Opinion
Index No. 709154/2018 Motion Cal. No. 4 Motion Sequence No. 1
01-31-2019
MICHELLE BELLESTINE Plaintiff, v. ALEXANDRA M. ROSATO, PENGUANG WENG, ALBERT J. SANTORO and HOME BAY TRADING CORP., Defendants.
Unpublished Opinion
Motion Date: December 5, 2018
Present: HONORABLE CHEREE A. BUGGS, Justice
SHORT FORM ORDER
HONORABLE CHEREE A. BUGGS, JSC.
The following e-file papers numbered 17-42 submitted and considered on this motion by defendants Penguang Weng and Home Bay Trading Corp, (collectively referred to as "HBTC") and cross motion by defendants Albert J. Santoro (hereinafter referred to as "Santoro") seeking an Order pursuant to Civil Practice Law and Rules (hereinafter referred to as "CPLR") 3212 for summary judgment on the issue of liability to plaintiff (hereinafter referred to as "Plaintiff'). Also, this cross motion by Plaintiff seeking an Order pursuant to CPLR 3212 for summary judgment on the issue of liability against all defendants.
Papers Numbered
Notice of Motion- Affirmation in Support..... EF17-22
Cross Motion- Exhibits................................... EF 23-30
Reply Affirmation.......................................... EF 31
Cross Motion- Exhibits.................................. EF 32-35
Affirmation in Opp- Exhibits......................... EF 36-37
Reply Affirmation.......................................... EF 38
Reply Affirmation.......................................... EF 39-40
Reply Affirmation............................................ EF 41-42
This is a negligence action arising out of a four-car collision that occurred September 28, 2016 on the Long Island Expressway near Exit 37 in Nassau County. The parties do not dispute that they were all in the midst of traffic. Preceding the accident, Santoro was stopped and HBTC was stopped behind Santoro. Plaintiff's car (directly behind HBTC's) came into contact with HBTC's stopped car causing HBTC's car to come into contact with Santoro's vehicle. The parties have offered no conflicting evidence to disprove Santoro and HBTC's positions that they were both stopped in traffic before any impact occurred. However, there is conflicting evidence as to whether Plaintiff came into contact with HBTC's car after being hit by defendant Alexandra M. Rosato's (hereinafter referred to as "Rosato") car or whether Plaintiffs car came into contact with HBTC's car before Rosato came into contact with Plaintiffs car.
Summary Judgment
The Court's function on a motion for summary judgment is "to determine whether material factual issues exist, not to resolve such issues" (Lopez v Beltre, 59 A.D.3d 683, 685 [2d Dept 2009]; Santiago v Joyce, 127 A.D.3d 954 [2d Dept 2015]). As summary judgment is to be considered the procedural equivalent of a trial, "it must clearly appear that no material and triable issue of fact is presented .... This drastic remedy should not be granted where there is any doubt as to the existence of such issues ... or where the issue is 'arguable'" [citations omitted] (Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 404 [1957]; see also Rotuba Extruders v. Ceppos, 46 N.Y.2d 223 [1978]; Andre v. Pomeroy, 35 N.Y.2d 361 [1974]; Stukas v. Streiter, 83 A.D.3d 18 [2d Dept 2011]; Dykeman v. Heht, 52 A.D.3d 767 [2d Dept 2008]. Summary judgment "should not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility" (Collado v Jiacono, 126 A.D.3d 927 [2d Dept 2014]), citing Scott v Long Is. Power Auth., 294 A.D.2d 348, 348 [2d Dept 2002]; see Chimbo v Bolivar, 142 A.D.3d 944 [2d Dept 2016]; Bravo v Vargas, 113 A.D.3d 579 [2d Dept 2014]).
