Preview
FILED: NASSAU COUNTY CLERK 12/18/2019 04:36 PM INDEX NO. 612966/2017
NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 12/18/2019
OR/Glivegzi
SHORT FORM ORDER
SUPREME COURT - STATE OF NEW YORK - COUNTY OF NASSAU
PRESENT: HONORABLE JOHN M. GALASSO, J.S.C.
RICHARD G. BODEN,
Index No. 612966/17
Plaintiff, Sequence # 002, 003
Motion Date: 10/16/19
- against -
Part 16 PI - 00;-
STEPHEN P. KUMAR and EAN HOLDINGS LLC, Mob - 003
Defendants.
Notice of Motion (Seq. 002) 1
Attorney Affirmation in Opposition 2
Reply Affirmation 3
Memorandum of Law in Opposition 4
Notice of Cross- Motion 5
Affirmation in Opposition 6
Attorney Affirmation in Reply 7
Upon the foregoing papers, the motion brought by defendant, EAN Holdings, LLC, for an
Order granting summary judgment, dismissing all negligent entrustment claims against EAN and
Enterprise Rent A Car, as precluded by the Federal Equity Act; and for plaintiff's failure to meet the
threshold limits set by New York State Insurance Law §§ 5102 and 5104 (Seq. #002); and the cross-
motion brought by plaintiff, Richard Boden, for an Order granting partial summary judgment on the
issue of liability as against defendants; and granting a trial preference to plaintiff, on the grounds that
he is over the age of 70 (Seq. #003), are determined as follows.
This is an action to recover damages for personal injuries and economic damages allegedly
sustained by plaintiff, Richard Boden, as a result of motor vehicle accident which occurred on
November 28, 2017, on Southgate Road, approximately 100 feet from Fieldstone Lane, Valley Stream,
Town of Hempstead, County of Nassau, State of New York. At the time of the accident plaintiff alleges
that the vehicle he was operating was struck by the vehicle owned by defendant, EAN Holdings LLC
(hereinafter "EAN") and operated by defendant, Stephen P. Kumar. As a result of said accident the
plaintiff alleges to have sustained serious personal injury to his neck, back and head.
Seq. #002
In support of its motion for summary judgment, plaintiff submits, inter alia, copies of the
pleadings, plaintiffs Verified Bill of Particulars, the transcript of the deposition testimony of plaintiff,
the affidavit of Amy Aquino, Risk Manager for EAN, and the affirmed independent examination
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reports of Dr. P. Leo Varriale, M.D., who performed an orthopedic evaluation, Dr. Richard Lectenberg,
M.D., who performed a neurologic examination, and the affirmed independent radiological report of
Dr. Mark J. Decker, M.D.
Movant contends that vicarious liability for passive owners of rented or leased motor vehicles
has been abolished, warranting dismissal of the instant action against EAN, who is the owner of the
vehicle rented by defendant, Stephen P. Kumar, and involved in the subject accident.
The effect of the Graves Amendment, enacted by Congress for the explicit purpose of
abolishing vicarious liability, such as that imposed by New York State Vehicle and Traffic Law § 388,
is on entities engaged in the business of renting and leasing motor vehicles. Since its enactment in
2005, owners of vehicles in New York who are in the business of renting motor vehicles, cannot be
held vicariously liable for the negligent acts of the drivers of those rented vehicles solely based upon
the fact that they hold title to the motor vehicle. See, Antoine v. Kalandrishvili, 150 A.D.3d 941, 56
NY.S.3d 142 (2d Dept. 2017), citations omitted The affidavit of Amy Aquino on behalf EAN provides
sufficient evidence to authenticate the rental of the subject vehicle and to demonstrate that EAN was
the owner of the subject vehicle and engaged in the business of renting and/or leasing motor vehicles.
See, Antoine, supra.
Accordingly, and without opposition, that portion of defendant, EAN's motion seeking
dismissal of plaintiffs negligent entrustment claims is granted and the complaint is dismissed as
asserted against EAN.
Now turning to that portion of defendant's motion seeking summary judgment for plaintiffs
failure to meet the threshold limits set by New York State Insurance Law §§ 5102 and 5104. The
defendant has made a prima facie showing of entitlement to summary judgment on this issue.
