Opinion
No. 15550/2012.
02-27-2017
Jayna–Lee NAVARRO, an Infant under the age of fourteen (14) years, by her Mother and Natural Guardian, Evelyn VEGA, and Samantha Cruz, Plaintiffs, v. Nathaniel D. BUTLER, "John Doe", Ashley Collazo and Samuel A. Vega, Defendants.
The following papers numbered 1 to 21 read on this motion by defendants, ASHLEY COLLAZO and SAMUEL A. VEGA, for an order pursuant to CPLR 3212 granting summary judgment in favor of defendants ASHLEY COLLAZO and SAMUEL A. VEGA and dismissing the complaint and any cross-claims filed against them; and on this cross-motion by plaintiff JAYNA–LEE NAVARRO, AN INFANT UNDER THE AGE OF FOURTEEN (14) YEARS, BY HER MOTHER AND NATURAL GUARDIAN, EVELYN VEGA, for an Order pursuant to CPLR 3124 and 3126, dismissing defendants' answers and/or compelling defendants to appear for depositions:
| Papers | Numbered |
|---|---|
| Notice of Motion–Affirmation–Exhibits | 1–4 |
| Notice of Cross–Motion–Affirmation–Exhibits | 5–8 |
| Infant Plaintiff's Affirmation in Opposition–Exhibits | 9–11 |
| Affirmation in Opp. to Cross–Motion & Reply–Exhibits | 12–14 |
| Butler's Affirmation in Opposition–Exhibits | 15–17 |
| Reply Affirmation | 18–19 |
| Plaintiff's Reply Affirmation | 20–21 |
This is a personal injury action in which infant plaintiff seeks to recover damages for injuries allegedly sustained as a result of a motor vehicle accident that occurred on July 28, 2010, on South Conduit Boulevard at or near its intersection with Forbell Street, in Kings County, New York.
At the time of the accident, infant plaintiff was a passenger in the vehicle owned by defendant Samuel A. Vega and operated by defendant Ashley Collazo (the Collazo vehicle). Collazo alleges that the accident occurred when the vehicle owned by co-defendant Nathaniel D. Butler (the Butler vehicle) sideswiped the Collazo vehicle. The Butler vehicle left the scene of the accident.
Plaintiffs commenced this action by filing a summons and complaint on July 12, 2012. Defendants Vega and Collazo joined issue by service of an answer dated November 2, 2012. Defendant Butler joined issue February 6, 2013. Plaintiffs filed a Note of Issue on June 2, 2016. A So–Ordered Stipulation dated July 25, 2016 extended the time to move for summary judgment to October 31, 2016. Defendants Vega and Collazo now timely move for summary judgment on the grounds that Collazo bears no liability for the happening of the accident and, as such, the complaint and all cross-claims asserted against her and Vega should be dismissed.
In support of the motion, counsel for defendants Vega and Collazo, John R. Ferretti, Esq., submits his own affirmation, a copy of the pleadings, a copy of the plaintiff's bill of particulars, a copy of the Note of Issue, a copy of the So–Ordered Stipulation dated July 25, 2016, a copy of the Police Accident Report (MV–104AN), an affidavit from Collazo, and copies of the transcripts of the examinations before trial of infant plaintiff and Evelyn Vega.
The accident description portion of the police report states:
"At T/P/O, driver of V1 (Collazo) states V2 (Butler) was driving erratically & sideswiped her while traveling S/B on the Conduit Blvd. V1 then crashed into the guard rail. V2 left scene."
Collazo affirms in her affidavit that at the time of the accident she was operating the vehicle with Vega's permission. Infant plaintiff was a rear seated passenger. She was traveling southbound in the right lane when the driver's side front quarter panel and driver's side door of her vehicle was struck by another vehicle. The contact caused her vehicle to be pushed to the right, striking the guardrail that runs along the right side of South Conduit Boulevard. The vehicle that contacted her vehicle, left the scene of the accident. A plate number was obtained and was found to be the plate number for a vehicle owned by Butler. At the time of the accident, she was driving within the speed limit and was in full control of the vehicle until it was struck by the Butler vehicle.
At her examination before trial, held on June 30, 2016, infant plaintiff testified that at the time of the subject accident, she was seated in the rear on the driver's side. Her sister, Collazo, was operating the vehicle in the right lane going straight. They were traveling within the speed limit. She did not see Collazo do anything improper as she was driving down the street. After the contact occurred to the driver's side of the Collazo vehicle, the Collazo vehicle moved to the right, mounted the curb, and struck the guardrail. She did not see the Butler vehicle prior to the accident.
Counsel for defendants Vega and Collazo contends that based on the deposition testimony and Collazo's sworn affidavit, Collazo bears no liability for causing the subject accident. Counsel claims that the sole proximate cause of the accident was the actions of the Butler vehicle when it sideswiped the Collazo vehicle. Counsel argues that the sworn affidavit of Collazo indicates that she was traveling lawfully within the right lane at a safe rate of speed and that her actions were not negligent as a matter of law.
