Opinion
Index No. 28463/2019E
06-30-2020
EMILY MARTINEZ. Plaintiff, v. JONATHON SANTOS. DANIELS SHARPSMART. INC., ESTRA REMELUS and AMERICAN UNITED TRANSPORTATION INC.. Defendants.
Unpublished Opinion
DECISION AND ORDER
JOHN R. HIGGITT, J.
Upon plaintiffs February 19. 2020 notice of motion and the affirmation, affidavit, and exhibits submitted in support thereof: the April 18. 2020 affirmation in opposition of defendants Remelus and American United Transportation Inc. (''the Remelus defendants"): the May 13. 2020 affirmation in opposition of defendants Santos and Daniels Sharpsmart. Inc., ("the Santos defendants") and the exhibits submitted therewith: and due deliberation: plaintiffs motion for partial summary judgment on the issue of defendants' liability for causing the subject accident is granted in part.
This is a negligence action to recover damages for personal injuries plaintiff allegedly sustained as a result of a motor vehicle accident that occurred on September 14. 2017. In support of her motion plaintiff submitted the pleadings, the police accident report. and her affidavit.
The police report is hearsay; the responding officer did not witness the accident, and the report contains competing exculpatory statements by defendant Sanios and defendant Remelus.
Plaintiff averred that at the time of the accident she was a passenger in the Remelus defendants' vehicle when it was involved in an accident with the Santos defendants' vehicle.
In opposition, the Santos defendants submitted the affidavit of Alan Larose (director of compliance and health &safety for defendant Daniels Sharpsmart. Inc.), authenticating an accident report prepared in the normal course of defendant Daniels Sharpsmart. Inc .business by defendant Santos. In the accident report, defendant Santos describes the accident as follows: he was traveling in the middle lane of 1-95. with no intention of changing lanes, when the Remelus defendants' vehicle tried to cut him off, causing him to press his brake: the Remelus defendants' vehicle then slammed into the front, passenger's side of the Santos defendants' vehicle.
Plaintiffs affidavit failed to establish, prima facie, that one or more of the defendants were negligent in the operation of their respective vehicles. Plaintiff's conclusory affidavit failed to assert any factual averments that would warrant imposing liability against any of the defendants for the subject accident. Therefore, summary judgment on the issue of defendants' liability is inappropriate at this juncture. "[T]he pronouncement in [Garcia v Tri County Ambulette Serv., 282 A.D.2d 206 (1st Dept 2001)][. upon which plaintiff rely,] stands only for the proposition that in motor vehicle negligence actions, an innocent plaintiff is entitled to a determination that [he or] she had no culpable conduct on the issue of liability irrespective of the unresolved issue of a defendant driver[s'] negligence" (Oluwatayo v Dulinayan. 142 A.D.3d 113. 119 11st Dept 1999]). Plaintiffs must still affirmatively establish the negligence (and casual relationship between the negligence and the accident) of al least one defendant (see Campbell v Mincello, ____ A.D.3d____, 123 N.Y.S.3d 493 11st Dept 2020 ]).
Plaintiff did. however, establish that, an "innocent passenger." they are entitled to dismissal of defendants' affirmative defense alleging plaintiff s comparative fault (.see Oluwatayo v Dulinayan, supra).
Accordingly, it is
ORDERED, that the aspect of plaintiffs motion seeking summary judgment on the issue of defendants' liability' is denied; and it is further
ORDERED, that the aspect of plaintiff s motion seeking dismissal of defendants" affirmative defenses alleging plaintiff s comparative fault is granted, and the Santos defendants' first affirmative defense and the Remelus defendants' second affirmative defense are dismissed.
The parties are reminded that a compliance conference has been scheduled before the undersigned on October 2, 2020 at 9:30 a.m. in courtroom 407.
This constitutes the decision and order of the court.