Opinion
Index 70932/2018
08-03-2020
SAM LAWRENCE, Plaintiff, v. NICHOLAS R. DAVID, SUSAN M. DAVID, DEBORAH S. NEEDLE and HOWARD M. NEEDLE, Defendants.
Unpublished Opinion
DECISION & ORDER
Joan B. Lefkowitz, Judge
The following papers (e-filed document nos. 32-43; 46-69) were read on: (1) the motion by the defendants, Deborah S. Needle and Howard M. Needle, for an order granting summary judgment dismissing the complaint insofar as asserts a cause of action against them, together with all cross-claims asserted against them (sequence no. 1); and (2) the cross-motion by the plaintiff for an order granting partial summary judgment on the issue of liability as against the defendants, Nicholas R. David and Susan M David and dismissing said defendants' third affirmative defense alleging comparative negligence contributory negligence, and culpable conduct (sequence no 2)
Motion Sequence No.1
Notice of Motion-Affirmation-Exhibits (A-G)
Affirmation in Opposition (by defendants, Nicholas R. David and Susan M David)
Affirmation in Opposition (by plaintiff)-Exhibits (A-C)
Reply Affirmation
Motion Sequence No.2
Notice of Cross-Motion-Affirmation-Exhibits (A-J) Affirmation in Opposition (by defendants, Nicholas R. David and Susan M David) Reply Affirmation
Upon reading the foregoing papers, it is
ORDERED the motion by the defendants, Deborah S. Needle and Howard M Needle, is granted (sequence no. 1), and so much of the complaint as asserts a cause of action against said defendants is dismissed, together with all cross-claims asserted against them, and the action against the remaining parties is severed; and it is further
ORDERED the cross-motion by the plaintiff is granted (sequence no. 2), and plaintiff is awarded partial summary judgment on the issue of liability and the trial of this matter shall be on the issue of damages only; and it is further
ORDERED the David Defendants' third affirmative defense alleging comparative negligence, contributory negligence, and culpable conduct is dismissed; and it is further
ORDERED the parties to the severed action are hereby referred to the Settlement Conference Part for a settlement conference. Due to the COVID-19 public health emergency, the Clerk of the Settlement Conference Part shall notify the parties of a date, time, and method of the settlement conference.
Plaintiff sues to recover damages for injuries allegedly sustained in a three-vehicle collision that occurred on August 6, 2017, at the intersection of SR 120 and Airport Road in North Castle, New York. The accident allegedly occurred when a motor vehicle operated by the defendant, Nicholas R. David, and owned by the defendant, Susan M. David (David Defendants,, collided with a motor vehicle operated by the plaintiff, propelling the plaintiffs motor vehicle into a motor vehicle operated by the defendant, Deborah S. Needle, and owned by the defendant, Howard M. Needle (Needle Defendants).
Following the completion of discovery, the Needle Defendants move for an order granting summary judgment dismissing so much of the complaint as asserts a cause of action against them, together with all cross-claims (sequence no. 1), and plaintiff cross-moves for an order granting partial summary judgment on the issue of liability as against the David Defendants and dismissing said defendants' third affirmative defense alleging comparative negligence, contributory negligence, and culpable conduct (sequence no. 2).
Motion by the Needle Defendants Sequence No.1
The Needle Defendants established their prima facie entitlement to judgment as a matter of law dismissing the complaint and all cross-claims asserted against them by demonstrating that they were not at fault in the happening of the subject collision (see Thompson v Peacock, 159 A.D.3d 995, 996 [2d Dept 2018]; Victor v Daley, 150 A.D.3d 1307, 1307-1308 [2d Dept 2017]). The evidence submitted demonstrated that the collision with the Needles' vehicle occurred when the vehicle operated by the plaintiff was propelled into the Needles' stopped vehicle after the former vehicle was struck by the vehicle operated by defendant David. The evidence further demonstrated that Needle was "in no position to take any steps to either reasonably foresee or avoid the collision between h[er] automobile and the plaintiff's [automobile]" (Biddy v Vanmaltke, 67 A.D.3d 845, 846 [2d Dept 2009] [internal quotation marks and citations omitted]). Thus, the evidence established that Needless actions were not a proximate cause of the collision (see Victor, 150 A.D.3d at 1308). Accordingly, the burden of going forward shifted to plaintiff and the David Defendants to raise a triable issue of material fact (see Zuckerman v City of New York, 49 N.Y.2d 557, 560, 562 [1980]).
In opposition, plaintiff and the David Defendants failed to raise a triable issue of material fact (see CPLR 3212 [b]). Contrary to their contentions, the evidence did not demonstrate either that Needle operated her motor vehicle negligenlly or that she contributed to the collision between the plaintiffs vehicle and the Davids' vehicle (see Victor, 150 A.D.3d at 1308). Accordingly, the motion by the Needle Defendants is granted.
Cross-Motion by the Plaintiff Sequence No.2
Liability
Plaintiff established his prima facie entitlement to judgment as a matter of law on the issue of liability against the David Defendants by demonstrating that the subject collision occurred when the motor vehicle operated by David lost control and crossed over a double yellow line striking plaintiffs motor vehicle (see VTL 1126 [a]; Ciraldo v County of Westchester, 147 A.D.3d 813, 813-844 [2d Dept 2017]). Accordingly, the burden of going forward shifted to the David Defendants to raise a triable issue of material fact (see Zuckerman v City of New York, 49 N.Y.2d 557, 560, 562 [1980]).
In opposition, the David Defendants failed to raise a triable issue of material fact (see CPLR 3212 [b]). Accordingly, plaintiff is awarded partial summary judgment on the issue of liability.
Comparative Negligence
The court next addresses the branch of plaintiff s cross-motion for an order dismissing the David Defendants' third affirmative defense alleging comparative negligence, contributory negligence, and culpable conduct. Although a plaintiff moving for partial summary judgment on the issue of a defendant's liability need no longer demonstrate the absence of her or his own comparative negligence (see Xin Fang Xia, 177 A.D.3d 823 825 [2d Dept 2019]; Rodriguez v City of New York, 31 N.Y.3d 312 [2018]), "the issue of a plaintiff s comparative negligence may be decided in the context of a summary judgment motion where, as here, the plaintiff moved for summary judgment dismissing a defendant's affirmative defense of comparative negligence" (Poon v Nisanov, 162 A.D.3d 804, 808 [2d Dept 2018]).
Here, plaintiff established his prima facie entitlement to judgment as a matter of law dismissing the David Defendants third affirmative defense relating to the comparative negligence of plaintiff. In opposition, the David Defendants failed to raise a triable issue of material fact. Accordingly, the David Defendants' third affirmative defense is dismissed.