Opinion
Index No. 717467/2017 Motion Seq. No. 003
09-23-2019
JAMES ROCHFORD, Plaintiff(s), v. KARMIN ALI VANN and JFK CARTAGE & CONVENTION SERVICES, INC., Defendant(s)
Unpublished Opinion
Motion Date: September 3, 2019
Present: HONORABLE DENIS J. BUTLER Justice
Denis J. Butler Judge:
The following papers were read on this motion by defendants for an order, pursuant to CPLR 3402 and 22 NYCRR 202.21 (e), vacating the note of issue on the ground that this action is not ready for trial, pursuant to CPLR 3124, setting down a schedule to complete discovery, and extending defendants' time to file dispositive motions; and cross-motion by plaintiff for an order, pursuant to CPLR 3212, granting partial summary judgment on the issue of liability.
Papers Numbered
Notice of Motion, Affirmation, Exhibits........... E37-49
Notice of Cross-Motion, Affirmation, Affidavit, Exhibits.......................................... E50-56
Affirmation In Opposition, Affidavit, Exhibits.... E57-59
Upon the foregoing papers, it is ordered that the motion and cross-motion are determined as follows:
This action, which arises from a motor vehicle accident that occurred on February 22, 2017, was commenced by the filing and service of a summons and complaint on or about December 18, 2017. Issue was joined on behalf of defendants by service of a verified answer on or about March 27, 2018. On or about May 29, 2018, plaintiff served his verified bill of particulars.
On or about December 20, 2018, plaintiff was deposed, and, after his deposition, on January 3, 2019, defendants served their post-deposition notice for discovery and inspection. The demand involved additional authorizations for plaintiff's pre-accident and post-accident medical treatment. As plaintiff failed to respond to the demand, defendants have not conducted plaintiff's independent medical examinations.
On or about April 8, 2019, plaintiff served his supplemental verified bill of particulars. After his deposition, plaintiff now claims that he underwent a left shoulder arthroscopy. Defendants are now therefore entitled to conduct a further deposition of plaintiff.
Notwithstanding the significant outstanding discovery issues, on May 23, 2019, plaintiff filed the note of issue. On June 7, 2019, defendants sent plaintiff a good faith letter regarding vacating the note of issue due to the above-mentioned discovery issues and/or extending the summary judgment motion deadline, but plaintiff's counsel failed to respond.
It is evident that all discovery was not completed at the time of filing the note of issue and plaintiff's declaration in the certificate of readiness that "[t]he case is ready for trial" was incorrect (see Furrukh v Forest Hills Hosp., 107 A.D.3d 668 [2d Dept 2013]).
Accordingly, defendants' motion is granted to the extent that the note of issue and certificate of readiness are hereby vacated, and the matter is stricken from the trial calendar. As such, the branch of the motion for an extension of time to move for summary judgment is denied as moot.
The parties are directed to conduct any outstanding discovery without undue delay, and, upon the completion of all discovery, the parties shall so-stipulate and present the stipulation to the Clerk of the Trial Scheduling Part for an order permitting the filing of a new note of issue and restoring the matter for a pretrial conference or a trial date.
Turning to plaintiff's cross-motion for summary judgment on the issue of liability, summary judgment is "a drastic remedy which should only be employed when there is no doubt as to the absence of triable issues" (Andre v Pomeroy, 35 N.Y.2d 361, 364 [1974]; see Kwong On Bank, Ltd. v Montrose Knitwear Corp., 74 A.D.2d 768 [2d Dept 1980]; Crowley Milk Co. v Klein, 24 A.D.2d 920 [3d Dept 1965]. Even the color of a triable issue forecloses the remedy (see Newin Corp. v Hartford Acc & Indem. Co., 62 N.Y.2d 916 [1984]). The evidence must be construed in a light most favorable to the non-moving party (see Bennicasa v Garrubo, 141 A.D.2d 636 [2d Dept 1988]; Weiss v Gaifield, 21 A.D.2d 156 [3d Dept 1964]). The proponent of a motion for summary judgment carries the initial burden of presenting sufficient evidence to demonstrate, as a matter of law, the absence of a material issue of fact (Alvarez v Prospect Hospital, 68 N.Y.2d 320 [1986]). Once the moving party has met its burden, the opponent must produce competent evidence in admissible form to establish the existence of a triable issue of fact (see Zuckerman v City of New York, 49 N.Y.2d 557 [1980]). The role of the court on a motion for summary judgment is to determine if bona fide issues of fact exist, not to resolve issues of credibility (see Knepka v Tallman, 278 A.D.2d 811 [4th Dept 2000]).
"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, thereby requiring that operator to rebut the inference of negligence by providing a nonnegligent explanation for the collision" (Cajas-Romero v Ward, 106 A.D.3d 850, 851 [2d Dept 2013]) . A middle vehicle in a chain-reaction collision establishes the prima facie entitlement to judgment as a matter of law by submitting admissible evidence showing that he or she was lawfully stopped before being struck from behind and propelled forward into the vehicle in front (see e.g. Lamore v Panapoulos, 121 A.D.3d 863, 863 [2d Dept 2014]; Niosi v Jones, 133 A.D.3d 578, 579 [2d Dept 2015]).
Here, the court finds that there is a question of fact as to the happening of the accident. Plaintiff testified that the accident occurred at approximately 4:20 a.m., and it was drizzling at the time. Before the accident, there was a third vehicle in front of plaintiff's vehicle, which unexpectedly decided to make a left turn. Plaintiff further testified that, as he slowed down, defendant-driver struck plaintiff in the rear and propelled plaintiff into the rear of the third vehicle in front of him. In contrast, defendant testified that, immediately before the accident occurred, the third vehicle swerved in front of plaintiff, which caused plaintiff to initially rear-end that third vehicle. The police accident report also supports defendant-driver's version of the accident, that is, that plaintiff struck the third, lead vehicle and defendant-driver then struck plaintiff. Thereafter, that third vehicle fled the scene. Defendant's excuse amounts to more than a bare claim that plaintiff suddenly stopped (cf. Gutierrez v Trillium USA, 111 A.D.3d 669 [2d Dept 2013]; Ramirez v Konstanzer, 61 A.D.3d 837 [2nd Dept 2009]; Jumandeo v Franks, 56 A.D.3d 614 [2nd Dept 2008]). The different versions of the accident offered by the parties precludes a grant of summary judgment.
Accordingly, plaintiff's cross-motion for summary judgment is denied.
This constitutes the decision and order of the court.