Preview
FILED: SUFFOLK COUNTY CLERK 04/01/2022 09:38 AM INDEX NO. 616830/2021
NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 04/01/2022
SHORT FORM ORDER rNDEX NO. 61683012021
SUPREME COURT - STATE OF NEW YORK
DCM-J - SUFFOLK COUNTY
PRESENT:
Hon. Paul J. Baisle-v-. Jr.. J.S.C.
ORIG. RETURN DATE: November 30,2021
AMANDA BONKOSKI, FINAL RETURN DATE: January 4,2022
MOT. SEQ. #: 001 MG
Plaintifl
PLTF'S ATTORNEY:
GRUENBERG KELLY DELLA
-against-
7OO KOEHLER AVENUE
RONKONKOMA, NY I I779
JENNIFER AURELIO ANd JEFFREY
AURELIO, DEFTS' ATTORI\EY:
GENTILE & TAMBASCO
Defendants. 1I5 BROADHOLLOW ROAD, SUITE 3OO
MELVILLE, NY I 1747
Upon the following papers read on this e-filed motion for summary judsment: Notice of Motion/Order to Show Cause
and supporting papers bv plaintiff. dated November 9. 2021 ; Notice of Cross Motion and supporting papers Answering
plaintiff.
Affidavits and supporting papers by defendant. dated December 21. 2021 ; Replying Affidavits and supporting -;
papers by
dated December 29. 2021 ; Other-; it is
ORDERED that the motion by plaintiff for an order granting summary judgment in her favor on
the issue of liability and dismissing defendants' first affirmative defense based on comparative
negligence and fifth affirmative defense based on the emergency doctrine is granted; and it is further
ORDERED that apreliminary conference shall be held on April 20, 2022.
This is an action to recover personal damages for injuries allegedly sustained by plaintiff when
her vehicle, which was stopped, waiting to make a left turn at the intersection of Brook Street and
Rollstone Avenue in West Sayville, NewYork, was struck by a vehicle owned by defendant Jeffrey
Aurelio and operated by defendant Jennifer Aurelio. The accident allegedly occurred on June 17 ,2021,
at approximately 5:20 P.m.
plaintiff now moves for summary judgment in her favor on the issue of liability on the ground
that she was not negligent, and that the subject accident was solely the result of defendant
Jennifer
judgment dismissing
Aurelio,s failure to co-ntrol her vehicle. Plaintiff also moves for summary
and fifth affirmative defense
defendants, first affirmative defense based on comparative negligence
based on the emergency doctrine. In support, plaintiff submits,
inter alia, the pleadings and her
eastbound on Brook
affidavit. In her affidavit, plaintiff ur.rrihut prior to the accident, she had traveled
waiting to make a left turn' While
Street. She stopped at the intersection with Rollstone Avenue,
in the rear by defendants' vehicle'
stopped for approximately 20 seconds, her vehicle was struck
vehicle from the rear is required to
It is well settled that a driver of a vehicle approaching another
under the prevailing conditions to avoid colliding
maintain u ,.uronubly safe distance and rate of speed
1 of 2
FILED: SUFFOLK COUNTY CLERK 04/01/2022 09:38 AM INDEX NO. 616830/2021
NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 04/01/2022
Bonkoski v Aurelio
Index No. 61683012021
Page 2
with the other vehicle (see Vehicle and Traffic Law $ ll29 la]; Dolores v Grandpa's Bus Co., 789
AD3d 1539, 135 NYS3d 295l2dDept2020l; Capuozzo v Miller,l8S AD3d 1137,136 NYS3d 416l2d
Dept2020l). Moreover, a rear-end collision with a stopped or stopping vehicle creates a prima facie
case of liability regarding the operator of the moving vehicle and imposes a duty of explanation on the
operator of the moving vehicle to excuse the collision by providing a non-negligent explanation, such as
a mechanical failure, a sudden stop of the vehicle ahead, an unavoidable skidding on wet pavement or
some other reasonable excuse (see Lopez v Suggs, I 86 AD3d 589, 126 NYS3d 67 6 [2d Dept 20201;
Clements v Giatas, 178 AD3d 894, 895, 1 12 NYS3d 539 l2d Dept 20191 Fajardo v City of New York,
95 AD3d 820,943 NYS2d 587 l2dDept20l2l).
Here, plaintiff made prima facie showing of her entitlement to judgment as a matter of law by
a
demonstrating that her vehicle was struck in the rear by defendants' vehicle. Plaintiff also established,
prima facie, that she is entitled to summary judgment dismissing defendants' affirmative defenses
alleging comparative negligence and the emergency doctrine by demonstrating that she was not at fault
in the happening of the accident and that defendant Jennifer Aurelio's negligence was the sole proximate
cause of the accident. The burden then shifted to defendants to come forward with a non-negligent
explanation for the accident.
In opposition, defendant failed to raise a triable issue of fact sufficient to defeat summary
judgment. Defendants submit the affirmation of their attorney. The affirmation from an attorney having
no personal knowledge of the facts is without evidentiary value and, thus, is insufficient to raise a triable
issue of fact (see Zuckermqn v City of New York, 49 NY2d 557 , 427 NYS2d 595 [ 1980] ; Hubbard v
County of Modison, 93 AD3d 939,939 NYS2d 619 [3d Dept20l2]; Sanabria v Paduch,6l AD3d 839,
876 NYS2d 874l2d Dept 20091; Prince v Accardo,54 AD3d 837, 863 NYS2d 819 [2d Dept 2008]).
Thus, plaintiff s motion for summary judgment in her favor on the issue of liability and striking
defendant's affirmative defenses based on comparative negligence and the emergency doctrine is
granted.
