Opinion
Index 2017-50347
01-22-2019
GREGORY GALES, Plaintiff, v. JUDITH A. CATUCCI and JOSEPH M. CATUCCI, Defendants.
Sobo & Sobo, LLP John A. Del Duco I I I, Esq. Attorneys for Plaintiff One Dolson Avenue Law Office of Thomas K. Moore Alyson M. Piscitelli, Esq. Attorneys for Defendants
Unpublished Opinion
Sobo & Sobo, LLP John A. Del Duco I I I, Esq. Attorneys for Plaintiff One Dolson Avenue
Law Office of Thomas K. Moore Alyson M. Piscitelli, Esq. Attorneys for Defendants
DECISION AMD ORDER
PETER M. FORMAN, JUDGE
The Court read and considered the following documents upon this motion:
PAPERS NUMBERED
NOTICE OF MOTION . ......................
AFFIRMATION . ........................
EXHIBITS ............................
3-9
AFFIRMATION IN OPPOSITION ..............
EXHIBIT . ............................
REPLY AFFIRMATION . .....................
By way of background, this is an action to recover damages for personal injuries allegedly sustained by the plaintiff as a result of an accident which occurred on February 5, 2016. The collision between plaintiff's bicycle and defendants' vehicle occurred at the intersection of Maple Street and North Grand Avenue in Poughkeepsie, New York.
Defendants have moved for summary judgment dismissing this action, on the grounds that they are not liable for the accident as a matter of law. For the reasons stated herein, that motion is denied.
Defendants have also moved for a trial preference, on the grounds that Judith C. Catucci has reached the age of seventy years. For the reasons stated herein, that motion is granted.
DISCUSSION
On a motion for summary judgment, the test to be applied is whether triable issues of fact exist or whether on the proof submitted judgment can be grantee to a party as a matter of law (see Andre v. Pomeroy, 35 N.Y.2d 361 [1974]). The movants must set forth a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issue of fact (see Alvarez v. Prospect Hospital, 68 N.Y.2d 320 [1986]). Once the movants set forth a prima facie case, the burden of going forward shifts to the opponent of the motion to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact (see Zuckerman v. City of New York, 4 9 N.Y.2d 557 [1980]).
In support of their motion, defendants submit the deposition transcripts of plaintiff Gregory Gales and defendant Judith A. Catucci.
Plaintiff testified that the traffic light controlling the intersection where the accident occurred was green when he first saw it (see Deposition of Plaintiff at p 46 lines 17-19) . From the point that he first saw the green light up and until the point of the accident, plaintiff testified that he kept the traffic light under continual observation (see Deposition of Plaintiff at p 46 lines 20-24). Plaintiff testified that the light remained green, until the point he was "about to go right under it", then it turned yellow (see Deposition of plaintiff at pp 46-47 lines 25, 2-4).
Defendant Judith A. Catucci testified that when she first observed the traffic light at issue, she was approximately five to six car lengths away and it was green (see Deposition of Defendant Judith A. Catucci at p 19 lines 13-16). Mrs. Catucci testified that the light remained green up and until the time of the accident (see Deposition of Defendant Judith A. Catucci p 49 lines 17-20) . Upon further questioning, the defendant re-affirmed her testimony concerning the color of the traffic light by proclaiming that "...I definitely had a green light" (see Deposition of Defendant Judith A. Catucci at p 52 lines 19-20)
It is well established that the court's role in determining summary judgment motions is issue finding, not issue determination (see Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395 [1957] reargument denied by 3 N.Y.2d 941). Since summary judgment is a drastic remedy, it should not be granted where there is any doubt as to the existence of a triable issue (see Rotuba Extruders, Inc. v. Ceppos, 46 N.Y.2d 223 [1978]). Thus, when the existence of an issue of fact is even arguable or debatable, summary judgment should be denied (see Stone v. Goodson, 8 N.Y.2d 8 [1960] reargument denied by 8 N.Y.2d 934). It is not the court's function on a motion for summary judgment to assess credibility (see Brown v. Kass, 91 A.D.3d 894 [2nd Dept 2012]). Summary judgment is inappropriate where triable issues of fact or credibility are raised (id.).
Here, the defendants have failed to make a prima facie demonstration that they are entitled to summary judgment. Specifically, the conflicting deposition testimony of the plaintiff and the defendant Judith Catucci require an assessment of credibility to determine which party had the green light at the time of the accident (see Napolitano v. Sanderson, 2018 NY Slip Op 08943 [2nd Dept 2018]; Chuachingco v. Christ, 132 A.D.3d 798 [2nd Dept 2015]). Therefore, defendants' motion for summary judgment is denied without the need to consider the sufficiency of plaintiff's opposition papers (see generally Coscia v. 938 Trading Corp., 283 A.D.2d 538 [2nd Dept 2001]).
Defendants also move for an order, pursuant to CPLR 3403(a)(4), for a special trial preference because defendant Judith Catucci is more than seventy years of age. Specifically, CPLR 3403(a) (4) states that an ac;ion "shall be entitled to a preference" when a party is 70 years of age or older. Given that the Legislature's use of the imperative "shall" is mandatory, not permissive, this court lacks any discretion when deciding a motion for a trial preference based upon the age of the parties (see Campbell v. Kelly, 42 A.D.2d 601 [2nd Dept 1973]; Cruz v. Integrated Health Admin. Servs., Inc., 56 Misc.3d 654 [Sup Ct., Queens County 2017]). Based upon the foregoing, it is hereby
ORDERED, that Defendants' motion for summary judgment is denied; and it is further ORDERED, that Defendants' motion for a trial preference is granted; and it is further
ORDERED, that counsel for all parties shall appear for a pretrial conference on March 4, 2019 at 9:30 a.m.
This constitutes the Decision and Order of the Court.