Opinion
Index 17-615035
01-21-2020
JAMES MAROLDA, Plaintiff, v. JEFFREY H. KREINCES, Defendant.
MICHAEL G. LORUSSO, P.C. Attorney for Plaintiff. LAW OFFICE OF ANDREA Q. SAWYERS Attorney for Defendant.
Unpublished Opinion
MOTION DATE 8-12-19
MOTION DATE 9-5-19
ADJ. DATE 9-5-19
MICHAEL G. LORUSSO, P.C. Attorney for Plaintiff.
LAW OFFICE OF ANDREA Q. SAWYERS Attorney for Defendant.
PRESENT: Hon. JOSEPH FARNETI, J.
Hon. Joseph Farneti, Acting Justice.
Upon the following papers read on the e-filed motions for summary judgment and to vacate the note of issue: Notice of Motion/Order to Show Cause and supporting papers by plaintiff, dated July 17, 2019; by defendant July 24, 2019; Notice of Gross Motion and supporting papers; Answering Affidavits and supporting papers by plaintiff, dated July 26, 2019; by defendant, dated August 22, 2019; Replying Affidavits and supporting papers by plaintiff, dated August 23, 2019; Other __; it is, ORDERED that the motion (seq. #001) by plaintiff, and the motion (seq. #002) by defendant are consolidated for the purposes of this determination; and it is further
ORDERED that the motion by plaintiff for summary judgment in his favor on the issue of defendant's negligence is granted; arid it is further
ORDERED that the motion by defendant Jeffrey Kreinces for an Order vacating the Note of Issue is granted; and it is further
ORDERED that a copy of this Order shall be served oil the Calendar Clerk; and it is further
ORDERED that counsel for the parties shall appear before this Court on February 27, 2020 at 9:30 a.m. for a Compliance Conference.
This is an action to recover damages for injuries allegedly sustained by plaintiff James Marplda as a result of a motor vehicle accident that occurred on March 3, 2017, on Northern State Parkway, at or near Willis Avenue in North Hempstead, New York. Plaintiff s stopped Vehicle allegedly was struck in the rear by a vehicle owned and operated by defendant Jeffrey Kreinces.
Defendant now moves for an Order Vacating the Note of Issue and the Certificate of Readiness for Trial on the ground that the Certificate of Readiness incorrectly indicates that all pretrial discovery, including physical examinations, has been completed, and that no outstanding requests for discovery remain. Defendant contends that plaintiff has neither appeared for a physical examination nor provided certain authorizations. In support Of his motion, defendant submits* among other things, copies of the Note of Issue and the Certificate of Readiness, and the Notice for Discovery and Inspection dated March 26, 2013.
In opposition to defendant's motion, plaintiff contends, in part, that pretrial discovery has been completed with the exception of plaintiff s independent medical examination. He also denies receiving defendant's Notice for Discovery and Inspection dated March 26, 2013. In support of his opposition, plaintiff submits, among other things, copies of a Preliminary Conference Stipulation and Order dated February 7, 2018, a So-Ordered Stipulation dated June 13, 2019, and a Compliance Conference Order dated June 13, 2019.
Plaintiff moves for summary judgment on the issue of defendant's negligence, contending that his vehicle was stopped for traffic when it was struck in the rear by defendant's vehicle. In support of his motion, plaintiff submits, among other things, ; the transcripts of the parties' deposition testimony. In opposition, defendant argues that plaintiff made a sudden stop and failed to observe prevailing traffic conditions at the time of the accident.
On August 6, 2018, plaintiff appeared for an examination for trial. He testified that his vehicle was stopped for traffic at the time of the collision. The vehicle in front of plaintiff s vehicle allegedly was also stopped at the time of the accident. Plaintiff testified that the force of the impact with defendant's vehicle propelled his vehicle into the vehicle in front of it, which caused a chain-reaction accident.
