Preview
FILED: NASSAU COUNTY CLERK 05/12/2023 10:45 AM INDEX NO. 607333/2020
NYSCEF DOC. NO. 92 RECEIVED NYSCEF: 05/12/2023
EXHIBIT 8
FILED: NASSAU COUNTY CLERK 05/12/2023
06/18/2021 10:45
02:44 AM
PM INDEX NO. 607333/2020
NYSCEF DOC. NO. 92
45 RECEIVED NYSCEF: 05/12/2023
06/16/2021
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NASSAU —IAS Trial Part 11
Present: Hon. Sharon M.J. Gianelli
MARIA LERNER and KEITH LERNER,
Index No. 607333/2020
Plaintiffs,
Mot. Seq. No. 001
-against-
Decision and Order
SEAN A. MCLAUGHLIN,
TOWN OF OYSTER BAY,
LINCOLN D. ELLIOT and
STRICKLY SUFFOLK, INC.,
Defendants.
MM
Papers submitted:
Defendants Elliott and Strickly Suffolk, Inc.,
Notice of Motion
Defendants Elliott and Strickly Suffolk, Inc.,
Amended Notice of Motion
Defendants Elliott and Strickly Suffolk, Inc MoM
Affirmation in Support with Exhibits
Plaintiffs Affirmation in Opposition
Mm
Defendants Elliott and Strickly Suffolk, Inc.
Affirmation in Reply
This is Defendants Lincoln D. Elliot and Strickly Suffolk, Inc.’s motion for an Order of
the Court granting them summary judgment pursuant to CPLR 3212, dismissing the
complaint and all cross-claims as against them on the issue of liability.
The underlying action is one to recover for personal injuries allegedly sustained by
Plaintiffs in a multi-vehicle accident on November 15, 2018, at 3:55 p.m., on North
Broadway near the intersection of Boston Ave. in the hamlet of North Massapequa and
the Town of Oyster Bay, New York. Each Plaintiff appeared for a 50-H hearing on
August 28, 2019.
1 of 6
FILED: NASSAU COUNTY CLERK 05/12/2023
06/18/2021 10:45
02:44 AM
PM INDEX NO. 607333/2020
NYSCEF DOC. NO. 92
45 RECEIVED NYSCEF: 05/12/2023
06/16/2021
Plaintiffs commenced the action by filing a Summons and Complaint in Supreme Court,
Suffolk County, on September 30, 2019. Defendants Sean A. McLaughlin and Town of
Oyster Bay joined issue on or about November 19, 2019. Defendants Lincoln D. Elliot
and Strickly Suffolk, Inc. joined issue on or about February 3, 2020.
By Order, dated February 20, 2020, the Supreme Court, Suffolk County, granted
Defendants Lincoln D. Elliot and Strickly Suffolk, Inc.’s motion to change venue to
Supreme Court, Nassau County (Baisley, J.).
Background/History
North Broadway is a two-way street separated by a double-yellow line with two lanes
traveling in each direction separated by dotted white lines. At the time of the accident,
Plaintiff Maria Lerner was driving a 2013 Chevrolet in which her husband, Plaintiff
Keith Lerner, was a front- seat passenger, while Defendant Sean McLaughlin was
driving a 2015 International dump truck, which was owned by Defendant Town of
Oyster Bay. Defendant Lincoln Elliott was driving a 2009 Lincoln, which was owned by
Defendant Strickly Suffolk, Inc.
Plaintiff Maria Lerner testified at her 50-H hearing that she was driving 20 mph in
snowy conditions in the right lane of northbound North Broadway when she saw
Defendant Sean McLaughlin’s vehicle for the first time about a half of a block away on
North Boston Avenue attempting to turn right onto North Broadway. Plaintiff Maria
Lerner testified that she tried to go to the left lane to avoid Defendant Sean
McLaughlin’s vehicle which did not stop at the stop sign on North Boston Avenue while
2 of 6
FILED: NASSAU COUNTY CLERK 05/12/2023
06/18/2021 10:45
02:44 AM
PM INDEX NO. 607333/2020
NYSCEF DOC. NO. 92
45 RECEIVED NYSCEF: 05/12/2023
06/16/2021
turning right onto North Broadway, but Defendant McLaughlin’s vehicle struck the
passenger side front fender of Plaintiff Maria Lerner’s vehicle. Plaintiff Maria Lerner
further testified that the impact caused her vehicle to be pushed over the double yellow
lines into the opposing lanes of North Broadway where it was struck on the passenger
side by another vehicle, with the first and second impacts occurring within seconds.