Defendant submits the affirmed report of Dr. P. Leo Varriale, M.D. (hereinafter "Dr.
Varriale"), who examined plaintiff on January 24, 2019, for an orthopedic evaluation. Dr. Varriale
examined the plaintiff, performed range of motion testing on the plaintiff using a goniometer, and
compared those finding to normal findings. The medical report indicates that Dr. Varriale found, on
that date, no orthopedic disability in relation to the accident that occurred on June 28, 2017 based upon
the objective physical examination of plaintiffs cervical, thoracic and lumbar spines.
Defendant submits the affirmed report of Dr. Richard Lectenberg, M.D. (hereinafter "Dr.
Lectenberg"), who examined plaintiff on February 13, 2019 for a neurologic examination. Dr.
Lectenberg examined the plaintiff, performed range of motion testing on the plaintiff using a
goniometer, and compared those finding to normal findings. The medical report indicates that Dr.
Lectenberg found, on that date, plaintiffs cervical and thoracic spine sprains and head trauma to be
resolved and concludes that there is no neurologic impairments or disability causally related to the
accident that occurred on June 28, 2017 based upon his objective physical examination.
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Defendant submits the affirmed report of Dr. Mark J. Decker, M.D. (hereinafter "Dr. Decker")
who performed independent radiological interpretations on January 17, 2019 of plaintiff's MRIs of the
cervical spine dated June 29, 2005, and July 8,2017 respectively. Dr. Deckler found that plaintiff has
diffuse degenerative disc disease with multilevel bulging and multilevel Luschka hypterophy and facet
hypertrophy with foraminal encroachment, and that no evidence exists for an acute traumatic injury on
plaintiff's post-accident MRI study.
The defendant has made a prima facie showing of entitlement to summary judgment on the
grounds that the plaintiffs injuries do not meet the "serious injury" requirements of Insurance Law
§5102(d). (Tourre v. Avis Rent A Car Sys., 98 N.Y.2d 345 (2002); Gaddy v. Eyler, 79 N.Y.2d 955
[2002]). The proponent of a summary judgment motion "must make a prima facie showing of
entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence
of any material issues of fact." (Alvarez v. Prospect Hosp., 68 NY.2d 320 [Ct. of App. 1986]). Once
the movant has demonstrated a prima facie showing of entitlement to summary judgment, 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 a fact which require a trial of the action. (Zuckerman v.
City of New York, 49 N.Y.2d 557 [1980]).
In opposition, plaintiff submits, inter alia, the affirmed report of Dr. Leon Sultan, M.D., the
affidavit of Joan Schwarz Office Manager of the Buildings Department of the Town of Hempstead and
the affidavit of Erin Bond, employee of Peak Performance physical therapy facility.
On August 6,2019, Dr. Sultan examined plaintiff, performed range of motion testing using a
goniometer and compared those findings to normal values. The report Dr. Sultan documents cervical
spine trauma, with persistent symptomatology and decreased range of motion. Dr. Sultan concludes
his report stating that plaintiff's injuries are causally related to the accident dated June 28, 2017 based
upon his objective findings. In Dr. Sultan's opinion, the trauma caused by the subject accident resulted
in an aggravation of a pre-existing cervical spine condition that is permanent in nature for which
plaintiff has a permanent cervical spine disability.
Plaintiff has produced evidentiary proof in admissible form sufficient to establish the existence
of material issues of fact which require a trial of this action. (See, Adetunji v. U-Haul, 250 A.D.2d 483,
672 N.Y.S.2d 869 [1st Dept. 1998] ; Brown v. Achy, 9 A.D.3d 30, 776 N.Y.S.2d 56 [1st Dept 2004]).
The affirmed report of Dr. Sultan demonstrates objective evidence of the physical limitations in the
plaintiffs cervical spine resulting from the accident and warrant the denial of the defendant's motion.
(See, Rivera v. Ramos, 2015 NY App. Div. LEX1S 7197, 2015 NY slip Op 07257 [2nd Dept. 2015; Lim
v. Flores, 96 A.D.3d 723, 946 N.Y.S.2d 138 [2nd Dept 2012] ; Kearse v. New York City Transit
Authority, 16 A.D.3d 45, 789 1V.Y.S.2d 281 [2d Dept. 2005]).
