-.l. SHORT FORM ORDER SUPREME COURT - STATE OF NEW YORK Present: HON. F. DANA WINSLOW, Justice TRIALIIAS, PART 7 NICK KORINIS and LINDA A.

Transcription

1 ".."""" l SHORT FORM ORDER SUPREME COURT - STATE OF NEW YORK Present: HON. F. DANA WINSLOW, Justice TRIALIIAS, PART 7 NICK KORINIS and LINDA A. KORINIS, NASSAU COUNTY -against- Plaintiffs, MOTION DATE: 6/24/08 MOTION SEQ. NO: 001 MI KYONG LIMB and CHOO SUK LIMB, Defendants. INDEX NO.: 1430/08 The following papers having been read on the motion tnumbered 1-3): Notice of Mo tio D.... tie Affirmation in Op positi 0 D Reply Affirma tio D Motion by defendants Mi Kyong Limb and Choo Suk Limb for an order awarding them sumary judgment and dismissing the complaint is denied. This action arises out of an accident which occurred on April 10, The complaint alleges that on April 10, 2007 plaintiff was operating his vehicle on Route 347 at or near its intersection with Southern Boulevard in the Town of Smithtown, and that defendant Mi Kyong Limb was operating a vehicle owned by defendant Choo Suk Limb carelessly and negligently" so as to cause and permit it to "run into and collde with" plaintiffs vehicle. The admissible evidence submitted in support of the summary judgment motion consists of an affidavit by plaintiff Nick Korinis, Mi Kyong Limb' s MV 104 insurance statement, the police report and an inter-company arbitration award for propert damage the amount of $ The police report does not indicate that the defendant was issued a summons for a

2 A!" violation of the Vehicle & Traffic Law. Defendant' s MV 104 indicates that she was making a U-Tur and that plaintiff was going straight at the time of the accident. The accident diagram indicates that defendant was in the intersection of the westbound lane of traffic when it was struck by plaintiff s vehicle in the front passenger side door. Neither defendant Limb nor her carrier appeared to defend at the inter-company arbitration. The sum total of plaintiffs affidavit describing how the accident occured is as follows: I was operating my 1995 Toyota... along the westbound lanes of Route when Defendant' s vehicle... suddenly and without waring made a U-Tur into the path of my vehicle. Plaintiffs bare-bones affidavit is simply insufficient t establish a prima facie case as a matter of law. Although a left turn collsion often results in summar judgment for the non-tuing driver, such motions are also ordinarily made after depositions and upon a full record (see g. Moreback v. Mesquita 17 AD3d 420 (2d Dept 2005)). The relevant and material facts include the drivers' speed, what was seen and there to be seen, and whether appropriate measures were taken to avoid a collsipn. Here no such details are presented in the affidavit in support, indeed, plaintiff does not even aver that he was law/ Jly operating his vehicle within the relevant speed limit. It is well settled that the proponent of a sumary judgment motion must make out a prima facie case as a matter of law offering sufficient evidence to eliminate any material questions of fact (Winegrad v. New York Univ. Med Center 64 NY2d (1985)). Since it deprives the litigant of his day in court sumary judgment "is considered a drastic remedy which should only be employed when there is no doubt as to the absence of triable issues (Andre v. Pomeroy, 35 NY2d (1974)). In a negligence suit a plaintiff wil generally be entitled to sumary judgment" ' only in cases in which there is no conflict at all in the evidence, the defendant's conduct fell far below any permissible standard of due

3 , " care, and the plaintiffs conduct either was not really involved (such as with a passenger) or was clearly of exemplar prudence in the circumstances (Andre v. Pomeroy, supra ). Plaintiff Nick Korinis was not a passenger, and as a driver his conduct was in issue. He has not in any way attempted to show that his conduct was of "exemplar prudence the circumstances. Thus his abbreviated affidavit failed to sustain his burden to show that he was free from negligence in the happening of the accident. Regardless of the sufficiency of the opposing papers, a movant' s failure to meet its burden of proof mandates denial of the motion (1014 Fifh Ave. Realty Corp. v The Manhattan Realty Co. 67 NY2d 718(1986)). Accordingly, even were defendant driver Limb' s affidavit insufficient to raise a factual issue, the motion must be denied. A review of the affidavit in opposition and reply, however, is relevant to an additional ground to deny summar judgment. Without depositions, the paries' statements regarding the happening of the accident are insufficient to fully inform the cour regarding the circumstances of the accident and it canot be ascertained whether one par's conduct fell "far below any permissible standard of due care (Andre v Pomeroy, 35 NY2d 361 (1974)). In opposition, Mi Kyong Limb submits her affidavit stating that at the time she was attempting to make a U-Turn, she brought her vehicle to a complete stop in a northerly direction for at least ten seconds "while waiting for westbound traffic to let up. She stated that she was able to see approximately 500 feet to her right into the westbound traffic on Route 347. Shortly after entering Route 347 her vehicle was struck " extremely hard" on the passenger s side. She stated that although she did not see plaintiffs vehicle prior to the impact the force of the impact" led her to believe that the plaintiffs vehicle " was traveling at a high rate of speed". At no time did defendant "hear any... horns or the screeching of any tires.