Plaintiff Keith Lerner testified at his 50-H hearing that while traveling in the right lane
of North Broadway, he saw Defendant McLaughlin’s vehicle “a few seconds” before the
accident traveling west on North Boston Avenue less than 5 mph when he attempted to
make a right turn onto North Broadway. Plaintiff Keith Lerner warned his wife Maria
Lerner that Defendant McLaughlin’s vehicle was not going to stop at the stop sign and
she started to go into the lane to the left to avoid an accident, but Defendant
McLaughlin’s vehicle struck the passenger side front bumper while they were still in the
right lane of North Broadway. Plaintiff Keith Lerner further testified that the impact
caused Plaintiffs’ vehicle to be “shot across the road” sideways over the double yellow
lines towards the curb on the opposite side of North Broadway where it had a second
impact on the passenger side with another vehicle.
Prior to the accident, Defendant Elliot was traveling in the right lane on southbound
North Broadway for approximately ten minutes at 15 mph due to snowy conditions
while Plaintiff Maria Lerner was traveling northbound on North Broadway in the right
lane.
3 of 6
FILED: NASSAU COUNTY CLERK 05/12/2023
06/18/2021 10:45
02:44 AM
PM INDEX NO. 607333/2020
NYSCEF DOC. NO. 92
45 RECEIVED NYSCEF: 05/12/2023
06/16/2021
While Defendant Elliot was traveling in the right lane on southbound North Broadway,
the dump truck driven by Defendant McLaughlin with an attached snowplow blade
entered onto northbound North Broadway from the intersection of Boston Road without
stopping at the stop sign, causing Plaintiffs’ vehicle to swerve to the left from the right
lane of northbound North Broadway and within one to two seconds, cross over the
double yellow lines into the right lane of southbound North Broadway, colliding with the
front end of the vehicle driven by Defendant Elliot.
Plaintiffs assert that the facts as to how the accident occurred are essentially
undisputed; however, Plaintiffs oppose the summary judgment motion. Plaintiffs note
that in the moving Defendants’ affidavits, Defendant Elliot swears, “I saw the co-
defendants’ dump truck with an attached snowplow blade enter onto northbound North
Broadway from the intersection of Boston Road without stopping at the stop sign.” Asa
result of the snowplow running the stop sign and colliding with Plaintiffs’ car on the
northbound side of North Broadway, Plaintiffs’ vehicle was caused to cross over and the
front of Plaintiffs’ car hit the curb on the opposite side of the roadway. After striking the
curb, Plaintiffs’ car was stopped positioned across the moving Defendants’ right
southbound travel lane.
Plaintiffs argue that despite the material factual accuracy, the movants fail to state in
their affidavit how much time elapsed from when the driver saw the snowplow run the
red light and when he struck the passenger side of Plaintiffs’ stopped vehicle. Further,
the affidavit does not state what, if any, action Defendant Elliot took in order to avoid
striking the side of Plaintiffs’ stopped vehicle.
4 of 6
FILED: NASSAU COUNTY CLERK 05/12/2023
06/18/2021 10:45
02:44 AM
PM INDEX NO. 607333/2020
NYSCEF DOC. NO. 92
45 RECEIVED NYSCEF: 05/12/2023
06/16/2021
Plaintiffs highlight that their vehicle was stopped for seconds and in the case of Plaintiff
Keith Lerner, that the Plaintiffs’ vehicle was stopped for five seconds after it struck the
curb and was positioned across the movants’ right southbound travel lane. Plaintiffs
assert that accepting this as true, there was ample time for the movants to stop without
driving into the side of Plaintiffs’ stopped car, especially as Defendant Elliot claims that
he was traveling only 15 mph before the collision. Plaintiffs conclude that there are
multiple triable issues of fact regarding whether the moving Defendant driver acted
reasonably in the operation of his vehicle in failing to stop and/or to otherwise avoid
driving into the side of Plaintiffs’ stopped vehicle. According to Plaintiffs, material issues
of fact exist concerning these questions, which preclude an award of summary judgment
on liability.
