Opinion
Indecx No. 512494/2018 Motion Sequence No. 2
10-29-2020
JESSICA JEAN-BAPTISTE, Plaintiff. v. SAMANTHA MOGANNA-GOWDA, Defendant,
Unpublished Opinion
PRESENT: HON. CARI. J. LANDICINO, Justice.
DECISION AND ORDER
Recitation, as required by CPLR 2219(a), of the papers considered in the review of this motion:
Papers Numbered (e-file)
Notice of Motion and Affidavits (Affirmations) Annexed................................... 28-35
Opposing Affidavits (Affirmations).................................. 40
Reply Affidavits (Affirmations).................................. 41
After a review of the papers and oral argument, the Court finds as follows:
The instant matter is a personal injury action relating to a motor vehicle accident on March 2, 2016 that occurred at or near the Belt Parkway, New York neat to Exit 11. The Plaintiff, Jessica Jean-Baptiste (hereinafter referred to as the "Plaintiff) was allegedly stopped in traffic and was struck in the rear by the Defendant, Samantha Moganna-Gow'da (hereinafter referred to as the "Defendant"). The Plaintiff now moves (motion sequence #2) for an order, pursuant to CPLR 3212, granting the Plaintiff summary judgment on the issue of liability.
The Defendant opposes the motion (motion sequence #2) arguing that the Plaintiffs motion is procedurally deficient because the Plaintiff failed to annex a copy of the Plaintiff's deposition transcript in her papers. The Defendant also argues that summary judgment is too drastic a remedy to grant under the circumstances presented.
The Plaintiff in reply, argues that the Plaintiffs failure to annex a copy of the Plaintiff's deposition transcript was a clerical error, and the Defendant's deposition transcript was efiled twice instead of the Plaintiffs deposition transcript. The Plaintiff annexed a copy of the Plaintiff s deposition transcript to her Reply.
Summary judgment is a drastic remedy (hat deprives a litigant of his or her day in court, and it 'should only be employed when there is no doubt as to the absence of triable issues of material fact." Kolivas v. Kirchoff, 14 A.D.3d 493 [2d Dept 2005], citing Andre v. Pomeroy, 35 N.Y.2d 361, 364, 362 N.Y.S.2d 1341, 320 N.E.2d 853 [1974]. The proponent for summary' judgment must make a prima facie showing of entitlement to judgment as a matter of law. tendering sufficient evidence to demonstrate absence of any material issues of fact. See Sheppard-Mobley v. King, 10 A.D.3d 70, 74 [2d Dept 2004], citing Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 324, 508 N.Y,S.2d 923, 501 N.E.2d 572 [1986], Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853,487 N.Y.S.2d 316, 476 N.E.2d 642 [1985]. "In determing a motion for summary judgment, evidence must be viewed in the light most favorable to the nonmoving party, and all reasonable inference must be resolved in favor of the nonmoving party .Adams v. Bruno, 124 A.D.3d 566, 566, 1 N.Y.S.3d 280, 281 [2d Dept 2015] citing Valentin v. Parisio, 119 A.D.3d 854, 989 N.Y.S.2d 621 [2d Dept 2014]; Escobar v. Velez, 116 A.D.3d 735, 983 N.Y.S.2d 612 [2d Dept 2014].
Once a moving party has made a prima facie showing of its entitlement to summary judgment, "the burden shifts to the opposing party to produce evidentiary' proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action," Graham & Han Real Estate Brokers v. Oppenheimer, 148 A.D.2d 493 [2d Dept 1989]. Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers. See Demshick v. Cmty Hous. Mgmt. Corp., 34 A.D.3d 518, 520, 824 N.Y.S.2d 166. 168 12d Dept 2006]; see Menzel v. Plotnick, 202 AD 558, 558-559, 610 N.Y.S.2d 50 [2d Dept 1994).
"When a defendant operates a vehicle that strikes another vehicle in the rear, the defendant is subject to a presumption that he or she was negligent in failing to keep a safe distance between the vehicles, although such presumption may be overcome by the presentation of evidence sufficient to rebut the inference of negligence (AW Karakostas v. Rent A Car Sys., 301 A.D.2d 632, 756 N.Y.S.2d 61; 101 Reed v. Hew York City Tr. Auth., 299 A.D.2d 330,749 N.Y.S.2d 91; Leal v. Wolff, 224 A.D.2d 392, 638 N.Y.S.2d 110)." Abramov v. Campbell, 303 A.D.2d 697,697-98,757 N.Y.S.2d 100, 100-01 [2d Dept., 2003].
As it relates to the issue of the Plaintiff s deposition, the Court has the discretion to view documents within the record to determine a motion, pursuant to CPLR 2214. Nationstar Mortgages, LLC v. Bailey, 175 A.D.3d 697, 108 N.Y.S.3d 141 [2d Dept 2019]. Additionally, the deposition transcript, as filed, indicates that it was served by the Defendant upon the Plaintiff. As such, the Defendant has suffered no prejudice. Therefore, based on the evidence, the Plaintiff has met her prima facie burden. This is because "[a| rear-end collision with a stopped or stopping vehicle creates a prima facie case of negligence against the operator of the rear vehicle, thereby requiring that operator to rebut the inference of negligence by providing a non-negligent explanation for the collision." Klopchin v. Masri, 45 A.D.3d 737, 737, 846 N.Y.S.2d 311,311 [2d Dept 2007], No such evidence was presented by the Defendant to rebut the Plaintiff's prima facie showing. Consequently, the Plaintiffs motion (motion sequence #2) is granted. The Plaintiff is awarded summary judgment on the issue of liability in that the Defendant was negligent and the sole proximate cause of the accident. The matter shall proceed on the issue of damages.
It is hereby ordered:
Motion Sequence #2 is granted, the Plaintiff is awarded summary judgment on the issue of liability in that the Defendant was negligent and the sole proximate cause of the accident. The matter shall proceed on the issue of damages.
This constitutes the Decision and Order of the Court.