Preview
FILED: NEW YORK COUNTY CLERK 11/14/2018 10:58 AM INDEX NO. 150318/2017
NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 11/14/2018
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
--------X
CALVIN ELLISON, Index # 150318/17E
Plaintiff, AFFIRMATION IN
SUPPORT
-against-
LTB MECHANICAL CORP. and MICHAEL BUTLER,
Defendants.
-- ------------------------------------X
STATE OF NEW YORK )
)SS
COUNTY OF BRONX )
JAMES NEWMAN, being an attorney duly licensed to practice law in the
State of New York affirms under penalty of perjury pursuant to Rule 2106 of the CPLR.
I am the attorney for the plaintiff herein and as such am fully farniliarwith
the facts and circumstances surro1mding this action and submit this affirmation in support
plaintiffs'
of motion seeking an Order pursuant to CPLR 3212 granting mmmary
judgmcñt on the issue of liability in favor of the plaintiff and against the defendant.
This is an action for personal injuries sustained by the plaintiff as a result
of a motor vehicle accident which occurred on October 26, 2016. At the time of the
accident plaintiff, CALVIN ELLISON, was the owner and operator of a motor vehicle
which struck in the rear by defendant's motor vehicle.
This accident occurred while the plaintiff's motor vehicle was stopped in
traffic on the Cross County Parkway westbound at or near the Yonkers Avenue exit,
Yonkers, New York. The plaintiff's car was stopped at the time of the accident and had
been stopped for approxirnately five (5) to ten (10) seconds before he was hit in the rear
by defendant's vehicle.
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As a result of the accident, the plaintiff was caused to sustain severe and
permanent injuries. Plaintiff CALVIN ELLISON sustained severe and permanent
injuries including but not limited to traumatic tear of the of the left shoulder necessitating
arthroscopic surgery.
In cases alleging negligence as the result of a motor vehicle accident, a
plaintiff establishes prima facie entitlement to mimmary judgment by demonstrating that
the defendant was negligent and that said negligence was the proximate cause of the
(2nd Land-
accident. Bodner v. Greenwald, 296 A.D.2d 564 Dept. 2000); Maxwell v.
(2nd
Saunders, 233 A.D.2d 303 99
The proponent of a motion for summary judgment carries the initial
burden of tendering sufficient admissible evidence to domanstrate the absence of a
material issue of fact as a matter of law. Alvarez v. Prospect Hospital, 68 N.Y.2d 320
(1986); Zuckerman v. City of New York, 49 N.Y.2d 557 (1980).
A rear-end collision with a stopped vehicle is prima facie evidence of
negligence on the part of the operator of the second, offending, and rear ending vehicle.
(1't
Johnson v. Phillips, 261 A.D.2d 269 Dept. 1999); Mitchell v. Gonzalez, 269 A.D.2d
(1"t (13t
250 Dept. 2000); Danza v. Longieliere, 256 A.D.2d 434 Dept. 1998);
(2nd
Carhuayano v. J & R Hacking, 28 A.D.3d 413 Dept. 2006).
When such facts are established, the operator of the moving, offending,
colliding vehicle is required to rebut the inference of negligence with a cognizable
excuse. The rationale being that when a vehicle is stopped anyone behind said vehicle is
charged with the duty of coming to a timely halt, Edney v. Metropolitan Suburban Bus
(2nd
Authority, 178 A;D.2d 398 Dept. 1991) and maintaining a safe distance between
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(2nd
itselfand the vehicle traveling in front of it. Rebecchi v. Whitmore, 172 A.D.2d 600
Dept. 1991)
Hence, a rear-end collision, when one of the vehicles is stopped, creates a
prima facie case of liability with respect to the operator of the moving, rear-ending
vehicle. Absent an excuse, itis negligence as a matter of law if a stopped vehicle is hitin
(1St
the rear. DeAngelis v. Kirschner, 171 A.D.2d 593 Dept. 1991).
(1"
The court in Johnson v. Phillips, 261 A.D.2d 269, 272 Dept. 1999)
held that "unrebuned testimony that a vehicle that had been at a complete stop for several
seconds when itwas struck in the rear by defendant's vehicle was sufficient as a matter of
defendant."
law to place sole responsibility for the accident with that
Accordingly, the plaintiff, in his Affidavit (Exhibit "A"), has provided that
he had been stopped in traffic for approximately five (5) to ten (10) sceends before he
was struck from behind by the defendant.
Additionally, annexed hereto and made hereof are photographs of
plaintiff's motor vehicle were marked defendants A-B at his deposition which clearly
depict property damage to the rear of his vehicle. (Exhibit "B")
The defendant's deposition was held on August 9, 2018. Annexed hereto
and made part hereof is defendant's deposition transcript. (Exhibit "C") On page 13,
lines 3 through 24 the defendant responded as follows:
Q. What portion of your vehicle was involved in the impact at the
time of the accident?
A. Front bumper.
Q. At the time of the accident was the vehicle ahead of you stopped,
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NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 11/14/2018
moving or something else?
