005]; see also Garcia v Bakemark Ingredients (E.) Inc., 19 AD3d 224 [1st Dept 2005]; Ziminski v Rosenthal, 276 AD2d 790, 791 [2d Dept 2000]).
The deposition transcript of claimant that is submitted in support of claimant's motion establishes that this accident occurred during the daylight hours on April 13, 2009, which was a beautiful, sunny day. Claimant was operating a vehicle on the Cross Bronx Expressway and she had been at a complete stop in traffic for several seconds at the time of the collision. Claimant saw in her rear view mirror that the driver of the vehicle behind her was talking with a passenger, and claimant became aware that he was not going to stop his vehicle before striking hers. The vehicle struck the rear of claimant's stopped vehicle and propelled it into the vehicle that was stopped in front of claimant. The deposition testimony of defendant's employee, submitted in support of claimant's motion, demonstrates that defendant owned the vehicle that struck claimant's, and that the driver of defendant's vehicle was a permissive user. Thus, claimant has established her prima facie right to judgment on the issue of defendant's fault as a matter of law, and defendant has not raised an issue of fact with respect to its lack of negligence. The Court notes that claimant's motion and this decision thereon are limited to the issue of defendant's fault, and that determination of whether claimant suffered a statutory serious injury remains undecided (see generally Reid v Brown, 308 AD2d 331 [1st Dept 2003]). Accordingly, it is
ORDERED, that claimant's motion for summary judgment on liability, M-80830, is GRANTED.
April 12, 2012
Albany, New York
W. BROOKS DeBOW
Judge of the Court of Claims
Papers considered:
(1) Verified Claim No. 117808, filed December 16, 2009;
(2) Verified Answer, filed January 27, 2010;
(3) Notice of Motion, dated December 6, 2011;
(4) Affirmation in Support of Bryan G. Schneider, Esq., dated December 6, 2011, with
Exhibits A-D;
(5) Affirmation in Opposition of John Hunter, AAG, dated February 6, 2012;
(6) Reply Affirmation of John J. Basso, Esq., in Further Support of Motion for Summary