Dated: t l, t["- ISLEY, JR., J.S
2 of 2
Preview
FILED: SUFFOLK COUNTY CLERK 04/01/2022 09:38 AM INDEX NO. 616830/2021 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 04/01/2022 SHORT FORM ORDER rNDEX NO. 61683012021 SUPREME COURT - STATE OF NEW YORK DCM-J - SUFFOLK COUNTY PRESENT: Hon. Paul J. Baisle-v-. Jr.. J.S.C. ORIG. RETURN DATE: November 30,2021 AMANDA BONKOSKI, FINAL RETURN DATE: January 4,2022 MOT. SEQ. #: 001 MG Plaintifl PLTF'S ATTORNEY: GRUENBERG KELLY DELLA -against- 7OO KOEHLER AVENUE RONKONKOMA, NY I I779 JENNIFER AURELIO ANd JEFFREY AURELIO, DEFTS' ATTORI\EY: GENTILE & TAMBASCO Defendants. 1I5 BROADHOLLOW ROAD, SUITE 3OO MELVILLE, NY I 1747 Upon the following papers read on this e-filed motion for summary judsment: Notice of Motion/Order to Show Cause and supporting papers bv plaintiff. dated November 9. 2021 ; Notice of Cross Motion and supporting papers Answering plaintiff. Affidavits and supporting papers by defendant. dated December 21. 2021 ; Replying Affidavits and supporting -; papers by dated December 29. 2021 ; Other-; it is ORDERED that the motion by plaintiff for an order granting summary judgment in her favor on the issue of liability and dismissing defendants' first affirmative defense based on comparative negligence and fifth affirmative defense based on the emergency doctrine is granted; and it is further ORDERED that apreliminary conference shall be held on April 20, 2022. This is an action to recover personal damages for injuries allegedly sustained by plaintiff when her vehicle, which was stopped, waiting to make a left turn at the intersection of Brook Street and Rollstone Avenue in West Sayville, NewYork, was struck by a vehicle owned by defendant Jeffrey Aurelio and operated by defendant Jennifer Aurelio. The accident allegedly occurred on June 17 ,2021, at approximately 5:20 P.m. plaintiff now moves for summary judgment in her favor on the issue of liability on the ground that she was not negligent, and that the subject accident was solely the result of defendant Jennifer judgment dismissing Aurelio,s failure to co-ntrol her vehicle. Plaintiff also moves for summary and fifth affirmative defense defendants, first affirmative defense based on comparative negligence based on the emergency doctrine. In support, plaintiff submits, inter alia, the pleadings and her eastbound on Brook affidavit. In her affidavit, plaintiff ur.rrihut prior to the accident, she had traveled waiting to make a left turn' While Street. She stopped at the intersection with Rollstone Avenue, in the rear by defendants' vehicle' stopped for approximately 20 seconds, her vehicle was struck vehicle from the rear is required to It is well settled that a driver of a vehicle approaching another under the prevailing conditions to avoid colliding maintain u ,.uronubly safe distance and rate of speed 1 of 2 FILED: SUFFOLK COUNTY CLERK 04/01/2022 09:38 AM INDEX NO. 616830/2021 NYSCEF DOC. NO. 21 RECEIVED NYSCEF: 04/01/2022 Bonkoski v Aurelio Index No. 61683012021 Page 2 with the other vehicle (see Vehicle and Traffic Law $ ll29 la]; Dolores v Grandpa's Bus Co., 789 AD3d 1539, 135 NYS3d 295l2dDept2020l; Capuozzo v Miller,l8S AD3d 1137,136 NYS3d 416l2d Dept2020l). Moreover, a rear-end collision with a stopped or stopping vehicle creates a prima facie case of liability regarding the operator of the moving vehicle and imposes a duty of explanation on the operator of the moving vehicle to excuse the collision by providing a non-negligent explanation, such as a mechanical failure, a sudden stop of the vehicle ahead, an unavoidable skidding on wet pavement or some other reasonable excuse (see Lopez v Suggs, I 86 AD3d 589, 126 NYS3d 67 6 [2d Dept 20201; Clements v Giatas, 178 AD3d 894, 895, 1 12 NYS3d 539 l2d Dept 20191 Fajardo v City of New York, 95 AD3d 820,943 NYS2d 587 l2dDept20l2l). Here, plaintiff made prima facie showing of her entitlement to judgment as a matter of law by a demonstrating that her vehicle was struck in the rear by defendants' vehicle. Plaintiff also established, prima facie, that she is entitled to summary judgment dismissing defendants' affirmative defenses alleging comparative negligence and the emergency doctrine by demonstrating that she was not at fault in the happening of the accident and that defendant Jennifer Aurelio's negligence was the sole proximate cause of the accident. The burden then shifted to defendants to come forward with a non-negligent explanation for the accident. In opposition, defendant failed to raise a triable issue of fact sufficient to defeat summary judgment. Defendants submit the affirmation of their attorney. The affirmation from an attorney having no personal knowledge of the facts is without evidentiary value and, thus, is insufficient to raise a triable issue of fact (see Zuckermqn v City of New York, 49 NY2d 557 , 427 NYS2d 595 [ 1980] ; Hubbard v County of Modison, 93 AD3d 939,939 NYS2d 619 [3d Dept20l2]; Sanabria v Paduch,6l AD3d 839, 876 NYS2d 874l2d Dept 20091; Prince v Accardo,54 AD3d 837, 863 NYS2d 819 [2d Dept 2008]). Thus, plaintiff s motion for summary judgment in her favor on the issue of liability and striking defendant's affirmative defenses based on comparative negligence and the emergency doctrine is granted. Dated: t l, t["- ISLEY, JR., J.S 2 of 2