A. Stopped.
Q. How long had the vehicle ahead of you been stopped before the
. .
impact occurred?
A. Probably less than 5 seconds.
It isclear that the defendant was traveling at an excessive rate of speed,
was traveling too closely and was unable to control his motor vehicle, thereby striking the
rear of plaintiff's stopped vehicle, and thus was 100% negligent in the occurrence of the
accident.
plaintiffs'
The sole, natural and proximate cause of the injuries resulted
from the defendant's rear-ending of plaintiff's vehicle. As such, the record in this case
does not support the conclusion that some excuse existed to insulate defendant from
d
liability for this collision. See DeAngelis v. Kirshner, 171 A.D.2d 593 (l Dept. 1991);
567 N.Y.S. 2d 457.
It iswell-settled that although negligence actions are not normally the
subject of surnmary judgment motions, the factual circumstances of this case will allow
the court to conclude that no genuine issue of fact exists and therefore summary judgment
is appropriate.
In order to oppose a motion for summary judgment, once the moving party
has met their burden of proof, the opponent must produce evidence in admissible form
sufficient to establish the existence of material issues of fact which would require a trial.
Bare allegations are insufficient to create gemline issue of fact to defeat the motion.
Amatulli v. Delhi Construction Corp., 77 N.Y.2d 525 (1991); Greenberg v. Coronet
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(14
Properties Co., 167 A.D.2d 291 Dept. 1980); New York National Bank v. Harris, 182
(2nd (2nd
A.D.2d 680 Dept. 1992); Rebcchi v. Whitmore, 172 A.d.2d 600 99
In the instant case, there is no proof sufficient to raise a triable issue of
fact with-regard to the happening of this accident, which would preclude a finding of
summary judgment in favor of the plaintiff.
It isrespectfully submitted that since the defendant struck the plaintiff's
stopped vehicle in the rear, summary judgment on the issue of liability must be granted.
It istherefore clear that there is no proof sufficient to raise a triable issue
of fact with regard to the happening of this accident, which would preclude sunnuasy
judgment on theissue of liability for plaintiff CALVIN ELLISON and against
defendant and that therefore judgment on must be granted to the
summary liability
plaintiff.
WHEREFORE, plaintiff requests an Order granting this motion in its
entirety and for such other and further relief as to this Court may deem just and proper.
DATED: Bronx, New York
November 14, 2018
J ES ÑEWMAN
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Preview
FILED: NEW YORK COUNTY CLERK 11/14/2018 10:58 AM INDEX NO. 150318/2017 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 11/14/2018 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK --------X CALVIN ELLISON, Index # 150318/17E Plaintiff, AFFIRMATION IN SUPPORT -against- LTB MECHANICAL CORP. and MICHAEL BUTLER, Defendants. -- ------------------------------------X STATE OF NEW YORK ) )SS COUNTY OF BRONX ) JAMES NEWMAN, being an attorney duly licensed to practice law in the State of New York affirms under penalty of perjury pursuant to Rule 2106 of the CPLR. I am the attorney for the plaintiff herein and as such am fully farniliarwith the facts and circumstances surro1mding this action and submit this affirmation in support plaintiffs' of motion seeking an Order pursuant to CPLR 3212 granting mmmary judgmcñt on the issue of liability in favor of the plaintiff and against the defendant. This is an action for personal injuries sustained by the plaintiff as a result of a motor vehicle accident which occurred on October 26, 2016. At the time of the accident plaintiff, CALVIN ELLISON, was the owner and operator of a motor vehicle which struck in the rear by defendant's motor vehicle. This accident occurred while the plaintiff's motor vehicle was stopped in traffic on the Cross County Parkway westbound at or near the Yonkers Avenue exit, Yonkers, New York. The plaintiff's car was stopped at the time of the accident and had been stopped for approxirnately five (5) to ten (10) seconds before he was hit in the rear by defendant's vehicle. 1 of 5 FILED: NEW YORK COUNTY CLERK 11/14/2018 10:58 AM INDEX NO. 150318/2017 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 11/14/2018 As a result of the accident, the plaintiff was caused to sustain severe and permanent injuries. Plaintiff CALVIN ELLISON sustained severe and permanent injuries including but not limited to traumatic tear of the of the left shoulder necessitating arthroscopic surgery. In cases alleging negligence as the result of a motor vehicle accident, a plaintiff establishes prima facie entitlement to mimmary judgment by demonstrating that the defendant was negligent and that said negligence was the proximate cause of the (2nd Land- accident. Bodner v. Greenwald, 296 A.D.2d 564 Dept. 2000); Maxwell v. (2nd Saunders, 233 A.D.2d 303 99 The proponent of a motion for summary judgment carries the initial burden of tendering sufficient admissible evidence to domanstrate the absence of a material issue of fact as a matter of law. Alvarez v. Prospect Hospital, 68 N.Y.2d 320 (1986); Zuckerman v. City of New York, 49 N.Y.2d 557 (1980). A rear-end collision with a stopped