4 " )). In reply plaintiff avers that he was driving westbound for about one mile at a speed of 50 mph and that "when Defendant' s vehicle tued into the path of my car, I had no time to stop the car. With respect to this affidavit, it must be noted, that the newly raised evidence in plaintiffs reply papers cannot be used to satisfy his prima facie case (Rengifo v. City of New York 7 AD3d 773 (2d Dept 2004)(" to meet its prima facie burden, Shareen could not rely on the evidence submitted for the first time in its reply papers Turing to discussion of the additional ground to deny summary judgment, not every left turning driver is totally responsible for a collsion with a straightaway driver (Saint v. u.s., 483 F.Supp.2d (EDNY 2007); see also Perez v. Brux Cab Corp. 251 AD2d 157 (1st Dept. 18, 1998)), unlike a rear end collsion with a stopped vehicle (see, e.g., Arias v. Rosario 52 A.D.3d 551, 552 (2d Dept 2008)), or a cross over accident (see Pfafenbach v White Plains Express Corp. 17 NY2d 132, 135 (1966)). Depositions are necessar here to flesh out the circumstances surrounding the accident and shed light upon the acts or omissions of the paries. A driver who is going straight and colldes with a tuing vehicle could be negligent in many ways, unlike the innocent stopped vehicle hit in the rear. For example such driver could be momentarily distracted (see, e. g., Fernet v. Morvillo, 30 AD3d 670 (3d Dept 2006)), could be speeding and thus beyond the measured distance one entering an intersection might inspect (see, e.g., Perez v. Bru Cab Corp. 251 AD2d 157 (1998); Saint v. U.S., 483 F. Supp.2d 267(E. Y. 2007)), or such driver could have impaired abilty due to intoxication or some other factor (see, e.g., Boston v. Dunham, 274 AD2d 708 (3d Dep 2000)). Accordingly, the motion for summary judgment is denied without prejudice to renewal upon the completion of disclosure. Plaintiff has also submitted what appears to be an arbitration award, however, he has not advanced any authority or argument in the nature of collateral estoppel to support a prima facie case. Although the Arbitration Forum, Inc. award states that it considered and denied the affirmative defense, no attorney appeared on behalf of defendant Limb' s carier

5 '" \! / for the minor propert damage claim. The court has discovered no authority holding that a determination in a mandatory inter-company arbitration for propert damage of less than $5,000 is determinative and binding with respect to liabilty in a personal injury action commenced after the arbitration has concluded. Moreover, it is unkown whether the defendant driver was insured under the owner s policy and thus whether she can be considered in privity or to have a " unity of interest" with the insurance carier Casolino v. Baynes 157 AD2d 699, 700 (2d Dept 1990) The doctrine of collateral estoppel is a flexible one that is premised on fairness (Casolino v. Baynes 157 AD2d 699, 700 (2d Dept 1990)). It is patently evident that there was no vigorous defense advanced on behalf of defendant Mi Kyong Limb. And, as no personal injury action had been commenced, there appeared to be no cost incentive to actively defend by attorney what amounts to a relatively minor claim. Accordingly, defendant Limb who apparently had no notice of the arbitration hearing, did not defend with full vigor and opportunity to be heard" (B. R. DeWitt, Inc. v. Hall 19 N. 2d (1967); but see, Matter of American Ins. Co. (Messinger), 43 NY2d 184 (1977)(insurer collaterally estopped from disclaiming based upon prior inter-company arbitration determination)). Accordingly, Mi Kyong Limb is not subject to collateral estoppel on the issue of liability. : 1 :::e;urt. ENTER: (see ENTERr;r DEC 12?008 COUNTY NASSAU COu,,, ClF,?, I(' f. n ':,r..