Charles J. Bilello, Esq., counsel for infant plaintiff, opposes the motion on the ground that the motion is premature as none of the defendants have been deposed. Counsel further contends that the deposition of infant plaintiff taken when she was seven years old is insufficient to establish that Collazo was properly operating the vehicle. Counsel also cross moves to compel defendants to comply with prior Court Orders. Specifically, counsel contends that the So–Ordered Stipulation directed defendants to appear for depositions on September 8, 2016. The depositions were rescheduled for September 26, 2016, November 11, 2016, and again were rescheduled for January 9, 2017. Defendants' depositions are currently pending for March 13, 2017. Infant plaintiff failed to demonstrate that the failure to appear at the scheduled depositions was willful and contumacious, or even that it was defendants' fault.
Chris M. Hatzis, Esq., counsel for Butler also opposes the motion stating that issues of fact remain as defendants have not been deposed.
The proponent of a summary judgment motion must tender evidentiary proof in admissible form eliminating any material issues of fact from the case. If the proponent succeeds, the burden shifts to the party opposing the motion, who then must show the existence of material issues of fact by producing evidentiary proof in admissible form, in support of his or her position (see Zuckerman v. City of New York, 49 N.Y.2d 557 [1980] ).
Collazo established her prima facie entitlement to judgment as a matter of law through the submission of her sworn affidavit indicating that she was lawfully proceeding southbound in the right lane when the Butler vehicle sideswiped the driver's side of her vehicle, causing her vehicle to strike the guardrail.
Having made the requisite prima facie showing of entitlement to summary judgment, the burden then shifted to the non-moving parties to raise a triable issue of fact as to whether Collazo was also negligent, and if so, whether that negligence contributed to the happening of the accident (see Goemans v. County of Suffolk, 57 AD3d 478 [2d Dept.2007] ).
In opposition to Collazo's prima facie showing, infant plaintiff and Butler have failed to raise any material questions of fact as to whether Chung was negligent. Neither infant plaintiff nor Butler submitted deposition testimony or a factual affidavit in opposition to the motion, and, as such, failed to provide evidence sufficient to raise a triable question of fact (see Bernier v. Torres, 79 AD3d 776 [2d Dept.2010] ; Lampkin v. Chan, 68 AD3d 727 [2d Dept.2009] ; Cavitch v. Mateo, 58 AD3d 592 [2d Dept.2009] ; Garner v.. Chevalier Transp. Corp, 58 AD3d 802 [2d Dept.2009] ; Kimyagarov v. Nixon Taxi Corp, 45 AD3d 736 [2d Dept.2007] ; Gomez v. Sammy's Transp., Inc., 19 AD3d 544 [2d Dept.2005] [the defendants failed to raise a triable issue of fact by only interposing an affirmation of their attorney who lacked knowledge of the facts] ). Further, the lack of disclosure does not excuse the failure of the party with personal knowledge, Butler, to submit an affidavit in opposition to the motion (see Rainford v. Han, 18 AD3d 638 [2d Dept.2005] citing Niyazov v. Bradford, 13 AD3d 501 [2d Dept.2004] ).
Lastly, the argument that the motion for summary judgment is premature is without merit. Butler himself has personal knowledge of the relevant facts, but failed to submit an affidavit or deny the accuracy of Collazo's affidavit. Additionally, the non-moving parties fail to offer any evidentiary basis to suggest that discovery may lead to relevant evidence. The mere hope and speculation that evidence sufficient to defeat the motion might be uncovered during discovery is an insufficient basis upon which to deny the motion (see CPLR 3212[f] ; Medina v. Rodriguez, 92 AD3d 850 [2d Dept.2012] ; Hanover Ins. Co. v. Prakin, 81 AD3d 778 [2d Dept.2011] ; Essex Ins. Co. v. Michael Cunningham Carpentry, 74 AD3d 733 [2d Dept.2010] ; Peerless Ins. Co. v. Micro Fibertek, Inc ., 67 AD3d 978 [2d Dept.2009] ; Gross v. Marc, 2 AD3d 681 [2d Dept.2003] ).
Thus, as the evidence in the record demonstrates that there are no triable issues of fact as to whether the moving defendants may have borne fault for the causation of the accident, and based on the foregoing, it is hereby,
ORDERED that the motion of defendants, ASHLEY COLLAZO and SAMUEL A. VEGA, for summary judgment on the issue of liability is granted, and the defendants, ASHLEY COLLAZO and SAMUEL A. VEGA, shall have summary judgment dismissing the plaintiff's complaint and all cross-claims as against defendants ASHLEY COLLAZO and SAMUEL A. VEGA only; and it is further
ORDERED, that plaintiff JAYNA–LEE NAVARRO, AN INFANT UNDER THE AGE OF FOURTEEN (14) YEARS, BY HER MOTHER AND NATURAL GUARDIAN, EVELYN VEGA's cross-motion is denied; and it is further
ORDERED, that defendant NATHANIEL D. BUTLER shall appear for an examination before trial on March 13, 2017.