vehicle is prima facie evidence of negligence on the part of the operator of the second, offending, and rear ending vehicle. (1't Johnson v. Phillips, 261 A.D.2d 269 Dept. 1999); Mitchell v. Gonzalez, 269 A.D.2d (1"t (13t 250 Dept. 2000); Danza v. Longieliere, 256 A.D.2d 434 Dept. 1998); (2nd Carhuayano v. J & R Hacking, 28 A.D.3d 413 Dept. 2006). When such facts are established, the operator of the moving, offending, colliding vehicle is required to rebut the inference of negligence with a cognizable excuse. The rationale being that when a vehicle is stopped anyone behind said vehicle is charged with the duty of coming to a timely halt, Edney v. Metropolitan Suburban Bus (2nd Authority, 178 A;D.2d 398 Dept. 1991) and maintaining a safe distance between 2 of 5 FILED: NEW YORK COUNTY CLERK 11/14/2018 10:58 AM INDEX NO. 150318/2017 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 11/14/2018 (2nd itselfand the vehicle traveling in front of it. Rebecchi v. Whitmore, 172 A.D.2d 600 Dept. 1991) Hence, a rear-end collision, when one of the vehicles is stopped, creates a prima facie case of liability with respect to the operator of the moving, rear-ending vehicle. Absent an excuse, itis negligence as a matter of law if a stopped vehicle is hitin (1St the rear. DeAngelis v. Kirschner, 171 A.D.2d 593 Dept. 1991). (1" The court in Johnson v. Phillips, 261 A.D.2d 269, 272 Dept. 1999) held that "unrebuned testimony that a vehicle that had been at a complete stop for several seconds when itwas struck in the rear by defendant's vehicle was sufficient as a matter of defendant." law to place sole responsibility for the accident with that Accordingly, the plaintiff, in his Affidavit (Exhibit "A"), has provided that he had been stopped in traffic for approximately five (5) to ten (10) sceends before he was struck from behind by the defendant. Additionally, annexed hereto and made hereof are photographs of plaintiff's motor vehicle were marked defendants A-B at his deposition which clearly depict property damage to the rear of his vehicle. (Exhibit "B") The defendant's deposition was held on August 9, 2018. Annexed hereto and made part hereof is defendant's deposition transcript. (Exhibit "C") On page 13, lines 3 through 24 the defendant responded as follows: Q. What portion of your vehicle was involved in the impact at the time of the accident? A. Front bumper. Q. At the time of the accident was the vehicle ahead of you stopped, 3 of 5 FILED: NEW YORK COUNTY CLERK 11/14/2018 10:58 AM INDEX NO. 150318/2017 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 11/14/2018 moving or something else? A. Stopped. Q. How long had the vehicle ahead of you been stopped before the . . impact occurred? A. Probably less than 5 seconds. It isclear that the defendant was traveling at an excessive rate of speed, was traveling too closely and was unable to control his motor vehicle, thereby striking the rear of plaintiff's stopped vehicle, and thus was 100% negligent in the occurrence of the accident. plaintiffs' The sole, natural and proximate cause of the injuries resulted from the defendant's rear-ending of plaintiff's vehicle. As such, the record in this case does not support the conclusion that some excuse existed to insulate defendant from d liability for this collision. See DeAngelis v. Kirshner, 171 A.D.2d 593 (l Dept. 1991); 567 N.Y.S. 2d 457. It iswell-settled that although negligence actions are not normally the subject of surnmary judgment motions, the factual circumstances of this case will allow the court to conclude that no genuine issue of fact exists and therefore summary judgment is appropriate. In order to oppose a motion for summary judgment, once the moving party has met their burden of proof, the opponent must produce evidence in admissible form sufficient to establish the existence of material issues of fact which would require a trial. Bare allegations are insufficient to create gemline issue of fact to defeat the motion. Amatulli v. Delhi Construction Corp., 77 N.Y.2d 525 (1991); Greenberg v. Coronet 4 of 5 FILED: NEW YORK COUNTY CLERK 11/14/2018 10:58 AM INDEX NO. 150318/2017 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 11/14/2018 (14 Properties Co., 167 A.D.2d 291 Dept. 1980); New York National Bank v. Harris, 182 (2nd (2nd A.D.2d 680 Dept. 1992); Rebcchi v. Whitmore, 172 A.d.2d 600 99 In the instant case, there is no proof sufficient to raise a triable issue of fact with-regard to the happening of this accident, which would preclude a finding of summary judgment in favor of the plaintiff. It isrespectfully submitted that since the defendant struck the plaintiff's stopped vehicle in the rear, summary judgment on the issue of liability must be granted. It istherefore clear that there is no proof sufficient to raise a triable issue of fact with regard to the happening of this accident, which would preclude sunnuasy judgment on theissue of liability for plaintiff CALVIN ELLISON and against defendant and that therefore judgment on must be granted to the summary liability plaintiff. WHEREFORE, plaintiff requests an Order granting this motion in its entirety and for such other and further relief as to this Court may deem just and proper. DATED: Bronx, New York November 14, 2018 J ES ÑEWMAN 5 of 5