On March 29, 2019, defendant appeared for an examination before trial. He testified that he did not observe traffic ahead of him slow down prior to the collision. According to defendant's testimony, he first observed plaintiff s stopped vehicle at the time of the Collision. He testified that his vehicle was traveling at a; rate of speed of approximately 50 miles per hour prior to the accident. The speed limit on Northern State Parkway near Willis Avenue allegedly was 55 miles per hour. Defendant allegedly did not recall how long plaintiff s vehicle had been stopped for, or whether the impact between the front of his vehicle and the rear of plaintiff s vehicle resulted in plaintiff s vehicle striking another vehicle.
Pursuant to the Compliance Conference Order dated June 13, 2019, plaintiff was directed to file a Note of Issue on of before August 8, 2019. By a So-Ordered Stipulation dated June 13, 2019, plaintiff was also directed to appear for an independent medical examination within 60 days. According to the Court's computerized records, the Note of Issue and the Certificate of Readiness were filed on July 15, 2019. The Certificate of Readiness states that all pretrial discovery, including physical examinations, has been completed. However, it also indicates that plaintiff has hot yet appeared for an independent medical examination.
The Uniform Rules for Trial Courts (22 NYCRR) § 202.21 (e) provides that within 20 days after service of a note of issue and certificate of readiness, any party to the action may move to vacate the note of issue "upon affidavit showing in what respects the case is not ready for trial, and the court may vacate the note of issue if it appears that a material fact in the certificate of readiness is incorrect." In addition, at any time, the court on its own motion may vacate a note of issue if it appears that a material fact in the certificate of readiness is incorrect (see 22 NYCRR § 202.21 [e]). A statement contained in a certificate of readiness indicating that all pretrial discovery has been completed is a material fact, aff'd where such a statement is incorrect, the note of issue should be vacated (see Cioffi v S.M. Foods, Inc., __ A.D.3d __, 2019 NY Slip Op 09250 [2d Dept 2009]; see e.g, Barrett v New York City Health & Hosps. Corp., 150 A.D.3d 949, 55 N.Y.S.3d 318 [2d Dept 2017]; Ferreira v Village of Kings Point, 56 A.D.3d 718, 868 N.Y.S.2d 697 [2d Dept 2008]).
Defendant's motion to vacate the Note of Issue and the Certificate of Readiness is granted. The Certificate of Readiness incorrectly states that ail pretrial discovery, including physical examinations, has been completed (see Young v Destaso Funding, LLC, 92 A.D.3d 778, 938 N.Y.S.2d 476 [2d Dept 2012]; Ferreira v Village of Kings Point, supra; Brown v Astoria Fed. Sav., 51 A.D.3d 961, 858 N.Y.S.2d 793 [2d Dept 2008]). As these, were misstatement of material facts, the filing of the Note of Issue was a nullity, and it must be vacated (see 22 NYCRR § 202.21 [e]; Barrett v New York City Health & Hosps. Corp., supra; Young v Destaso Funding, LLC, supra; Brown v Astoria Fed. Say., supra; Gregory v Ford Motor Credit Co., 298 A.D.2d 496, 748 N.Y.S.2d 507 [2d Dept 2002]).
The Court now turns to plaintiffs motion for summary judgment in his favor on the issue of defendant's negligence. The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law by tendering evidence in admissible form sufficient to eliminate any material issues of fact from the case (see Alvarez v Prospect Hosp,, 68 N.Y.2d 320, 508 N.Y.S.2d 923 [1986]; Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 87 N.Y.S.2d 316 [1985]). The movant has the initial burden of proving entitlement to summary judgment (Winegrad v New York Univ. Med. Ctr., supra). Once the movant demonstrates prima facie entitlement to judgment as a matter of law, the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require atrial of the action (see Vega v Restani Constr, Corp., 18 N.Y.3d 499, 942 N.Y.S.2d 13 [2012]; Alvarez v Prospect Hosp., supra; Zuckerman v City of New York, 49 N.Y.2d 557; 427 N.Y.S.2d 595 [1980]; see also GPLR 3212 [b]). The failure to make a prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers (see Winegrad v New York Univ. Med. Ctr., supra). In deciding the motion, the court must view all evidence in the light most favorable to the nonmoving party (see Matter of New York City Asbestos Litig., 33 N.Y.3d 20, 99 N.Y.S.3d 734 [2019]; Vega v Restani Constr. Corp., supra).
