Defendants. -against- Defendants. MOTION SEQUENCE NOS. 5 and 7 ACTION NO. Third-Party Plaintiff. Third- Party Defendants. ACTION NO.

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1 c SHORT FORM ORDER SUPREME COURT - STATE OF NEW YORK Present: HON. STEVEN M. JAEGER, Acting Supreme Court Justice CAMILO CABALLERO ERICH PUNTARICH, METROPOLITAN SUBURBAN BUS AUTHORITY and JOSEPH MANCINI TRIAL/lAS, PART 43 NASSAU COUNTY INDEX NO. : MOTION SEQUENCE NOS. 5 and 7 ACTION NO. JOSEPH J. MANCINI Third-Party MOTION SUBMISSION DATE: ERI CH PUNTARICH and METROPOLITAN SUBURBAN BUS AUTHORITY Third- Party JOSEPH J. MANCINI Index No ACTION NO. METROPOLITAN SUBURBAN BUS AUTHORITY d/b/a MTA LONG ISLAND BUS and ERICH S. PUNTARICH

2 The following papers read on this motion: Notice of Motion, Affirmation, and Exhibits Affirmation in Opposition and Exhibit Reply Affirmation and Exhibits Notice of Cross-Motion, Affirmation and Exhibits Affirmation in Opposition and Exhibits (MSBA and Puntarich) Affrmation in Opposition (Caballero) Affirmation in Reply Defendants, Metropolitan Suburban Bus Authority and Erich Puntarich ("MSBA and Puntarich" ) move for an order pursuant to CPLR 3211 and 3212 granting summary judgment in their favor and dismissing Third-Party Joseph Mancini' Third- Party complaint in Action NO. 1 and Mancini' s complaint in Action NO. 2. in Action No., Joseph J. Mancini ("Mancini"), cross-moves for an order pursuant to CPLR 3212 granting him summary judgment against Defendants, MSBA and Puntarich. Both the motion and the cross-motion are denied. These actions are for personal injuries allegedly sustained when a bus and an SUV came into contact on July 1, 2008 at the intersection of Northern Boulevard and Lakeville Road/Middle Neck Road, Town of North Hempstead, County of Nassau, State of New York. in Action No., Camilo Caballero (" Caballero ) was a passenger in a bus owned by MSBA and operated by Puntarich when it came into contact with the SUV owned and operated by Defendant/hird-Party in Action No. 1 and in Action No., Mancini. (Caballero s direct action against MSBA and Puntarich was dismissed for violation of the statute of limitations.

3 .. ' MSBA and Puntarich allege that Puntarich was in the left turn lane on the eastbound side of Northern Boulevard and proceeded to turn left onto Middle Neck Road with a green left turn arrow. When he had almost completed the turn, the bus was struck on the rear right side by Mancini' s SUV, which was traveling in the right lane of the westbound side of Northern Boulevard. Mancini alleges that he was traveling in the right lane of the westbound side of Northern Boulevard when the bus suddenly made a left turn in front of his vehicle. In a motion for summary judgment the moving party bears the burden of making a prima facie showing that he or she is entitled to summary judgment as a matter of law, submitting sufficient evidence to demonstrate the absence of a material issue of fact. Silman v. Twentieth Century Fox Film Corp. 3 NY2D 395 (1957); Friends of Animals, Inc. v. Associates Fur Mfrs. 46 NY2d 1065 (1979); Zuckerman v. City of New York 49 NY2d 5557 (1980); Alvarez V. Prospect Hospital 68 NY2d 320 (1986). The failure to make such a showing requires denial of the motion, regardless of the suffciency of the opposing papers. Winegard v. New York University Medical Center, 64 NY2d 851 (1985). Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action. Zuckerman v. City of New York, supra. The primary purpose of a summary judgment motion is issue finding not issue determination Garcia v. J.C. Duggan, Inc. 180 AD2d 579 Dept. 1992), and it should only be granted when there are no triable issues offact. Andre v. Pomeroy, 35 NY2d 361 (1974).

4 .., The crux of MSBA' s and Puntarich' s argument is that the facts as put forth by Mancini do not attribute liability to MSBA and Puntarich because the testimony of Mancini and the affidavit of Stephen A. Coulon, an expert in the field of accident reconstruction and highway safety, are not credible. MSBA and Puntarich base this mainly on the speed, time, and distance calculations associated with Mancini' testimony that the bus suddenly made a left turn into the intersection at a rate of speed of 10 to 15 mph when Mancini was one to three car lengths from the intersection and traveling at a rate of speed of 35 to 40 mph. MSBA and Puntarich contend that based on the positioning of the vehicles at the moment of impact, which is not in dispute Mancini' s version cannot be believed even though Mr. Coulon supports it. MSBA' s and Puntarich' s argument is persuasive inasmuch as it is questionable if Mancini' s version of the accident coincides with the speed, time, and distance calculations put forth. However, whether the empirical evidence stands up to the testimony goes to the credibility of the witnesses. Issues of credibility should not be determined by the court on a motion for summary judgment. Stephen Fealy, M., P. V. State Farm Mut. Auto Ins. Co., 28 Misc. 3d 136(A) (N. Y. Sup. App. Term 2010) citing Venetal v. City of New York 21 AD3d 1083 (2 Dept. 2005) and Greco v. Posillco, 290 AD2d 532 (2 Dept. 2002). It is up to the jury to determine whether the testimony of Mancini and Mr. Conlon is credible, and ultimately whether the accident could have happened in the manner they allege.

5 As an issue of fact exists, MSBA and Puntarich have failed to establish entitlement to summary judgment. Accordingly, their motion is denied. For the same reason, Mancini's cross-motion for summary judgment is also denied. This constitutes the Decision and Order of the Court. Dated: October 3, 2011 EN EReD OCT NASSAU COUNTY county CLERK' S OFFtce