Opinion
Index No. 623965/2017 Motion Sequence No. 001; MG;
02-10-2021
JESSIE GUEVARA, Plaintiff, v. JAMIE A. GUEVARA, JULIA D. GUEVARA, ASHLEY N. RAMIREZ and PASTOR RAMIREZ, Defendants.
ATTORNEY FOR PLAINTIFF: Donald Leo & Associates, LLC ATTORNEYS FOR DEFENDANTS: Gentile & Tambasco, Esqs. McMahon, Martine & Gallagher
Unpublished Opinion
MOTION R/D: 7/10/2020
SUBMISSION DATE: 10/30/20208/7/2020
ATTORNEY FOR PLAINTIFF: Donald Leo & Associates, LLC
ATTORNEYS FOR DEFENDANTS: Gentile & Tambasco, Esqs.
McMahon, Martine & Gallagher
PRESENT Hon. DENISE F. MOLIA Justice
HON. DENISE F. MOLIA A.J.S.C.
Upon the E-file document list numbered 15 to 52 read on the motion by plaintiff Jesse Guevara for an order pursuant to CPLR 3212 granting summary judgment on the issue of liability against defendants Jamie A. Guevara, Julia D. Guevara, Ashley N. Ramirez, and Pastor Ramirez and granting plaintiff leave to file a late note of issue; it is
ORDERED that the motion by plaintiff for summary judgment on the issue of liability as against defendants Jamie A. Guevara, Julia D. Guevara, Ashley N. Ramirez, and Pastor Ramirez, is GRANTED for the reasons set forth herein; and it is further
ORDERED that plaintiffs unopposed motion for leave to file a late note of issue for the purpose of placing this matter on the trial calendar as to the issue of damages is GRANTED: and it is further
ORDERED that plaintiff shall file a note of issue within twenty (20) days from the date of entry of this order.
This is an action seeking damages for personal injuries alleged to have been suffered by plaintiff Jesse Guevara ("plaintiff) as a result of a motor vehicle accident on April 15, 2017 at the intersection of Van Cedar Street and Monroe Avenue, Brentwood, County of Suffolk, State of New York. Plaintiff commenced this action by the filing of a summons and complaint on December 15, 2017. The complaint alleges that plaintiff was a passenger in the motor vehicle operated by Jamie A. Guevara ("Guevara") when the Guevara vehicle collided with the vehicle operated by defendant Ashley N. Ramirez ("Ramirez"). Issue was joined and discovery completed. A compliance conference order was entered on November 19, 2019. Plaintiff now moves for summary judgment on the issue of liability pursuant to CPLR 3212 and for leave to file a late note of issue. In support of the motion, plaintiff submits, inter alia, an attorney affirmation, a sworn affidavit, a copy of the certification order, the pleadings, the examination before trial transcripts of plaintiff and Ramirez, and various photographs of the Guevara vehicle and the location of the accident. Defendants Guevara and Julia D. Guevara (the "Guevara defendants") oppose the motion by attorney affirmation and submit the transcript of the examination before trial of Guevara. Defendants Ramirez and Pastor Ramirez (the "Ramirez defendants") oppose plaintiff s motion and adopt the arguments raised by the Guevara defendants.
It is well settled that a party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issue of fact (see Alvarez v Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923 [1986]; Friends of Animals v Associated Fur Mfrs., 46 N.Y.2d 1065, 1067,416 N.Y.S.2d 790 [ 1979]). The failure of the moving party to make a prima facie showing requires the denial of the motion regardless of the sufficiency of the opposing papers (see Winegrad v New York Univ Med. Ctr., 64 N.Y.2d 851, 487 N.Y.S.2d 316 [1985]). However, once the movant has made the requisite showing, the burden then shifts to the party opposing the motion to produce evidentiary proof in admissible form sufficient to require a trial on any material issue of fact (Zuckerman v City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595 [1980]. To defeat a motion for summary judgment, a party opposing such motion must lay bare his proof in evidentiary form; conclusory allegations are insufficient to raise a triable issue of fact (see Friends of Animals, Inc. v Associated Fur Mfrs., 46 N.Y.2d 1065, 416 N.Y.S.2d 790; Burns v City of Poughkeepsie, 293 A.D.2d 435, 739 N.Y.S.2d 458 [2d Dept 2002]). In deciding the motion, the Court must view all evidence in the light most favorable to the nonmoving party (Nomura, supra; see also Ortiz v Varsity Holdings, LLC, 18 N.Y.3d 335,339,937 N.Y.S.2d 157 [2011]). A motion for summary judgment should be denied where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility (see Chimbo v Bolivar, 142 A.D.3d 944, 37 N.Y.S.3d 339 [2d Dept 2016]; Benetatos v Comerford, 78 A.D.3d 730, 911 N.Y.S.2d 155 [2d Dept 2010]).
