Fraser v. Perlstein

1

2023 NY Slip Op 31659(U)

MICHELLE FRASER, Plaintiff, v. MEIR J. PERLSTEIN and JOHN DOE, name being fictitious and intended to be the owner of the vehicle operated by MEIR J. PERLSTEIN, Defendants.

Index No. 526557/2021, Motion Sequence No. 1

Supreme Court, Kings County

May 12, 2023

Unpublished Opinion

PRESENT: HON. CARL J. LANDICINO, Justice

DECISION AND ORDER

HON CARL J. LANDICINO, JUSTICE

Recitation as required by CPLR 2219(a), of the papers considered in the review of this motion:

Papers Numbered (NYSCEF) Notice of Motion/Cross Motion and Affidavits (Affirmations) Annexed .:........................................ 9-15, Opposing Affidavits (Affirmations).:........................................20 Reply Affidavits (Affirmations).:........................................24, After a review of the papers and oral argument, the Court finds as follows:

Plaintiff, Michelle Fraser (the "Plaintiff'), moves (motion sequence #1) for summary judgment on the issue of liability and dismissal of the affirmative defense(s) of comparative a negligence. Plaintiff alleges that while stopped for traffic, the vehicle purportedly owned by co defendant, JOHN DOE (the "Defendant Owner") and driven by co-defendant Meir J. Perlstein (the “Defendant Driver") collided with the rear of Plaintiff s vehicle. The collision allegedly occurred on August 27, 2020 on Avenue J, at or near its intersection with East 17^th Street, in the County of Kings, City and State of New York.

Summary judgment is a drastic remedy that deprives a litigant of his or her day in court, and it "should only be employed when there is no doubt as to the absence of triable issues of material fact." Kolivas v. Kirchoff, 14 A.D.3d 493, 787 N.Y.S.2d 392 [2d Dept 2005], citing Andre v. Pomeroy, 35 N.Y.2d 361, 364, 362N.Y.S.2d 1341 [1974], The proponent for summary judgment 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. See Sheppard-Mobley v. King, 10 A.D.3d 70, 74, 778 N.Y.S.2d 98 [2d Dept 2004], citing Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923 [1986], Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316 [1985]. "In determining a motion for summary judgment, evidence must be viewed in the light most favorable to the nonmoving party, and all reasonable inference must be resolved in favor of the nonmoving party." Adams v. Bruno, 124 A.D.3d 566, 566, 1 N.Y.S.3d 280, 281 [2d Dept 2015] citing Valentin v. Parisio, 119 A.D.3d 854, 989 N.Y.S.2d 621 [2d Dept 2014]; Escobar v. Velez, 116 A.D.3d 735, 983 N.Y.S.2d 612 [2d Dept 2014].

Once a moving party has made a prima facie showing of its entitlement to summary judgment, "the burden shifts to the opposing party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" Garnham & Han Real Estate Brokers v. Oppenheimer, 148 A.D.2d 493, 538 N.Y.S.2d 837 [2d Dept 1989]. Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers. See Demshick v. Cmty. Hous. Mgmt. Corp., 34 A.D.3d 518, 520, 824 N.Y.S.2d 166, 168 [2d Dept 2006]; see Menzel v. Plotnick, 202 A.D.2d 558, 558-559, 610N.Y.S.2d 50 [2d Dept 1994], However, "[a] plaintiff is no longer required to show freedom from comparative fault in establishing his or her prima facie case..." if they can show "...that the defendant's negligence was a proximate cause of the alleged injuries." Tsyganash v. Auto Mall Fleet Mgmt., Inc., 163 A.D.3d 1033, 1034, 83 N.Y.S.3d 74, 75 [2d Dept 2018]; Rodriguez v. City of New York, 31 N.Y.3d 312, 320, 101 N.E.3d 366, 371 [2018].

"A rear-end collision with a stopped or stopping vehicle establishes a prima facie case of negligence on the part of the operator of the rear vehicle..." Martinez v. Allen, 163 A.D.3d 951, 82 N.Y.S.3d 130 [2d Dept 2018]. Also, "[w]hen the driver of an automobile approaches another automobile from the rear, he or she is bound to maintain a reasonably safe rate of speed and control over his [or her] vehicle, and to exercise reasonable care to avoid colliding with the other vehicle." Gaeta v. Carter, 6 A.D.3d 576, 576, 775 N.Y.S.2d 86 [2d Dept. 2004]; see Vehicle and Traffic Law § 1129 [a]; Fergile v. Payne, 202 A.D.3d 928, 929, 163 N.Y.S.3d 216, 218 [2d Dept 2022]; Williams v. Spencer-Hall, 113 A.D.3d 759, 759-760, 979 N.Y.S.2d 157 [2d Dept 2014]; Taing v. Drewery, 100 A.D.3d 740, 741, 954 N.Y.S.2d 175 [2d Dept 2012].

Plaintiff provides her own affidavit. In her affidavit, Plaintiff states that [a]t the time of the subject accident, [she] was at a complete stop for traffic. [Her] car was completely within its lane of traffic when it was struck in the rear by the front of a vehicle bearing Connecticut Registration number 7ATWE8." Additionally, she states that "[a]t the time of the accident, my brake lights were in good and working order." (Pages 1-2). Plaintiff has made a prima facie showing of negligence on the part of the Defendant Driver and Plaintiffs freedom from comparative...