Opinion
Index 52082/2018
04-16-2020
MARTIN ROSA, Plaintiff, v. EDWARD A. CUTRONE AND TAPPAN ZEE CONSTRUCTORS, LLC, Defendants.
Unpublished Opinion
DECISION AND ORDER
HON. JANET C. MALONE JUSTICE
The following papers numbered 1-4 were read in deciding the motion for partial summary judgment and to strike Defendants' affirmative defense of culpable conduct filed by Plaintiff:
Plaintiff's Affidavit is attached as Exhibit D.
This document was reviewed on the New York State Courts Electronic Filing (NYSCEF) system. It should be noted that the Parties were directed to appear in the Compliance Conference Part on April 2, 2020 at 9:30 a.m. See, Compliance Conference Referee Report and Order (Lefkowitz, J.) dated March 2, 2020.
On March 1, 2018, Plaintiff commenced the underlying action to recover for alleged personal injuries that occurred on June 23, 2017 at approximately 2:05 p.m. on Paulding Street at or near Nepperhan Avenue, in the City of Elmsford, County of Westchester, State of New York, when the vehicle owned by Defendant Tappan Zee Constructors, LLC and operated by Defendant Edward A. Cutrone backed into Plaintiff's vehicle. See, Affirmation of Jeffrey S. Stillman, Esq. at paragraphs 3 and 7 and Affirmation in Opposition of Julie A. Tribble, Esq. at paragraph 3; see also, Amended Summons and Complaint and Verified Bill of Particulars as Exhibits B and F attached to Notice of Motion.
With issue being joined, Plaintiff now moves for partial summary judgment on the issue of liability and to strike Defendants' affirmative defense of culpable conduct which is opposed by Defendants. See, CPLR R 3212 (e); see also, Notice of Motion, Affirmation in Opposition of Julie A. Tribble, Esq. and Verified Answer as Exhibit C to Notice of Motion.
A driver of a vehicle shall not reverse such vehicle unless movement can be made with safety and no interference with other traffic. See, Vehicle and Traffic Law § 1211(a), Drummond v. Perez, 146 A.D.3d 645 (1st Dept. 2017), and Ortiz v. Lynch, 105 A.D.3d 584 (1st Dept. 2013); see also, Affirmation of Jeffrey S. Stillman, Esq.
In Plaintiff's sworn Affidavit he claims that on the date of the subject accident while traveling eastbound along Paulding Street at or near Nepperhan Avenue, he brought his car to a complete stop, when the vehicle in front of him operated by Defendant Edward A. Cutrone backed up and struck the front of his vehicle. Additionally, Plaintiff states that the accident occurred solely due to the fault of Defendant Edward A. Cutrone, which is unopposed or rebutted by Defendants. Therefore, Plaintiff's motion to strike Defendants' affirmative defense of culpable conduct is granted. See, Zuckerman v. New York, 49 N.Y.2d 557 (1980), Al-Nashash v. Soutra Limousine, Inc., 115 A.D.3d 534 (1st Dept. 2014)(holding "Defendants submitted only their attorneys affirmation in opposition to the plaintiff's motion, which did not provide any explanation for the accident, and, in any event, was insufficient to raise a triable issue of fact"); see also, Affidavit of Plaintiff as Exhibit D to Notice of Motion, Affirmation of Jeffrey S. Stillman, Esq. in Support and in Reply, and Affirmation of Julie A. Tribble, Esq. in Opposition.
Additionally, Defendants' Counsel's claims that discovery may lead to relevant evidence or that facts essential to oppose the motion were exclusively within the knowledge and control of Plaintiff, that Plaintiff failed to address the exact location Plaintiff stopped his vehicle, how long he was stopped, or how close he was to Defendants' vehicle is insufficient to deem Plaintiff's motion premature. See, CPLR R 3212(f), Kimyagarov v. Nixon Taxi Corp., 45 A.D.3d 736, (2d Dept. 2007), Garner v. Chevalier Transp. Corp., 58 A.D.3d 802, (2d Dept. 2009), and Morissaint v. Raemar Corp., 271 A.D.2d 586 (2d Dept. 2000)(holding "The belief that additional discovery might reveal something helpful to their case does not provide a basis pursuant to CPLR 3212(f) for postponing a determination of summary judgment."); see also, Affirmation of Julie A. Tribble, Esq. in Opposition and Affirmation of Jeffrey S. Stillman, Esq. in Reply.
As to Defendant Tappan Zee Constructors, LLC, it can also be held liable as such Defendant does not dispute that Defendant Edward A. Cutrone operated the vehicle with the permission and consent of owner Defendant Tappan Zee Constructors, LLC. See, Vehicle and Traffic Law § 388(1) and Sarine v. American Lumbermen's Mut. Casualty Co., 258 A.D. 653 (2d Dept. 1940) (holding the owner's liability "is derivative and is akin to that imposed on a master for the negligent acts of his servant under the doctrine of respondeat superior").
Accordingly, Plaintiff's motion for partial summary judgment is granted.
This matter is referred to the Compliance Conference Part and a conference will be scheduled at a later date.
This constitutes the Decision and Order of this Court.
To the extent not addressed, the remaining relief is denied.