Law/Analysis
Pursuant to CPLR 3212, a motion for summary judgment “shall be granted if, upon all
the papers and proof submitted, the cause of action or defense shall be established
sufficiently to warrant the court as a matter of law in directing judgment in favor of any
party.” Therefore, a grant of summary judgment is appropriate where the movant
“tender[s] sufficient evidence to demonstrate the absence of any material issues of fact.
Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986]. Summary judgment is a “drastic
remedy and should not be granted where there is any doubt as to the existence of a
triable issue”. Stukas v. Streiter, 83 AD3d 18, 23 [2d Dept 2011].
Upon review and consideration of all papers submitted, the movants herein have fallen
short in demonstrating the absence of any material issues of fact concerning their
5 of 6
FILED: NASSAU COUNTY CLERK 05/12/2023
06/18/2021 10:45
02:44 AM
PM INDEX NO. 607333/2020
NYSCEF DOC. NO. 92
45 RECEIVED NYSCEF: 05/12/2023
06/16/2021
liability in connection with this multi-vehicle accident.
Accordingly,
It is
ORDERED, that Defendants Lincoln D. Elliot and Strickly Suffolk, Inc.’s motion for an
Order of the Court granting them summary judgment pursuant to CPLR 3212 and
dismissing the complaint and all cross-claims as against them on the issue of liability, is
Denied; and
It is
ORDERED, that the parties are directed to electronically file a Preliminary Conference
request within thirty (30) days of the date of this Order.
Any application not specifically ruled upon herein is denied.
This constitutes the Decision and Order of the Court.
DATED: Mineola, New York
June 9, 2021
Jhon Ae)
Aa
~\
we %
ENTERED ES
HONisn.ARON § of. CHANELES
J un 1 8 20 2 1 Aaptiog a!the Sogeemns Eat
NASSAU COUNTY
COUNTY CLERK'S OFFICE
The oanformad signature on this Order and copies
thersoy shall be deemed original.
6 of 6
Preview
FILED: NASSAU COUNTY CLERK 05/12/2023 10:45 AM INDEX NO. 607333/2020 NYSCEF DOC. NO. 92 RECEIVED NYSCEF: 05/12/2023 EXHIBIT 8 FILED: NASSAU COUNTY CLERK 05/12/2023 06/18/2021 10:45 02:44 AM PM INDEX NO. 607333/2020 NYSCEF DOC. NO. 92 45 RECEIVED NYSCEF: 05/12/2023 06/16/2021 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU —IAS Trial Part 11 Present: Hon. Sharon M.J. Gianelli MARIA LERNER and KEITH LERNER, Index No. 607333/2020 Plaintiffs, Mot. Seq. No. 001 -against- Decision and Order SEAN A. MCLAUGHLIN, TOWN OF OYSTER BAY, LINCOLN D. ELLIOT and STRICKLY SUFFOLK, INC., Defendants. MM Papers submitted: Defendants Elliott and Strickly Suffolk, Inc., Notice of Motion Defendants Elliott and Strickly Suffolk, Inc., Amended Notice of Motion Defendants Elliott and Strickly Suffolk, Inc MoM Affirmation in Support with Exhibits Plaintiffs Affirmation in Opposition Mm Defendants Elliott and Strickly Suffolk, Inc. Affirmation in Reply This is Defendants Lincoln D. Elliot and Strickly Suffolk, Inc.’s motion for an Order of the Court granting them summary judgment pursuant to CPLR 3212, dismissing the complaint and all cross-claims as against them on the issue of liability. The underlying action is one to recover for personal injuries allegedly sustained by Plaintiffs in a multi-vehicle accident on November 15, 2018, at 3:55 p.m., on North Broadway near the intersection of Boston Ave. in the hamlet of North Massapequa and the Town of Oyster Bay, New York. Each Plaintiff appeared for a 50-H hearing on August 28, 2019. 