The credibility of the plaintiff and his treating physicians is not for this court to determine as
the "court may not weigh the credibility of witnesses on a motion for summary judgment unless it
clearly appears that the issues are not genuine but feigned." (Forest v. Jewish Guild for the Blind, 3
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N.Y.3d 295, 786 N.YS.2d 382 [2004]; Lipshultz v. Kiderman, 76 A.D.3d 178, 905 N.IS.2d 247 [2nd
Dept 2010]).
If there is any doubt as to the existence of a triable issue of fact, or if a material issue of fact is
arguable, summary judgment should be denied. (Celardo v. Bell, 222 A.D.2d 547, 635 NY.S.2d 85 [2d
Dept. 1995]; Museums at Stony Brook v. Village of Patchogue Fire Dept, 146 A.D.2d 572, 536
N.Y.S.2d 177 [2d Dept 1989]).
Accordingly, the defendant's motion for summary judgment dismissing the plaintiff's action
on the grounds that the plaintiff did not sustain a "serious injury" within the meaning of New York
State Insurance Law§ 5102(d), is denied.
Seq. #003
In support of plaintiff's motion seeking summary judgment on the issue of liability and trial
preference due to the age of plaintiff, movant submits, inter alia, copies of the pleadings, the transcripts
of the deposition testimony of plaintiff and defendant, Stephen P. Kumar, and the birth certificate of
plaintiff, Richard Boden evidencing his birth year as 1946.
The deposition testimony of plaintiff states that he was located in the driver's seat of his parked
vehicle on the right side of Southgate Road near its intersection with Fieldstone Lane in Valley Stream
on the date of the accident on June 28, 2017, for approximately two minutes when he felt one, solid
heavy impact to the left rear quarter panel of his vehicle by the right front quarter panel and wheel
assembly of the vehicle operated by defendant Stephen P. Kumar. Plaintiff testified that the roadway
curves and the accident occurred within the "snaky" curve of Southgate Road.
The deposition testimony of Stephen P. Kumar (hereinafter "Kumar") states that he was
traveling in the middle of Southgate Road, a one-way roadway, and that plaintiffs car was towards the
side next to the curb, when the right front of his vehicle hit the rear left quarter of plaintiff's vehicle.
Kumar attests in his deposition testimony that that at the time of the impact his foot was on the brakes
as he tried to avoid contact with the plaintiffs car, which he could not recall if plaintiff's car was
parked or moving.
In opposition, defendant contends a triable issue of fact exists with regard to whether the
manner and positioning of plaintiff's car contributed to the happening of the accident that precludes
summary judgment. Defendant takes no position as to plaintiff's request for a special trial preference.
While negligence actions by their very nature do not generally lend themselves to resolution
by a motion for summary judgment, where the facts clearly point to the negligence of one party without
any fault or culpable conduct of the other party, a motion for summary judgment will be granted.
(LeGrand v. Primus Automobile Financial Services, Inc., 272 A.D.2d 450, 451, 707 NY.S.2d 672 [2nd
Dept. 2000]).
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Although a plaintiff is no longer required to show freedom from comparative fault in
establishing his or her prima facie case, a plaintiff seeking summary judgment on the issue of liability
must establish, prima facie that the defendant breached a duty owed to the plaintiff and that defendant's
negligence was a proximate cause of the alleged injuries. See, Rodriguez v. City of New York, 31
IV.Y.3d 312, 76 N.Y.S.3d 898, 101 N.E.3d 366 (2018)
Contrary to plaintiffs contentions that the subject accident is a rear-end collision, it is
undisputed by the parties that the impact occurred to the rear left quarter panel of plaintiff's vehicle
indicating a side impact to plaintiff's vehicle on the rear left side. Given the issues of fact raised by
the defendant as to whether plaintiffs parking of the vehicle on the curve of the roadway contributed
to the happening of the accident, and defendant's conduct in the operation of the vehicle at the time of
the accident, plaintiffs motion for summary judgment on the issue of liability is denied. See, Metzler
v. Bravvley, 209 A.D.2d 487, 619 N.Y.S.2d 282 (2d Dept. 1994).
