Preval v. Fisher

Full title: JIMS C. PREVAL and JOSHUA L. IRIZARRY, Plaintiffs, v. MICHAEL A. FISHER…

Court: Supreme Court, Orange County

Date published: Sep 28, 2017

2017 N.Y. Slip Op. 33458 (N.Y. Sup. Ct. 2017)

Opinion

Index No. EF002609-2017

09-28-2017

JIMS C. PREVAL and JOSHUA L. IRIZARRY, Plaintiffs, v. MICHAEL A. FISHER and ALEX P. HOLST, Defendants.

HON. CATHERINE M. BARTLETT, A.J.S.C.

Unpublished Opinion

Motion Date: September 7, 2017.

To commence the statutory time period for appeals as of right (CPLR5513[a]),youare advised to serve a copy of this order, with notice of entry, upon all parties.

Present: HON. CATHERINE M. BARTLETT, A.J.S.C.

HON. CATHERINE M. BARTLETT, A.J.S.C.

The following papers numbered 1 to 7 were read on the motion of defendant Alex P. Hoist for summary judgment dismissing the claims against him:

Notice of Motion - Affirmation / Exhibits - Affidavit ...............................1-3

Affirmation in Opposition (Plaintiffs)............................................. 4

Affirmation in Opposition (Fisher)............................................... 5

Reply Affirmations (2)........................................................6-7

Upon the foregoing papers it is ORDERED that the motion is disposed of as follows: This is a personal injury action stemming from a three-car chain collision motor vehicle accident which occurred on September 9, 2016 on Silver Lake Scotchtown Road, at or near its intersection with Stratford Lane in the Town of Wallkill, New York. By affidavit, defendant Alex P. Hoist established that he brought his vehicle (Vehicle #2) safely to a stop behind Plaintiffs' vehicle (Vehicle #1), and was then rear-ended by defendant Michael Fisher (Vehicle #3) and pushed forward into Plaintiffs' vehicle.

Defendant Hoist moves for summary judgment dismissing the claims against him. Plaintiffs and defendant Fisher, tendering only affirmations by counsel, argue that Mr. Hoist has not established prima facie entitlement to judgment as a matter of law, and in any event that because deposition have not taken place the motion is premature.

Concerning motions for summary judgment by the operator of a middle vehicle, like Mr. Hoist, in a multi-vehicle chain collision, the Second Department has held:

In a multi-vehicle, chain reaction accident, when the operator of a vehicle that was propelled into another vehicle by a following vehicle presents evidence that he...was able to safely bring his...vehicle to a stop behind the lead vehicle before being struck in the rear by a following vehicle, that operator has established his...prima facie entitlement to judgment as a matter of law [cit.om.]. Thus, "[i]n chain collision accidents, the operator of the middle vehicle may establish prima facie entitlement to judgment as a matter of law by demonstrating that the middle vehicle was struck from behind by the rear vehicle and propelled into the lead vehicle" (Kuris v. El Sol Contr. & Constr. Corp., 116 A.D.3d 675,676...).

Niosiv. Jones, 133 A.D.3d 578, 579 (2dDept. 2015). See also, Morales v. Amar, 145 A.D.3d 1000,1002 (2d Dept. 2016) (same); Chuk Hwa Shin v. Correale, 142 A.D.3d 518,519 (2d Dept. 2016) (same); Marcellin v. Passaro, 118 A.D.3d 758 (2d Dept. 2014) (same). Hence, Mr. Hoist established prima facie entitlement to summary judgment by demonstrating that he was able to safely bring his vehicle (Vehicle #2) to a stop behind Plaintiffs' vehicle (Vehicle #1) before being rear-ended by defendant Michael Fisher's vehicle (Vehicle #3).

The opponents of the motion have failed to demonstrate the existence of any triable issue of fact, and their contention that Mr. Hoist's motion is premature is unavailing. In Morales v. Amar, supra, 145 A.D.3d 1000 (2d Dept. 2016), which like this case involved a motion for summary judgment by the operator of the middle vehicle in a multi-vehicle chain collision, the Second Department held:

The appellants' contention that the motions should have been denied as premature pursuant to CPLR 3212(f) is without merit. A party who contends that summary judgment is premature is required to demonstrate that discovery might lead to relevant evidence or that the facts essential to justify opposition to the motion were exclusively within the knowledge and control of the movant (see CPLR 3212[f]; Suero-Sosa v. Cardona, 112 A.D.3d 706,708...; Cajas-Romero v. Ward, 106 A.D.3d 850, 852...; Woodward v. Thomas, 11 A.D.3d 738, 740...). Here, the appellants, who relied solely on their attorney's affirmation, failed to set forth either basis, and the "mere hope or speculation that evidence sufficient to defeat a motion for summary judgment may be uncovered during the discovery process is an insufficient basis for denying the motion" (Suero-Sosa v. Cardona, 112 A.D.3d at 708...; see Williams v. Spencer-Hall, 113 A.D.3d 759,760-761; Westportlns. Co. v. Altertec Energy Conservation, LLC, 82 A.D.3d 1207,1212...).

Morales v. Amar, supra, 145 A.D.3d at 1003.

Like parties in Morales, the opponents of Mr. Hoist's motion here rely solely on their attorneys' affirmations. Neither has established that additional discovery might lead to relevant evidence or that the facts essential to justify opposition to the motion were exclusively within Mr. Hoist's knowledge and control of the movant. Defendant Fisher, quite obviously in a position to observe Mr. Hoist in the vehicle immediately preceding him, proffers no evidence that Mr. Hoist was speeding, or that he stopped short, or that he had a broken tail light, or that he rear-ended Plaintiffs' vehicle before Fisher himself rear-ended Mr. Hoist, or that Mr. Hoist engaged in any other negligent conduct. Plaintiffs, for their part, would have known by the sense of hearing and by the sequence of impacts whether Mr. Hoist had first rear-ended them or whether Mr. Fisher rear-ended Mr. Hoist and propelled his vehicle into Plaintiffs' vehicle. Plaintiffs' attorney, on their behalf, asserts only that Mr. Hoist's stopping "an undisclosed length" from Plaintiffs' vehicle gives rise to a question whether he contributed to the accident by following too closely. This argument runs afoul of Most v. Jones, supra, Morales v. Amor, supra, Chuk Hwa Shin v. Correale, supra, and Marcellin v. Passaro, supra, all of which hold that the operator of a middle vehicle who is able to safely bring his vehicle to a stop behind the lead vehicle before being struck in the rear by a following vehicle has established his prima facie entitlement to judgment as a matter of law.

Consequently, Mr. Hoist is entitled to summary judgment.

It is therefore

ORDERED, that the motion of defendant Alex P. Hoist for summary judgment dismissing the claims against him is in all respects granted, and it is further

ORDERED, that the Complaint (as against defendant Alex P. Hoist only) and all cross claims against defendant Alex P. Hoist are dismissed.

The foregoing constitutes the decision and order of this Court.