"[T]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" (Ayotte v Gervasio, 81 N.Y.2d 1062, 1063 [1993], citing Alvarez v Prospect Hospital, 68 N.Y.2d 320 [1986]; see Schmitt v Medford Kidney Center, 121 A.D.3d 1088 [2d Dept 2014]; Zapata v Buitriago, 107 A.D.3d 977 [2d Dept 2013]). Once a prima facie demonstration has been made, the burden shifts to the party opposing the motion to produce evidentiary proof, in admissible form, sufficient to establish the existence of a material issue of fact which requires a trial of the action (Zuckerman v City of New York, 49 N.Y.2d 557 [1980]). The burden is on the party moving for summary judgment to demonstrate the absence of a material issue of fact. Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see Gilbert Frank Corp. v. Federal Ins. Co., 70 N.Y.2d 966 [1988]; Winegrad v. New York Med. Ctr., 64 N.Y.2d 851 [1985]).
HBTC and Santoro
Plaintiff s cross motion for summary judgment as to defendants HBTC and Santoro must fail.
In Rosa v. Colonial Transit Inc., plaintiff was injured when it collided with a stopped school bus,(Rosa v. Colonial Transit Inc., 276 A.D.2d 781 [2d Dept 2000]). The bus was stopped at the time of the accident and moved for summary judgment. (Id.) The court found that "Although a rear-end collision with a stopped vehicle creates a prima facie case of liability with respect to the operator of the moving vehicle a triable issue of fact exists as to whether the driver of the stopped bus... contributed to the accident by making a sudden stop.'' (Id.)
Here, similar to the school bus in Rosa, it is undisputed that both HBTC and Santoro were stopped prior to any impact. Unlike the school bus in Rosa, Plaintiff has failed to raise a triable issue of fact as to whether either of these defendants caused this accident by their own negligence. Therefore, HBTC and Santoro's motion/cross-motion for summary judgment as to liability against the Plaintiff is granted.
Rosato
Plaintiffs cross motion for summary judgment as to defendant Rosato must be granted.
In Bournazos v. Malfitano, align closely with the facts of this case, three vehicles were involved in a motor vehicle accident. (Bournazos v. Malfitano, 275 A.D.2d 437 [2d Dept 2000]) The first car came to a full stop due to a malfunction. (Id.). The second and third cars dispute what occurred next. The third car asserts the second car came into contact with the first before it came into contact with the second. (Id.) The second car asserts that it was stopped before the third car came into contact with it, which subsequently caused it's collision with the first car. The third car failed to dispute that the second car was stopped before it came into contact with the second car. The court held that the second car established their entitlement to summary judgment. (Id at 438) The court reasoned the evidence was undisputed that the second car was stopped before it was struck in the rear (Id.). Therefore, it was the third car's burden to rebut the inference of its own negligence created by the rear-end collision, or to demonstrate that negligence on the part of the second car contributed to the collision between the two. (Id.) The court held, whether or not the second vehicle struck the first vehicle before the collision between the second and third car was irrelevant in determining the third car's liability. (Id.)
Here, Rosato is akin to the third car in Bournazos. Rosato has not asserted that the Plaintiff was not stopped, but rather that prior to Rosato's contact with the Plaintiffs car she "heard" Plaintiffs car collide with HBTC's vehicle. Similar to the holding in Bornazos this Court finds the Plaintiff has not rebutted the presumption of its own negligence. Therefore, the Plaintiff s motion for summary judgment as to Rosato's liability is granted. Therefore it is,
ORDERED, that based on the foregoing, defendant HBTC's motion and defendant Santoro's cross motion under CPLR 3212 is granted in its entirety and it is further, ORDERED, that the branch of Plaintiffs cross motion under CPLR 3212 is granted as it relates to defendant Rosato and denied as it relates to defendant's HBTC and Santoro; and it is further
ORDERED, that upon the completion of discovery on the issue of damages, the filing of a Note of Issue, along with the associated fees this matter shall proceed to trial solely on the issue of damages.
The foregoing constitutes the decision and Order of this Court.