Accordingly, that portion of plaintiff's motion seeking summary judgment on the issue of
liability is denied.
Plaintiffs application for trial preference is granted. Pursuant to CPLR 3403(a)(4), a party
who has reached 70 years of age is automatically entitled to a preference under the statute. See,
Borenstein v City of New York, 248 A.D.2d 425, 668 N.YS.2d 949 [2d Dept 1998]; Milton Point Realty
Co., Inc. v. Haas, 91 A.D.2d 678, 457 N.Y.S.2d 333 [2d Dept 1982].
Accordingly, and without opposition, that portion of plaintiffs instant motion seeking a trial
preference is granted. The plaintiff is directed to serve forthwith a copy of this order with Notice
of Entry upon the all defendants in this action and upon the Calendar Clerk. Upon such service,
the Calendar Clerk of this Court is directed to place this action on the Calendar Control Part
calendar for the next available trial date.
Seq. #002 is granted in part and denied in part. The portion of defendant, EAN's motion
seeking dismissal of plaintiff's negligent entrustment claims is granted, and the complaint is dismissed
as asserted against EAN. The portion of the defendant's motion for summary judgment dismissing the
plaintiffs action on the grounds that the plaintiff did not sustain a "serious injury" within the meaning
of New York State Insurance Law§ 5102(d), is denied.
Seq. #003 is denied in part and granted in part. The portion of plaintiffs motion seeking
summary judgment on the issue of liability is denied. The portion of plaintiff's motion seeking trial
preference is granted.
This constitutes the Decision and Order of this Court. Any request for relief not expressly
granted herein is denied.
Dated: December 10, 2019
on.:JoC Gal
,3r_
ENTERE hn M. asso, J.S.C.
DEC 1 8 2019
5
NASSAU COUNTY
COUNTY CLERK'S OFFICE
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Preview
FILED: NASSAU COUNTY CLERK 12/18/2019 04:36 PM INDEX NO. 612966/2017 NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 12/18/2019 OR/Glivegzi SHORT FORM ORDER SUPREME COURT - STATE OF NEW YORK - COUNTY OF NASSAU PRESENT: HONORABLE JOHN M. GALASSO, J.S.C. RICHARD G. BODEN, Index No. 612966/17 Plaintiff, Sequence # 002, 003 Motion Date: 10/16/19 - against - Part 16 PI - 00;- STEPHEN P. KUMAR and EAN HOLDINGS LLC, Mob - 003 Defendants. Notice of Motion (Seq. 002) 1 Attorney Affirmation in Opposition 2 Reply Affirmation 3 Memorandum of Law in Opposition 4 Notice of Cross- Motion 5 Affirmation in Opposition 6 Attorney Affirmation in Reply 7 Upon the foregoing papers, the motion brought by defendant, EAN Holdings, LLC, for an Order granting summary judgment, dismissing all negligent entrustment claims against EAN and Enterprise Rent A Car, as precluded by the Federal Equity Act; and for plaintiff's failure to meet the threshold limits set by New York State Insurance Law §§ 5102 and 5104 (Seq. #002); and the cross- motion brought by plaintiff, Richard Boden, for an Order granting partial summary judgment on the issue of liability as against defendants; and granting a trial preference to plaintiff, on the grounds that he is over the age of 70 (Seq. #003), are determined as follows. This is an action to recover damages for personal injuries and economic damages allegedly sustained by plaintiff, Richard Boden, as a result of motor vehicle accident which occurred on November 28, 2017, on Southgate Road, approximately 100 feet from Fieldstone Lane, Valley Stream, Town of Hempstead, County of Nassau, State of New York. At the time of the accident plaintiff alleges that the vehicle he was operating was struck by the vehicle owned by defendant, EAN Holdings LLC (hereinafter "EAN") and operated by defendant, Stephen P. Kumar. As a result of said accident the plaintiff alleges to have sustained serious personal injury to his neck, back and head. Seq. #002 In support of its motion for summary judgment, plaintiff submits, inter alia, copies of the pleadings, plaintiffs Verified Bill of Particulars, the transcript of the deposition testimony of plaintiff, the affidavit of Amy Aquino, Risk Manager for EAN, and the affirmed independent examination 1 1 of 5 FILED: NASSAU COUNTY CLERK 12/18/2019 04:36 PM