1 of 6 FILED: NASSAU COUNTY CLERK 05/12/2023 06/18/2021 10:45 02:44 AM PM INDEX NO. 607333/2020 NYSCEF DOC. NO. 92 45 RECEIVED NYSCEF: 05/12/2023 06/16/2021 Plaintiffs commenced the action by filing a Summons and Complaint in Supreme Court, Suffolk County, on September 30, 2019. Defendants Sean A. McLaughlin and Town of Oyster Bay joined issue on or about November 19, 2019. Defendants Lincoln D. Elliot and Strickly Suffolk, Inc. joined issue on or about February 3, 2020. By Order, dated February 20, 2020, the Supreme Court, Suffolk County, granted Defendants Lincoln D. Elliot and Strickly Suffolk, Inc.’s motion to change venue to Supreme Court, Nassau County (Baisley, J.). Background/History North Broadway is a two-way street separated by a double-yellow line with two lanes traveling in each direction separated by dotted white lines. At the time of the accident, Plaintiff Maria Lerner was driving a 2013 Chevrolet in which her husband, Plaintiff Keith Lerner, was a front- seat passenger, while Defendant Sean McLaughlin was driving a 2015 International dump truck, which was owned by Defendant Town of Oyster Bay. Defendant Lincoln Elliott was driving a 2009 Lincoln, which was owned by Defendant Strickly Suffolk, Inc. Plaintiff Maria Lerner testified at her 50-H hearing that she was driving 20 mph in snowy conditions in the right lane of northbound North Broadway when she saw Defendant Sean McLaughlin’s vehicle for the first time about a half of a block away on North Boston Avenue attempting to turn right onto North Broadway. Plaintiff Maria Lerner testified that she tried to go to the left lane to avoid Defendant Sean McLaughlin’s vehicle which did not stop at the stop sign on North Boston Avenue while 2 of 6 FILED: NASSAU COUNTY CLERK 05/12/2023 06/18/2021 10:45 02:44 AM PM INDEX NO. 607333/2020 NYSCEF DOC. NO. 92 45 RECEIVED NYSCEF: 05/12/2023 06/16/2021 turning right onto North Broadway, but Defendant McLaughlin’s vehicle struck the passenger side front fender of Plaintiff Maria Lerner’s vehicle. Plaintiff Maria Lerner further testified that the impact caused her vehicle to be pushed over the double yellow lines into the opposing lanes of North Broadway where it was struck on the passenger side by another vehicle, with the first and second impacts occurring within seconds. Plaintiff Keith Lerner testified at his 50-H hearing that while traveling in the right lane of North Broadway, he saw Defendant McLaughlin’s vehicle “a few seconds” before the accident traveling west on North Boston Avenue less than 5 mph when he attempted to make a right turn onto North Broadway. Plaintiff Keith Lerner warned his wife Maria Lerner that Defendant McLaughlin’s vehicle was not going to stop at the stop sign and she started to go into the lane to the left to avoid an accident, but Defendant McLaughlin’s vehicle struck the passenger side front bumper while they were still in the right lane of North Broadway. Plaintiff Keith Lerner further testified that the impact caused Plaintiffs’ vehicle to be “shot across the road” sideways over the double yellow lines towards the curb on the opposite side of North Broadway where it had a second impact on the passenger side with another vehicle. Prior to the accident, Defendant Elliot was traveling in the right lane on southbound North Broadway for approximately ten minutes at 15 mph due to snowy conditions while Plaintiff Maria Lerner was traveling northbound on North Broadway in the right lane. 3 of 6 FILED: NASSAU COUNTY CLERK 05/12/2023 06/18/2021 10:45 02:44 AM PM INDEX NO. 607333/2020 NYSCEF DOC. NO. 92 45 RECEIVED NYSCEF: 05/12/2023 06/16/2021 While Defendant Elliot was traveling in the right lane on southbound North Broadway, the dump truck driven by Defendant McLaughlin with an attached snowplow blade entered onto northbound North Broadway from the intersection of Boston Road without stopping at the stop sign, causing Plaintiffs’ vehicle to swerve to the left from the right lane of northbound North Broadway and within one to two seconds, cross over the double yellow lines into the right lane of southbound North Broadway, colliding with the front end of the vehicle driven by Defendant Elliot. Plaintiffs assert that the facts as to how the accident occurred are essentially undisputed; however, Plaintiffs oppose the summary judgment