Preview
(FILED: QUEENS COUNTY CLERK 10/05/2021 08:47 AM INDEX NO. 708371/2021
NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 10/05/2021
Short Form Order
NEW YORK SUPREME COURT - QUEENS COUNTY
PRESENT: HON. TIMOTHY J. DUFFICY PART 35
Justice
JACQUELINE BARRETT,
Plaintiff, Index No.: 708371/21
Mot. Date: 9/7/21
-against- Mot. Seq. 1
PENSKE LEASING AND RENTAL COMPANY,
PENSKE TRUCK LEASING CO., LP.,
THRIFT LAND ACQUISITION, LLC D/B/A FILED
HELPSY, and JACOB GUNTHER, 10/5/2021
COUNTY CLERK
QUEENS COUNTY
Defendants.
The following papers were read on this motion by plaintiff for an order seeking partial
summary judgment on the issue of liability as against defendants and summary judgment
on the lack of plaintiff's culpable conduct on the issue of liability; and for an order
dismissing defendants’ affirmative defenses of comparative negligence.
PAPERS
NUMBERED
Notice of Motion-A ffidavits-Exhibits 0.0.0. EF 13-18
Upon the foregoing papers, it is ordered that the motion is granted, without
opposition.
The underlying action arises out of a motor vehicle accident, that occurred on
December 13, 2020, on Linden Boulevard, at or near its intersection with Farmers
Boulevard, in Queens County, New York. It is undisputed that at the time of the accident,
plaintiff Jacqueline Barrett was a passenger in a vehicle, which vehicle made contact with
the vehicle which was owned by defendants Penske Truck Leasing and Rental Company
and Penske Truck Leasing Co., LP., and which vehicle was operated by defendant Jacob
Gunther during the course of his employment with defendant Thriftland Acquisition, LLC
d/b/a Helpsy.
Plaintiff seeks an order, pursuant to CPLR 3212, granting her summary judgment
on the issue of liability. Via submission of, inter alia, plaintiff’s own affidavit, she
1
1 of 2(FILED: QUEENS COUNTY CLERK 10/05/2021 08:47 AM INDEX NO. 708371/2021
NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 10/05/2021
established a prima facie case that she was an innocent passenger, who was in no way at
fault for the happening of the accident. Plaintiff also established a prima facie case that
there are no triable issues of fact. Plaintiff established that the subject accident occurred
when the vehicle in which she was a passenger traveled into the intersection of Linden
Boulevard and Framers Boulevard, in Queens County, New York, with a green light,
while the defendants drove their vehicle through a steady red light in violation of New
York State’s Vehicle and Traffic Law §§ 1110(a) and 1111(d)(1).
No triable issues of fact have been raised in opposition by defendants. Defendants
have failed to adduce proof in admissible form sufficient to oppose the relief requested,
as the instant motion is unopposed. As there are no triable issues of fact, a trial is
unnecessary and summary judgment is warranted.
Therefore, the motion by plaintiff is granted, without opposition. Plaintiff is
entitled to an order, pursuant to CPLR 3212(g), declaring that she was an innocent
passenger when the accident occurred and is entitled to summary judgment, pursuant to
CPLR 3212, on the issue of liability.
Accordingly, it is
ORDERED that plaintiff’s motion seeking summary judgment on liability
grounds is granted, without opposition; and it is further
ORDERED that the plaintiff is entitled to the issuance of an order, pursuant to
CPLR 3212(g), specifying that she was an innocent passenger when the accident
occurred, and as such is free from comparative fault in the happening of the accident; and
it is further
ORDERED that the defendants’ affirmative defenses of culpable conduct and
comparative negligence are dismissed.
The foregoing constitutes the decision and order of the Court.
Dated: September 29, 2021
FILED
10/5/2021
COUNTY CLERK
QUEENS COUNTY
TIMOTHY J. DUFFICY, J.S.C.
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Preview
(FILED: QUEENS COUNTY CLERK 10/05/2021 08:47 AM INDEX NO. 708371/2021 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 10/05/2021 Short Form Order NEW YORK SUPREME COURT - QUEENS COUNTY PRESENT: HON. TIMOTHY J. DUFFICY PART 35 Justice JACQUELINE BARRETT, Plaintiff, Index No.: 708371/21 Mot. Date: 9/7/21 -against- Mot. Seq. 1 PENSKE LEASING AND RENTAL COMPANY, PENSKE TRUCK LEASING CO., LP., THRIFT LAND ACQUISITION, LLC D/B/A FILED HELPSY, and JACOB GUNTHER, 10/5/2021 COUNTY CLERK QUEENS COUNTY Defendants. The following papers were read on this motion by plaintiff for an order seeking partial summary judgment on the issue of liability as against defendants and summary judgment on the lack of plaintiff's culpable conduct on the issue of liability; and for an order dismissing defendants’ affirmative defenses of comparative negligence. PAPERS NUMBERED Notice of Motion-A ffidavits-Exhibits 0.0.0. EF 13-18 Upon the foregoing papers, it is ordered that the motion is granted, without opposition. The underlying action arises out of a motor vehicle accident, that occurred on December 13, 2020, on Linden Boulevard, at or near its intersection with Farmers Boulevard, in Queens County, New York. It is undisputed that at the time of the accident, plaintiff Jacqueline Barrett was a passenger in a vehicle, which vehicle made contact with the vehicle which was owned by defendants Penske Truck Leasing and Rental Company and Penske Truck Leasing Co., LP., and which vehicle was operated by defendant Jacob Gunther during the course of his employment with defendant Thriftland Acquisition, LLC d/b/a Helpsy. Plaintiff seeks an order, pursuant to CPLR 3212, granting her summary judgment on the issue of liability. Via submission of, inter alia, plaintiff’s own affidavit, she 1 1 of 2(FILED: QUEENS COUNTY CLERK 10/05/2021 08:47 AM INDEX NO. 708371/2021 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 10/05/2021 established a prima facie case that she was an innocent passenger, who was in no way at fault for the happening of the accident. Plaintiff also established a prima facie case that there are no triable issues of fact. Plaintiff established that the subject accident occurred when the vehicle in which she was a passenger traveled into the intersection of Linden Boulevard and Framers Boulevard, in Queens County, New York, with a green light, while the defendants drove their vehicle through a steady red light in violation of New York State’s Vehicle and Traffic Law §§ 1110(a) and 1111(d)(1). No triable issues of fact have been raised in opposition by defendants. Defendants have failed to adduce proof in admissible form sufficient to oppose the relief requested, as the instant motion is unopposed. As there are no triable issues of fact, a trial is unnecessary and summary judgment is warranted. Therefore, the motion by plaintiff is granted, without opposition. Plaintiff is entitled to an order, pursuant to CPLR 3212(g), declaring that she was an innocent passenger when the accident occurred and is entitled to summary judgment, pursuant to CPLR 3212, on the issue of liability. Accordingly, it is ORDERED that plaintiff’s motion seeking summary judgment on liability grounds is granted, without opposition; and it is further ORDERED that the plaintiff is entitled to the issuance of an order, pursuant to CPLR 3212(g), specifying that she was an innocent passenger when the accident occurred, and as such is free from comparative fault in the happening of the accident; and it is further ORDERED that the defendants’ affirmative defenses of culpable conduct and comparative negligence are dismissed. The foregoing constitutes the decision and order of the Court. Dated: September 29, 2021 FILED 10/5/2021 COUNTY CLERK QUEENS COUNTY TIMOTHY J. DUFFICY, J.S.C. 2 of 2