Opinion
No. 516654/2022 Cal. Nos. 23 24 Ms. Nos. 2 3
09-30-2024
SHEVON GARDINER, Plaintiff, v. AMERICAN UNITED TRANSPORTATION, CORP, and MOHAMED RASEL SHEIKH, Defendants.
Unpublished Opinion
Oral Argument: 9/5/2024.
DECISION & ORDER
HONORABLE FRANCOIS A. RIVERA, J.S.C.
Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of motion filed on January 30, 2024, under motion sequence number two, by Shevon Gardiner (hereinafter plaintiff) for an order pursuant to CPLR 3212 granting plaintiff summary judgment as to liability as against the defendants American United Transportation Corp, and Mohamed Rasel Sheikh and striking defendants' affirmative defenses of comparative negligence and/or culpable conduct. The motion is opposed by cross-motion filed under motion sequence number three.
-Notice of motion
-Affirmation in support Exhibits 1-5
-Statement of material facts
Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of cross-motion filed on February 23, 2024, under motion sequence number three, by defendants American United Transportation Inc. i/s/h/a American United Transportation Corp, (hereinafter AUT) and Rasel Sheikh (hereinafter collectively defendants) for an order pursuant to CPLR 3212 and CPLR 3211 (a) granting summary judgment and dismissal in favor of defendants.
-Notice of cross-motion
-Affirmation in support Exhibits A-E
-Statement of material facts
BACKGROUND
On June 9, 2022, plaintiff commenced the instant action for damages for personal injury by filing a summons and verified complaint with the Kings County Clerk's office (KCCO). On October 26, 2022, the defendants interposed and filed a joint verified answer with the KCCO. On December 1, 2023, the plaintiff filed a note of issue.
The verified complaint and plaintiff's deposition testimony allege the following salient facts. On May 15, 2021, plaintiff was operating a motor vehicle and traveling on Lenox Road, a one-way street toward East 96th Street. Plaintiff stopped at a stop sign on Lenox Road and then slowly proceeded into the intersection. Prior to reaching the comer of East 96th Street, the plaintiff was traveling at approximately five miles per hour and intended to turn left on 96th Street. The accident occurred at the intersection of East 96th Street when a vehicle owned by defendant American United Transportation Corp, and operated by defendant Mohammed Rasel Sheikh coming from the left of the plaintiff struck the plaintiff's vehicle. As a result of the impact the defendants' vehicle caused plaintiff's vehicle to be pushed. The entire front of the plaintiff's vehicle caved in because of the impact. The front of the other vehicle was damaged. The collision was caused by defendant Sheikh's negligent operation of his vehicle. The collision caused the plaintiff to sustain serious physical injury.
LAW AND APPLICATION
Plaintiff's motion for summary judgment
It is well established that summary judgment may be granted only when it is clear that no triable issue of fact exists (Alvarez v Prospect Hospital, 68 N.Y.2d 320 [1986]). The burden is upon the moving party to make a prima facie showing that he or she is entitled to summary judgment as a matter of law by presenting evidence in admissible form demonstrating the absence of material facts (Giuffrida v Citibank, 100 N.Y.2d 72 [2003]).
A failure to make that showing requires the denial of the summary judgment motion, regardless of the adequacy of the opposing papers (Ayotte v Gervasio, 81 N.Y.2d 1062 [1993]). If a prima facie showing has been made, the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of material issues of fact (Alvarez, 68 N.Y.2d at 324).
A plaintiff in a negligence action moving for summary judgment on the issue of liability must establish, prima facie, that the defendant breached 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 Mgt., Inc., 163 A.D.3d 1033, 1033-1034 [2d Dept 2018]; see Rodriguez v City of New York, 31 N.Y.3d 312 [2018]). To be entitled to partial summary judgment a plaintiff does not bear the ... burden of establishing ... the absence of his or her own comparative fault (Rodriguez, 31 N.Y.3d at 324-325).
Pursuant to Vehicle and Traffic Law § 1142(a), a driver entering an intersection controlled by a stop sign must yield the right-of-way to any other vehicle that is already in the intersection or that is approaching so closely as to constitute an immediate hazard (Policart v Wheels LT, 221 A.D.3d 920. 921 [2d Dept 2023], quoting Shvydkaya v Park Ave. BMW Acura Motor Corp.,172 A.D.3d 1130, 1131 [2d Dept 2019]). Asa general matter, a driver who fails to yield the right-of-way after stopping at a stop sign is in violation of Vehicle and Traffic Law § 1142 (a) and is negligent as a matter of law (id., quoting Shvydkaya v Park Ave. BMW Acura Motor Corp., 172 A.D.3d 1130, 1131). The question of whether the driver stopped at the stop sign is not dispositive where the evidence establishes that he or she failed to yield even if he or she did stop (Belle-Fleur v Desriviere, 178 A.D.3d 993, 995 [2d Dept 2019]).
Plaintiff's motion seeking summary judgment, under motion sequence number two, as to liability as against the defendants and to strike defendants' affirmative defenses of comparative negligence and/or culpable conduct is hereby denied as plaintiff failed to eliminate all material issues of fact as to whether the plaintiff was the sole proximate cause of the accident (see Vehicle and Traffic Law § 1142 [a]; see Israel v Nichols, 226 A.D.3d 756 [2d Dept 2024]).
Defendants' motion for summary judgment
Pursuant to the Uniform Civil Term Rules of the Supreme Court, Kings County, a motion for summary judgment must be made no later than 60 days after the filing of the note of issue, unless leave of the court is obtained on good cause shown (see Goldin v New York and Presbyt. Hosp., 112 A.D.3d 578, 579 [2d Dept 2013], citing Kings County Supreme Court Uniform Civil Term Rules, Part C, Rule 6). In the instant matter, the note of issue was filed on December 1, 2023, and plaintiffs motion was filed on February 23, 2024, twenty-four days late.
A movant seeking leave to make a late summary judgment motion must demonstrate good cause for the delay (see CPLR 3212 [a]; Ade v City of New York, 164 A.D.3d 1198, 1200-01 [2d Dept 2018], citing Courtview Owners Corp. v Courtview Holding B.V., 113 A.D.3d 722, 723 [2d Dept 2014]). In the absence of a showing of good cause for the delay in filing a motion for summary judgment, the court has no discretion to entertain even a meritorious, non-prejudicial motion for summary judgment (Bargil Assoc., LLC v Crites, 173 A.D.3d 958, 958 [2d Dept 2019], quoting Bivona v Bob's Discount Furniture of NY, LLC, 90 A.D.3d 796 [2d Dept 2011]). Defendants' crossmotion seeking summary judgment, under motion sequence number three, is hereby denied as untimely. The motion was filed late with no good cause shown.
CONCLUSION
The motion by Shevon Gardiner for an order pursuant to CPLR 3212 granting plaintiff summary judgment as to liability as against the defendants American United Transportation Corp, and Mohamed Rasel Sheikh and striking those defendants' affirmative defenses of comparative negligence and/or culpable conduct is denied.
The cross-motion by defendants American United Transportation Inc. i/s/h/a American United Transportation Corp, and Rasel Sheikh for an order pursuant to CPLR 3212 and CPLR 3211 (a) granting summary judgment in their favor on the issue of liability and dismissing the verified complaint is denied.
The foregoing constitutes the decision and order of this Court.