"A plaintiff in a negligence action moving for summary judgment on the issue of liability must establish, prima facie, that the defendant breach a duty owed to the plaintiff and that the defendant's negligence was a proximate cause of the alleged injuries" (Tsyganash v Auto Mall Fleet Mgmt., Inc., 163 A.D.3d 1033, 83 N.Y.S.3d 74 [2d Dept 2018]). A violation of a standard of care imposed by the Vehicle and Traffic Law constitutes negligence per se (Lebron v Mensah, 161 A.D.3d 972, 76 N.Y.S.3d 219 [2d Dept 2018]; Barbaruolo v Difede, 73 A.D.3d 957, 900 N.Y.S.2d 671 [2d Dept 2010]; Ciatto v Lieberman, 266 A.D.2d 494, 698 N.Y.S.2d 54 [2d Dept 1999]; see also Barbieri v Vokoun, 72 A.D.3d 853, 856,900 N.Y.S.2d 315 [2d Dept 2010]; Smith v State of New York, 121 A.D.3d 1358,1358-59, 955 N.Y.S.2d 329 [3d Dept 2014]. A driver with the right of way is entitled to anticipate that other motorists will obey traffic laws that require them to yield the right of way (see Lebron v Mensah, 161 A.D.3d 972, 76 N.Y.S.3d 219 [2d Dept 2018]; Bullock v Calabretta, 119 A.D.3d 884 [2d Dept 2014]; Kucar v Town ojHuntington, 81 A.D.3d 784, 917 N.Y.S.2d 646 [2d Dept 2011]; Todd v Godek, 71 A.D.3d 872 [2d Dept 2010] Kann v Maggies Paratransit Corp., 63 A.D.3d 792, 882 N.Y.S.2d 129 [2d Dept 2009]; Berner v Koegel, 31 A.D.3d 591, 819 N.Y.S.2d 89 [2d Dept 2006]; GablervMarly Bldg. Supply Corp., 27 A.D.3d 519, 813 N.Y.S.2d 120 [2d Dept 2006]). Further, a driver is negligent when an accident occurs because the driver failed to see that which through proper use of the driver's senses he or she should have seen (see Laino v Lucchese, 35 A.D.3d 672, 827 NYS2D 249 [2d Dept 2006]; Berner vKoegel, 31 A.D.3d 591, 819 N.Y.S.2d 89 [2d Dept 2006]; Bongiovi v Hoffman, 18 A.D.3d 686, 795 N.Y.S.2d 354 [2d Dept 2005]). However, "a driver who has the right-of-way has a duty to exercise reasonable care to avoid a collision with another vehicle" (Gause v Martinez, 91 A.D.3d 595,936 N.Y.S.2d 272 [2d Dept 2012] quoting Todd v Godek, 71 A.D.3d 872, 895 N.Y.S.2d 861 [2d Dept 2010]; Bonilla v Calabria, 80 A.D.3d 720 [2d Dept 2011]; Gardner vSmith, 63 A.D.3d 783 [2dDept 2009]; Cox v Nunez, 23 A.D.3d 427 [2d Dept 2005]). There can be more than one proximate cause of an accident and the issue of comparative negligence is generally a question of fact for the jury to decide (see Bullock v Calabretta, 119 A.D.3d 884, 989 N.Y.S.2d 862 [2d Dept 2014];BonillavCalabria, 80 A.D.3d720 [2dDept2011]; ToddvGodek, 71 A.D.3d872, 895 N.Y.S.2d 861 [2d Dept 2010]). The fact that a party violated the Vehicle and Traffic Law would not preclude a finding that comparative negligence by another party contributed to the accident (see Gardner v Smith, 63 A.D.3d 783 [2d Dept 2009; Cox v Nunez, 23 A.D.3d 427 [2d Dept 2005]). However, a plaintiff need not prove that he or she was free from comparative fault in order to establish his or her prima facie entitlement to summary judgment (see Rodriguez v City of New York, 31 N.Y.3d 312, 76 N.Y.S.3d 898 [2018]; Edgerton v City of New York, 160 A.D.3d 809, 74 N.Y.S.3d 617 [2d Dept 2018]).
Here, plaintiff made a prima facie showing of entitlement to summary judgment in that there is no dispute that plaintiff was an innocent passenger in the Guevara vehicle and there was no negligence or culpable conduct on the part of the plaintiff that contributed to the accident (see Johnson v Braun, 120 A.D.3d 765, 991 N.Y.S.2d 351 [2d Dept 2014]; Mughal v Rajput, 106 A.D.3d 886,965 N.Y.S.2d 545 [2d Dept 2013]). It has been determined that the right of an innocent passenger to summary judgment on the issue of whether he or she was at fault in the happening of an accident is not restricted by potential issues of comparative negligence which may exist as between two defendant drivers (see Morris v Dorota, 187 A.D.3d 1174, 131 N.Y.S.3d 577 [2d Dept 2020]; Romain v City of New York, 177 A.D.3d 590, 591, 112 N.Y.S.3d 162 [2d Dept 2019]). In opposition, defendants fail to raise a question of fact. In that regard, neither driver suggested that the innocent plaintiff passenger bore any fault in the happening of the accident (see Morris v Dorota, supra; Romain v City of New York, supra). While plaintiff does not bear the burden of establishing the absence of his own comparative fault (Rodriguez v City of New York, 31 N.Y.3d 312, 76 N.Y.S.3d 898 [2018]) here, the court finds as a matter of law that plaintiff did not engage in any culpable conduct that contributed to the happening of the accident and dismisses defendants' affirmative defenses of comparative negligence as against plaintiff, in addition to granting plaintiff summary judgment on liability (see Morris v Dorota, 187 A.D.3d 1174, 131 N.Y.S.3d 577 [2d Dept 2020]; Romain v City of New York, 177 A.D.3d 590, 591, 112 N.Y.S.3d 162 [2d Dept 2019]; Jung v Glover, 169 A.D.3d 782, 93 N.Y.S.3d 390 [2d Dept 2019]; Medina v Rodriguez, 92 A.D.3d 850 [2d Dept 2012]; cf. Hedian v MTLR Corp., 169 A.D.3d 620, 92 N.Y.S.3d 880 [1st Dept 2019]; Oluwatayo v Dulinayan, 142 A.D.3d 113, 35 N.Y.S.3d 84 [1st Dept 2016]).
Accordingly, plaintiffs motion for summary judgment on the issue of liability is granted. Inasmuch as no defendant has addressed plaintiffs request for leave to file a late note of issue, plaintiffs motion in this regard is granted, without opposition.
The foregoing constitutes the decision and Order of this Court.