Opinion
Index No. 601940/2018 Mot. Seq. Nos. 01-MG 02-MG
07-08-2019
ELIZABETH RAMME, Plaintiff, v. SHEILA E. GIUGLIANO, Defendant SHEILAE. GIUGLIANO, Third-Patty Plaintiff, v. ALLISON E. RAMME, Third-Party Defendant
LEONICK LAW, PLLC Attorneys for Plaintiff LAW OFFICE OF JENNIFER S. ADAMS Attorneys for Defendant RUSSO & TAMBASCO Attorneys for Third Party Defendant Allison E. Ramme
Unpublished Opinion
MOTION DATE 4-12-2019
SUBMIT DATE 6-27-2019
LEONICK LAW, PLLC
Attorneys for Plaintiff
LAW OFFICE OF JENNIFER S. ADAMS
Attorneys for Defendant
RUSSO & TAMBASCO
Attorneys for Third Party Defendant Allison E. Ramme
Upon the following papers numbered 1 to 41 read on this motion for summary judgment: Notice of Motion/Order to Show Cause and supporting papers 1-15 (#01): Notice of Cross Motion and supporting papers 16 - 28 (#02); Answering Affidavits and supporting papers 29-33 (#01); Replying Affidavits and supporting papers 34 - 41(#01); Other __; (and after hearing counsel in support and opposed to the motion) it is, The third-party defendant, Allison E. Ramme, moves for an order granting summary judgment and dismissing the third-party complaint against her. The defendant/third-party plaintiff, Sheila E. Giugliano, opposes this application. The plaintiff cross moves for an order granting partial summary judgment on the issue of liability. There was no opposition to the cross motion.
A motion for summary judgment "shall be supported by affidavit, by a copy of the pleadings and by other available proof, such as depositions and written admission.
The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case (Friends of Animals v Associated Fur Mfrs., 46 N.Y.2d 1065, 416 N.Y.S.2d 790 [1979]). To grant summary judgment it must clearly appear that no material and triable Issue of fact is presented (Sillman v Twentieth Century-Fox Film Corporation, 3 N.Y.2d 395, 165 N.Y.S.2d 498 [1957]). Once such proof has been offered, the burden then shifts to the opposing party, who, In order to defeat the motion for summary judgment, must proffer evidence in admissible form . . . and must "show facts sufficient to require a trial of any issue of fact" CPLR3212 [b]; Gilbert Frank Corp. v Federal Insurance Co., 70 N.Y.2d 966, 525 N.Y.S.2d 793, 520 N.E.2d 512 [1988]; Zuckerman v City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595 [1980]). The opposing party must assemble, lay bare and reveal his proof in order to establish that the matters set forth in his pleadings are real and capable of being established (Castro v Liberty Bus Co., 79 A.D.2d 1014, 435 N.Y.S.2d 340 [2d Dept 1981]). Furthermore, the evidence submitted in connection with a motion for summary judgment should be viewed in the light most favorable to the party opposing the motion (Robinson v Strong Memorial Hospital, 98 A.D.2d 976, 470 N.Y.S.2d 239 [4th Dept 1983]).
On a motion for summary judgment the court is not to determine credibility, but whether there exists a factual issue (see S.J. Capelin Associates v Globe Mfg. Corp., 34 N.Y.2d 338, 357 N.Y.S.2d 478, 313 N.E.2d 776 (1974]). However, the court must also determine whether the factual issues presented are genuine or unsubstantiated (Prunty v Keltie's Bum Steer, 163 A.D.2d 595, 559 N.Y.S.2d 354 [2d Dept 1990]). If the issue claimed to exist is not genuine but is feigned and there is nothing to be tried then summary judgment should be granted (Prunty v Keltie's Bum Steer, supra, citing Glick & Doleck v Tri-Pac Export Corp., 22 N.Y.2d 439, 293 N.Y.S.2d 93, 239 N.E.2d 725 [1968]; Columbus Trust Co. v Campolo, 110 A.D.2d 616, 487 N.Y.S.2d 105 [2d Dept 1985], affd, 66 N.Y.2d 701, 496 N.Y.S.2d 425 487 NE2d282).