INDEX NO. 612966/2017 NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 12/18/2019 reports of Dr. P. Leo Varriale, M.D., who performed an orthopedic evaluation, Dr. Richard Lectenberg, M.D., who performed a neurologic examination, and the affirmed independent radiological report of Dr. Mark J. Decker, M.D. Movant contends that vicarious liability for passive owners of rented or leased motor vehicles has been abolished, warranting dismissal of the instant action against EAN, who is the owner of the vehicle rented by defendant, Stephen P. Kumar, and involved in the subject accident. The effect of the Graves Amendment, enacted by Congress for the explicit purpose of abolishing vicarious liability, such as that imposed by New York State Vehicle and Traffic Law § 388, is on entities engaged in the business of renting and leasing motor vehicles. Since its enactment in 2005, owners of vehicles in New York who are in the business of renting motor vehicles, cannot be held vicariously liable for the negligent acts of the drivers of those rented vehicles solely based upon the fact that they hold title to the motor vehicle. See, Antoine v. Kalandrishvili, 150 A.D.3d 941, 56 NY.S.3d 142 (2d Dept. 2017), citations omitted The affidavit of Amy Aquino on behalf EAN provides sufficient evidence to authenticate the rental of the subject vehicle and to demonstrate that EAN was the owner of the subject vehicle and engaged in the business of renting and/or leasing motor vehicles. See, Antoine, supra. Accordingly, and without opposition, that portion of defendant, EAN's motion seeking dismissal of plaintiffs negligent entrustment claims is granted and the complaint is dismissed as asserted against EAN. Now turning to that portion of defendant's motion seeking summary judgment for plaintiffs failure to meet the threshold limits set by New York State Insurance Law §§ 5102 and 5104. The defendant has made a prima facie showing of entitlement to summary judgment on this issue. Defendant submits the affirmed report of Dr. P. Leo Varriale, M.D. (hereinafter "Dr. Varriale"), who examined plaintiff on January 24, 2019, for an orthopedic evaluation. Dr. Varriale examined the plaintiff, performed range of motion testing on the plaintiff using a goniometer, and compared those finding to normal findings. The medical report indicates that Dr. Varriale found, on that date, no orthopedic disability in relation to the accident that occurred on June 28, 2017 based upon the objective physical examination of plaintiffs cervical, thoracic and lumbar spines. Defendant submits the affirmed report of Dr. Richard Lectenberg, M.D. (hereinafter "Dr. Lectenberg"), who examined plaintiff on February 13, 2019 for a neurologic examination. Dr. Lectenberg examined the plaintiff, performed range of motion testing on the plaintiff using a goniometer, and compared those finding to normal findings. The medical report indicates that Dr. Lectenberg found, on that date, plaintiffs cervical and thoracic spine sprains and head trauma to be resolved and concludes that there is no neurologic impairments or disability causally related to the accident that occurred on June 28, 2017 based upon his objective physical examination. 2 2 of 5 FILED: NASSAU COUNTY CLERK 12/18/2019 04:36 PM INDEX NO. 612966/2017 NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 12/18/2019 Defendant submits the affirmed report of Dr. Mark J. Decker, M.D. (hereinafter "Dr. Decker") who performed independent radiological interpretations on January 17, 2019 of plaintiff's MRIs of the cervical spine dated June 29, 2005, and July 8,2017 respectively. Dr. Deckler found that plaintiff has diffuse degenerative disc disease with multilevel bulging and multilevel Luschka hypterophy and facet hypertrophy with foraminal encroachment, and that no evidence exists for an acute traumatic injury on plaintiff's post-accident MRI study. The defendant has made a prima facie showing of entitlement to summary judgment on the grounds that the plaintiffs injuries do not meet the "serious injury" requirements of Insurance Law §5102(d). (Tourre v. Avis Rent A Car Sys., 98 N.Y.2d 345 (2002); Gaddy v. Eyler, 79 N.Y.2d 955 [2002]). The proponent of a summary judgment motion "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact." (Alvarez v. Prospect Hosp., 68 NY.2d 320 [Ct. of App. 1986]). Once the movant has demonstrated a prima facie showing of entitlement to summary judgment, 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 a fact which require a trial of the action. (Zuckerman v. City of New York, 49 N.Y.2d 557 [1980]). In opposition, plaintiff submits, inter alia, the affirmed report of Dr. Leon Sultan, M.D., the affidavit of Joan Schwarz Office Manager of the Buildings Department of the Town of Hempstead and the affidavit of Erin Bond, employee of Peak Performance physical therapy facility. On August 6,2019, Dr. Sultan examined plaintiff, performed range of motion testing using a goniometer and compared those findings to normal values. The report Dr. Sultan documents cervical spine trauma, with persistent symptomatology and decreased range of motion. Dr. Sultan concludes his report stating that plaintiff's injuries are causally related to the accident dated June 28, 2017 based upon his objective findings. In Dr. Sultan's opinion, the trauma caused by the subject accident resulted in an aggravation of a pre-existing cervical spine condition that is permanent in nature for which plaintiff has a permanent cervical spine disability. Plaintiff has produced evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of this action. (See, Adetunji v. U-Haul, 250 A.D.2d 483, 672 N.Y.S.2d 869 [1st Dept. 1998] ; Brown v. Achy, 9 A.D.3d 30, 776 N.Y.S.2d 56 [1st Dept 2004]). The affirmed report of Dr. Sultan demonstrates objective evidence of the physical limitations in the plaintiffs cervical spine resulting from the accident and warrant the denial of the defendant's motion. (See, Rivera v. Ramos, 2015 NY App. Div. LEX1S 7197, 2015 NY slip Op 07257 [2nd Dept. 2015; Lim v. Flores, 96 A.D.3d 723, 946 N.Y.S.2d 138 [2nd Dept 2012] ; Kearse v. New York City Transit Authority, 16 A.D.3d 45, 789 1V.Y.S.2d 281 [2d Dept. 2005]). The credibility of the plaintiff and his treating physicians is not for this court to determine as the "court may not weigh the credibility of witnesses on a motion for summary judgment unless it clearly appears that the issues are not genuine but feigned." (Forest v. Jewish Guild for the Blind, 3 3 3 of 5 FILED: NASSAU COUNTY CLERK 12/18/2019 04:36 PM INDEX NO. 612966/2017 NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 12/18/2019 N.Y.3d 295, 786 N.YS.2d 382 [2004]; Lipshultz v. Kiderman, 76 A.D.3d 178, 905 N.IS.2d 247 [2nd Dept 2010]). If there is any doubt as to the existence of a triable issue of fact, or if a material issue of fact is arguable, summary judgment should be denied. (Celardo v. Bell, 222 A.D.2d 547, 635 NY.S.2d 85 [2d Dept. 1995]; Museums at Stony Brook v. Village of Patchogue Fire Dept, 146 A.D.2d 572, 536 N.Y.S.2d 177 [2d Dept 1989]). Accordingly, the defendant's motion for summary judgment dismissing the plaintiff's action on the grounds that the plaintiff did not sustain a "serious injury" within the meaning of New York State Insurance Law§ 5102(d), is denied. Seq. #003 In support of plaintiff's motion seeking summary judgment on the issue of liability and trial preference due to the age of plaintiff, movant submits, inter alia, copies of the pleadings, the transcripts of the deposition testimony of plaintiff and defendant, Stephen P. Kumar, and the birth certificate of plaintiff, Richard Boden evidencing his birth year as 1946. The deposition testimony of plaintiff states that he was located in the driver's seat of his parked vehicle on the right side of Southgate Road near its intersection with Fieldstone Lane in Valley Stream on the date of the accident on June 28, 2017, for approximately two minutes when he felt one, solid heavy impact to the left rear quarter panel of his vehicle by the right front quarter panel and wheel assembly of the vehicle operated by defendant Stephen P. Kumar. Plaintiff testified that the roadway curves and the accident occurred within the "snaky" curve of Southgate Road. The deposition testimony of Stephen P. Kumar (hereinafter "Kumar") states that he was