Opinion
Index No. 500552/2020 Sequence No. 1 NYSCEF Doc. No. 17
11-13-2020
CARL CARDILLO Plaintiff, v. JOHN RINALDI Defendant.
Unpublished Opinion
To commence the statutory time period for appeals as of right (CPLR 5513[a]), you are advised to serve a copy of this order, with notice of entry, upon all parties.
DECISION & ORDER
HON. GINA C. CAPONE, J.S.C.
The following papers, numbered 1-9. were read and considered on the plaintiffs motion pursuant to CPLR 3212 for summary judgement.
PAPERS NUMBERED
Notice of Motion/Attorney Affirmation/Exhibits 1-5____ 1-7
Attorney Affirmation in Opposition____ 8
Attorney Affirmation in Reply____ 9
This action arises from a motor vehicle accident that occurred on October 19, 2018. According to the summons and verified complaint, a motor vehicle operated and owned by the defendant. John Rinaldi. came in contact with a vehicle owned and operated by the plaintiff, Carl Cardillo. As a result of the aforesaid contact, the plaintiff contends that he was injured. The plaintiff now moves for summary judgement in his favor on the issue of liability against the defendant.
To establish prima facie entitlement to judgment as a matter of law on the issue of liability, a plaintiff is no longer required to show freedom from comparative fault (see Rodriguez v City of NY.,3\ NY3d 312 [2018]; Lopez v Dobbins, 164 A.D.3d 776, 777 [2d Dept 2018]); Tsyganash v Auto Mall Fleet Mgt., Inc., 163 A.D.3d 1033, 1034 [2d Dept 2018]). "A driver who fails to yield the right of way after stopping at a stop sign controlling traffic is in violation of Vehicle and Traffic Law § 1142 (a) and is negligent as a matter of law. A driver is required to see what is there to be seen, and a driver who has the right of way is entitled to anticipate that the other motorist will obey the traffic law requiring him or her to yield (Laino v Lucchese, 35 A.D.3d 672, 672 [2d Dept 2006]; see Odumbo v Perera, 27 A.D.3d 709 [2d Dept 2006]; Friedberg v Citiwide Auto Leasing, Inc., 22 A.D.3d 522, 523 [2d Dept 2005]; Bongiovi v Hoffman. 18 A.D.3d 686, 687 [2d Dept 2005]; Bolta v Lohan, 242 A.D.2d 356 [2d Dept 1997]." Further, where a defendant driver violates Vehicle and Traffic Law § 1142 (a), a plaintiff driver establishes his or her prima facie entitlement to judgement as a matter of law on the issue of liability by demonstrating that the defendant driver's negligence in failing to yield was the proximate cause of the collision (see Ashby v Estate of Encarnacion, 178 A.D.3d 763 [2d Dept 2019]; Vehicle and Traffic Law §§ 1142[a]; 1172[a]).
In this case, the plaintiff established his prima facie entitlement to judgement as a matter of law on the issue of liability by demonstrating that the defendant's negligence in failing to yield to the plaintiff, who had the right of way, was the proximate cause of the accident. In support of his motion for summary judgement, the plaintiff submitted his affidavit, wherein he attested that at the time of the collision he had the right of way as there was no traffic control device governing his way of travel, and that the defendant whose vehicle was stopped at a stop sign, suddenly accelerated in the plaintiffs direction, hitting the plaintiffs vehicle. The accident happened so suddenly that the plaintiff had no chance to avoid it. The plaintiff also submitted a certified copy of the police accident report, which includes the defendant's statement that he "did not see" the plaintiffs vehicle before turning into the plaintiffs lane of travel. Thus, the defendant's negligent failure to yield resulted in the collision (Ashby, 178 A.D.3d at 764; see Kerolle v Nicholson, 172 A.D.3d 1187, 1188 [2d Dept 2019]; Shvydkaya v Park Ave. BMW Acura Motor Corp., 172 A.D.3d 1130 [2d Dept 2019]; Kraynova v Lowy, 166 A.D.3d 600 [2d Dept 2018]).
In opposition, the defendant failed to raise a triable issue of fact. The defendant's counsel's affirmation in opposition, standing alone, is insufficient to raise a triable issue of fact (see Roche v Hearst Corp., 53 N.Y.2d 767, 769 [1981]; Bentick v Gatchalian, 147 A.D.3d 890, 892 [2d Dept 2017]; CPLR 3212 [b]; Gallo v Jairath, 122 A.D.3d 795, 797 [2d Dept 2014]). The assertions in defendant's counsel's affirmation that the plaintiff may have been speeding or negligent in failing to avoid the impact are speculative and relate to the issue of plaintiff s comparative fault, which does not preclude summary judgment on the issue of liability (see Pivetz v Brusco, 145 A.D.3d 806 [2d Dept 2016]; Lopez v WS Distrib., Inc., 34 A.D.3d 759, 760, [2d Dept 2006]; Ashby, 178 A.D.3d at 765). Furthermore, contrary to the defendant's contention, plaintiffs motion for summary judgement was not premature as the defendant failed to demonstrate that further discovery might lead to relevant evidence or that facts essential to justify the opposition of the motion were exclusively within the knowledge of the plaintiff (see Cajas-Romero v Ward, 106 A.D.3d 850, 852 [2d Dept 2013]; see CPLR 3212 [f]; Interboro Ins. Co. v Clennon, 113 A.D.3d 596 [2d Dept 2014]). Accordingly, it is hereby
ORDERED that the motion of the plaintiff is granted; and it is further
ORDERED that counsel for the parties are directed to appear virtually before the undersigned for a status conference on December 15,2020 at 11:00a.m.
The foregoing constitutes the Order of the Court.