Opinion
Index 604559/2017 605380/2017
01-29-2021
NICOLE LANGONA, Plaintiff, v. VILLAGE OF GARDEN CITY, TOWN OF HEMPSTEAD, COUNTY OF NASSAU, AND INCORPORATED VILLAGE OF GARDEN CITY Defendants. ALYSSA ANDINO, Plaintiff, v. NICOLE LANGONA, KIMBERLY LANGONA, VILLAGE OF GARDEN CITY, TOWN OF HEMPSTEAD, COUNTY OF NASSAU, AND INCORPORATED VILLAGE OF GARDEN CITY Defendants. Motion Seq. No. 005
HON. THOMAS RADEMAKER, JSC
UNPUBLISHED OPINION
DECISION AND ORDER
HON. THOMAS RADEMAKER, JSC
The matters at bar involve claims made by the driver and passenger of a motor vehicle operated by the Defendant Nicole Langona (hereinafter "Defendant Langona") in which it is alleged that, on March 21, 2016, at approximately:45 pm, Defendant Langona's Jeep encountered a roadway defect on Clinton Avenue in Garden City, New York, which caused her to lose control of her motor vehicle leave the roadway, and strike a tree in front of 30 Clinton Street, Garden City, New York, Both Defendant Langona, who is the plaintiff in action number one, and her passenger Alyssa Andino, the plaintiff in action number two (hereinafter "Plaintiff Andino"), allege that the County of Nassau -which owned and controlled the roadway in question - caused and created a roadway defect through "negligent design, maintenance, control and paving of the subject roadway," and that such roadway defect caused the plaintiffs' single vehicle accident. In addition to her road design claims against the County of Nassau, Plaintiff Andino further alleges that Defendant Langona operated the motor vehicle in at an excessive speed and in negligent manner, arid that the Defendant Langona's operation of said vehicle was also a pause of the: parties' accident. The parties' actions were joined for joint trial.
In a prior motion, the Court struck the County's answer and precluded the County from offering evidence at trial (Decision and Order dated June 28, 2018). Nassau appealed the Court's Order and: a determination by the Appellate Division is sending. Actions against the Town of Hempstead and Village of Garden City, previously n&med defendants, have already been dismissed. The movant herein is counsel for the defendants Nicole and Kimberly Langona in action #2, who seek summary judgment in their favor based upon the striking of the Defendant County of Nassau's Answer and the Court's preclusionary Order.
Under the law of the case doctrine, a party may not re-litigate an issue that has already been resolved in a particular proceeding. (Haibi v Haibi, 171 A.D.2d 842 [2nd Dept 1991]; Baron v Baron, 128 A.D.2d 821 [2nd Dept 1987]; DK v MTK, 52 Misc.3d 865 [Richmond County Sup Ct. 2016]).The County of Nassau has not offered proof that the instant matter was stayed by the Appellate Division, and as such, the Court will move forward with the matter, subject to its prior Decision and Order, with the County of Nassau's Answer being stricken, and the County's affirmative defenses and counter-claims subject to preclusion.
The proponent of a summary judgment motion rnust 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. Failure to make such prima facie showing requires denial of the motion, regardless of the sufficiency of the opposing papers, (Alvarez v. Hosp., 68 N.Y.2d 320, 324 [1986]).
Qnce prima facie entitlement has been established, in order to defeat the motion, the opposing party must "assemble, lay bare, and reveal his [or her] proofs in order to show his [or her] defenses are real and capable of being established at trial ... and it is insufficient to merely set forth averments of factual or legal conclusions." (Genger v. Genger, 123 A.D.3d 445, 447 [1stDept 2014]; quoting Schiraldi v U.S. Min. Prods, 194 A.D.2d 482, 483 [1st Dept 1993]). If there is any doubt as to the existence of a triable fact, the motion for summary judgment must be denied. (Rotuba Extruders v Ceppos, 46 N.Y.2d 223, 231 [1978]).
The striking of the County of Nassau's Answer has the effect of deeming the "allegations in the complaint, including the basic allegation of liability, Admitted by the Defendant." As a result of haying their answer stricken, the County of Nassau was deemed to admit all traversable allegations in the complaint, including the basic allegation of liability (see Almonte v Pichardo, 105 A.D.3d 687, 688 [2nd Dept 2013]; Wilson v Galicia Contr. & Restoration Corp., 10 N.Y.3d at 830; Curiale v Ardra Ins, Co., 88 N.Y.2d 268, 269, 667 N.E.2d 313, 644 N.Y.S.2d 663 [1996]; Rokina Opt. Co. v Camem King, 63 N.Y.2d 728, 730, 469 N.E.2d 518, 480 N.Y.S.2d 197 [1984]).
Through the striking of its Answer, the County of Nassau is deemed to have admitted that its act of negligence created or caused the alleged defective condition; (Parks v Hutchins, 162 A.D.2d 666, aff'd 78 N.Y.2d 1049 [1991][negligent construct on of roadway constitutes exception to prior written notice requirement]).
However, there remains a question of fact as to whether the defendant driver is also tortiously responsible for the accident, notwithstanding the alleged existence of a roadway design defect. There may be more than one proximate cause of an accident. (Argentina v Emery Worldwide, 93 N.Y.2d 554 [1999]; Nunez v. Recreational Rooms, 229 A.D.2d 539 [1st Dept 1996]; Mohammed v City of New York, 205 A.D.2d 415 [1st Dept 1994]).
The Plaintiff Andino contends in her opposition to summary judgment that the driver of the motor vehicle has some culpability with respect to the accident, including the driver's alleged negligent operation of the 2016 Jeep vehicle at an excessive speed immediately prior to the vehicle's encounter with the roadway condition at issue.
Given the factual issues raised in the papers submitted, the movant's motion for summary judgment is DENIED.
This constitutes the Decision and Order of the Court.