traveling in the middle of Southgate Road, a one-way roadway, and that plaintiffs car was towards the side next to the curb, when the right front of his vehicle hit the rear left quarter of plaintiff's vehicle. Kumar attests in his deposition testimony that that at the time of the impact his foot was on the brakes as he tried to avoid contact with the plaintiffs car, which he could not recall if plaintiff's car was parked or moving. In opposition, defendant contends a triable issue of fact exists with regard to whether the manner and positioning of plaintiff's car contributed to the happening of the accident that precludes summary judgment. Defendant takes no position as to plaintiff's request for a special trial preference. While negligence actions by their very nature do not generally lend themselves to resolution by a motion for summary judgment, where the facts clearly point to the negligence of one party without any fault or culpable conduct of the other party, a motion for summary judgment will be granted. (LeGrand v. Primus Automobile Financial Services, Inc., 272 A.D.2d 450, 451, 707 NY.S.2d 672 [2nd Dept. 2000]). 4 4 of 5 FILED: NASSAU COUNTY CLERK 12/18/2019 04:36 PM INDEX NO. 612966/2017 NYSCEF DOC. NO. 62 RECEIVED NYSCEF: 12/18/2019 Although a plaintiff is no longer required to show freedom from comparative fault in establishing his or her prima facie case, a plaintiff seeking summary judgment on the issue of liability must establish, prima facie that the defendant breached a duty owed to the plaintiff and that defendant's negligence was a proximate cause of the alleged injuries. See, Rodriguez v. City of New York, 31 IV.Y.3d 312, 76 N.Y.S.3d 898, 101 N.E.3d 366 (2018) Contrary to plaintiffs contentions that the subject accident is a rear-end collision, it is undisputed by the parties that the impact occurred to the rear left quarter panel of plaintiff's vehicle indicating a side impact to plaintiff's vehicle on the rear left side. Given the issues of fact raised by the defendant as to whether plaintiffs parking of the vehicle on the curve of the roadway contributed to the happening of the accident, and defendant's conduct in the operation of the vehicle at the time of the accident, plaintiffs motion for summary judgment on the issue of liability is denied. See, Metzler v. Bravvley, 209 A.D.2d 487, 619 N.Y.S.2d 282 (2d Dept. 1994). Accordingly, that portion of plaintiff's motion seeking summary judgment on the issue of liability is denied. Plaintiffs application for trial preference is granted. Pursuant to CPLR 3403(a)(4), a party who has reached 70 years of age is automatically entitled to a preference under the statute. See, Borenstein v City of New York, 248 A.D.2d 425, 668 N.YS.2d 949 [2d Dept 1998]; Milton Point Realty Co., Inc. v. Haas, 91 A.D.2d 678, 457 N.Y.S.2d 333 [2d Dept 1982]. Accordingly, and without opposition, that portion of plaintiffs instant motion seeking a trial preference is granted. The plaintiff is directed to serve forthwith a copy of this order with Notice of Entry upon the all defendants in this action and upon the Calendar Clerk. Upon such service, the Calendar Clerk of this Court is directed to place this action on the Calendar Control Part calendar for the next available trial date. Seq. #002 is granted in part and denied in part. The portion of defendant, EAN's motion seeking dismissal of plaintiff's negligent entrustment claims is granted, and the complaint is dismissed as asserted against EAN. The portion of the defendant's motion for summary judgment dismissing the plaintiffs action on the grounds that the plaintiff did not sustain a "serious injury" within the meaning of New York State Insurance Law§ 5102(d), is denied. Seq. #003 is denied in part and granted in part. The portion of plaintiffs motion seeking summary judgment on the issue of liability is denied. The portion of plaintiff's motion seeking trial preference is granted. This constitutes the Decision and Order of this Court. Any request for relief not expressly granted herein is denied. Dated: December 10, 2019 on.:JoC Gal ,3r_ ENTERE hn M. asso, J.S.C. DEC 1 8 2019 5 NASSAU COUNTY COUNTY CLERK'S OFFICE 5 of 5