A plaintiff is no longer required to show freedom from comparative fault to establish his or her prima facie entitlement to judgment as a matter of law on the issue of negligence (Rodriguez v City of New York, 31 N.Y.3d 312, 76 N.Y.S.3d 898 [2018]; see Xin Fang Xia v Soft, 111 A.D.3d 823, 2019 NY Slip Op 08248 [2d Dept 2019]; Liu v. Lowe, 173 A.D.3d 946, 102N.Y.S.3d713 [2d Dept 2019]; Catdnzaro v Edery, 172 A.D.3d 995, 101 N.Y.S.3d 170 [2d Dept 2019]). A driver of an automobile approaching another automobile from the rear must maintain a reasonably safe rate of speed and control over his or her vehicle, and exercise reasonable care to avoid colliding with the other vehicle (see Vehicle and Traffic Law § 1129 [a]; Bloechle v Heritage Catering, Ltd, 172 A.D.3d 1294, 101 N.Y.S.3d 424 [2d Dept 2019]; Comas-Bourne v City of New York, 146 A.D.3d 855, 45 N.Y.S.3d 182 [2d Dept 2017]; Schmertzler v Lease Plan US.A., Inc, 137 A.D.3d 1101, 27 N.Y.S.3d 648 [2d Dept 2016]), A rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the operator of the rear vehicle, and thereby requires that operator to rebut the inference of negligence by providing a non-negligent explanation for the collision (see Clements v Giatas, 178 A.D.3d 894, 112 N.Y.S.3d 539 [2d Dept 2Q19]; Ordonez v Lee, 177 A.D.3d 756, 110 N.Y.S.3d 339 [2d Dept 2019]; Gelo v Meehan, 177 A.D.3d 707, 110 N.Y.S.3d 333 [2d Dept 2019]). A non-negligent explanation may include evidence of a mechanical failure, a sudden, unexplained stop of the leading vehicle, an unavoidable skidding on wet pavement, or any other reasonable cause (see Clements v Giatas, supra; Grant v Carrasco, 165 A.D.3d 631, 84 N.Y.S.3d 235 [2d Dept 2018]; Tumminello v City of New York, 148 A.D.3d 1084, 49 N.Y.S.3d 739 [2d Dept 2017]).
Plaintiff established his prima facie entitlement to summary judgment in his favor on the issue of defendant's negligence by demonstrating, prim faice, that plaintiffs vehicle was stopped when it was struck in rear ear by defendant's vehicle (see Clements v Giatas, supra; Morgan v Flippen, 173 A.D.3d 735, 102 N.Y.S.3d 108 [2d Dept 2019]; Auguste v Jeter, 167 A.D.3d 560, 88 N.Y.S.3d 509 [2d Dept 2018]). The parties do not dispute that plaintiff s vehicle was stopped at the time of the subject collision. In opposition, defendant failed to raise a triable issue of fact as to the existence of non-negligent explanation for the collision (see Xin Fang Xia v Soft, supra; Gelo v Meehan, supra; Buchanan v Keller, 169 A.D.3d 989, 991 N.Y.S.3d 252 [2d Dept 2019]). Assuming arguendo that plaintiff s vehicle came to came to a sudden stop, "vehicle stops which are foreseeable under the prevailing traffic conditions, even if sudden and frequent, must be anticipated by the driver who follows" (Catanzaro v Edery, supra at 996, quoting Arslan v Costello, 164 A.D.3d 1408, 1409-1410, 84 N.Y.S.3d 229 [2d Dept 2018]; see Buchanan v Keller, supra; Annan v New York State Off of Menial Health, 165J A.D.3d 1020, 87 N.Y.S.3d 70 [2d Dept 2018]). Absent evidence that defendant maintained a reasonably safe distance and speed behind plaintiffs Vehicle, defendant's claim that plaintiffs vehicle came to a sudden stop is insufficient to preclude summary judgment (see Hackney v Monge, 103 A.D.3d 844, 960 N.Y.S.2d 176 [2d Dept 2013]; Taing v Drewery, 100 A.D.3d 740, 954 N.Y.S.2d 175 [2d Dept 2012]).
Accordingly, the motions by plaintiff and defendant are granted.