motion. Plaintiffs note that in the moving Defendants’ affidavits, Defendant Elliot swears, “I saw the co- defendants’ dump truck with an attached snowplow blade enter onto northbound North Broadway from the intersection of Boston Road without stopping at the stop sign.” Asa result of the snowplow running the stop sign and colliding with Plaintiffs’ car on the northbound side of North Broadway, Plaintiffs’ vehicle was caused to cross over and the front of Plaintiffs’ car hit the curb on the opposite side of the roadway. After striking the curb, Plaintiffs’ car was stopped positioned across the moving Defendants’ right southbound travel lane. Plaintiffs argue that despite the material factual accuracy, the movants fail to state in their affidavit how much time elapsed from when the driver saw the snowplow run the red light and when he struck the passenger side of Plaintiffs’ stopped vehicle. Further, the affidavit does not state what, if any, action Defendant Elliot took in order to avoid striking the side of Plaintiffs’ stopped vehicle. 4 of 6 FILED: NASSAU COUNTY CLERK 05/12/2023 06/18/2021 10:45 02:44 AM PM INDEX NO. 607333/2020 NYSCEF DOC. NO. 92 45 RECEIVED NYSCEF: 05/12/2023 06/16/2021 Plaintiffs highlight that their vehicle was stopped for seconds and in the case of Plaintiff Keith Lerner, that the Plaintiffs’ vehicle was stopped for five seconds after it struck the curb and was positioned across the movants’ right southbound travel lane. Plaintiffs assert that accepting this as true, there was ample time for the movants to stop without driving into the side of Plaintiffs’ stopped car, especially as Defendant Elliot claims that he was traveling only 15 mph before the collision. Plaintiffs conclude that there are multiple triable issues of fact regarding whether the moving Defendant driver acted reasonably in the operation of his vehicle in failing to stop and/or to otherwise avoid driving into the side of Plaintiffs’ stopped vehicle. According to Plaintiffs, material issues of fact exist concerning these questions, which preclude an award of summary judgment on liability. Law/Analysis Pursuant to CPLR 3212, a motion for summary judgment “shall be granted if, upon all the papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party.” Therefore, a grant of summary judgment is appropriate where the movant “tender[s] sufficient evidence to demonstrate the absence of any material issues of fact. Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986]. Summary judgment is a “drastic remedy and should not be granted where there is any doubt as to the existence of a triable issue”. Stukas v. Streiter, 83 AD3d 18, 23 [2d Dept 2011]. Upon review and consideration of all papers submitted, the movants herein have fallen short in demonstrating the absence of any material issues of fact concerning their 5 of 6 FILED: NASSAU COUNTY CLERK 05/12/2023 06/18/2021 10:45 02:44 AM PM INDEX NO. 607333/2020 NYSCEF DOC. NO. 92 45 RECEIVED NYSCEF: 05/12/2023 06/16/2021 liability in connection with this multi-vehicle accident. Accordingly, It is ORDERED, that Defendants Lincoln D. Elliot and Strickly Suffolk, Inc.’s motion for an Order of the Court granting them summary judgment pursuant to CPLR 3212 and dismissing the complaint and all cross-claims as against them on the issue of liability, is Denied; and It is ORDERED, that the parties are directed to electronically file a Preliminary Conference request within thirty (30) days of the date of this Order. Any application not specifically ruled upon herein is denied. This constitutes the Decision and Order of the Court. DATED: Mineola, New York June 9, 2021 Jhon Ae) Aa ~\ we % ENTERED ES HONisn.ARON § of. CHANELES J un 1 8 20 2 1 Aaptiog a!the Sogeemns Eat NASSAU COUNTY COUNTY CLERK'S OFFICE The oanformad signature on this Order and copies thersoy shall be deemed original. 6 of 6