The plaintiff seeks the recovery of damages for personal injuries sustained as the result of a motor vehicle accident on November 3, 2017, on Stony Hollow Road at its intersection with Saratoga Avenue, Town of Huntington, County of Suffolk, State of New York. Plaintiff alleges that she was a passenger in a vehicle being operated by her daughter, third-party defendant Allison E Ramme which was traveling northbound on Stony Hollow Road. The plaintiff claims that the vehicle she was a passenger in was already in the middle of the intersection when the impact took place and that she was unsure if the Giugliano vehicle was making a left turn of "just floating into their lane" The plaintiff alleges that the Giugliano vehicle entered into the northbound lane of travel when the accident occurred The defendant/third-party plaintiff Giugliano contends that she was operating her vehicle traveling" southbound on Stony Hollow Road attempting to make a left hand turn onto Saratoga Avenue when the front of her vehicle made contact with the driver's side of the Ramme vehicle. The defendant/third-party plaintiff testified that she did not see the other vehicle prior to the accident. The third-party defendant testified that she was in the middle of the intersection when the accident occurred The third-party defendant also alleges that she first saw the defendant/third-party plaintiffs vehicle "two or three seconds before impact" it was "straddling the double yellow" lines. The third-party defendant's attorney contends that defendant/third-party plaintiff is the sole cause of the accident in that she was not paying attention while driving and did not see what was there to be seen.
The Court in Gabler v. Marly Bldg. Supply Corp., 27 A.D.3d 519, 520, 813 N.Y.S.2d 120 (App Div 2d Dep't 2006), held that
The defendants demonstrated their prima facie entitlement to judgment as a matter of law by establishing that the plaintiff violated Vehicle and Traffic Law § 1141 when he made a left turn directly into the path of the defendants' vehicle as it legally proceeded with the right of way (see Moreback v Mesquita, 17 A.D.3d 420, 793 N.Y.S.2d 148 [2005]; Torro v Schiller, 8 A.D.3d 364 777 N.Y.S.2d 915 [2004]; Casaregola v Farkouh, 1 A.D.3d 306, 767 N.Y.S.2d 57 [2003]; Rieman v Smith, 302 A.D.2d 510, 755 N.Y.S.2d 256 [2003]; Russo v Scibetti, 298 A.D.2d 514 748 N.Y.S.2d 871 [2002]; Agin v Rehfeldt, 284 A.D.2d 352, 726 N.Y.S.2d 131 [20011- Stiles v County of Dutches,, 278 A.D.2d 304, 717 N.Y.S.2d 325 [2000]). As the defendants' vehicle had the right of way, Lam was entitled to anticipate that the plaintiff would obey the traffic laws which required him to yield to the defendants' vehicle (see Bongiovi v Hoffman 18 A.D.3d 686, 795 N.Y.S.2d 354 [2005]; Moreback v Mesquita, supra; Russo v Scibetti supra; Agin v Rehfeldt, supra; Stiles v County of Dutches,, supra; Zambrano v Philhwan Seok, 277 A.D.2d 312, 715 N.Y.S.2d 750 [2000]; Cenovski v Lee, 266 A.D.2d 424 698 N.Y.S.2d 868 [1999])... he was negligent as a matter of law in failing to see that which he should have seen through the proper use of his senses (see Bongiovi v Hoffma, supra; Spatola v Gelco Corp., 5 A.D.3d 469, 733 N.Y.S.2d 101 [2004]; Breslin v Rudden, 291 A.D.2d 471, 788 N.Y.S.2d 674 [2002]; Agin v Rehfeldt, supra; Stiles v County of Dutches, supra; Zambrano v Philhwan Seok, supra; Bolta v Lohan, 242 A.D.2d 356, 661 N.Y.S.2d 286[1997]; see also Weigand v United Traction Co., 221 NY 39, 116 N.E. 345 [1917]).
Here third-party defendant Allison E. Ramme established a prima facie entitlement to judgment as a matter of law as to the third-party complain.. The defendant/third-party plaintiff was then required to troffer evidence in admissible form to show facts sufficient to require a trial of any issue of fact. In opposition to the motion defendant/third-party plaintiff did not rebut that prima facie entitlement, by showing that third-party defendant breached a duty owed to her. Plaintiffs, defendant/third-party plaintiff s and third-party defendant's version of the events leading up to the accident show that the Ramme vehicle had the right of way on the road when defendant/third-party plaintiffs vehicle turned left directly into it and caused the accident. Therefore the third-party defendant's motion for summary judgment and to dismiss the third-party complaint is granted.
Further the plaintiff established a prima facie entitlement to judgment as a matter of law. The defendant/third-parry plaintiff was then required to proffer evidence in admissible form to show facts sufficient to require a trial of any issue of fact. The defendant/third-party plaintiff failed to provide opposition to the cross motion, therefore the defendant failed to rebut the prima facie showing.
Accordingly, the motion by plaintiff for an order awarding partial summary judgment in her favor on the issue of liability is granted; and it is further
ORDERED that counsel for plaintiff shall serve a copy of this order upon opposing counsel and upon the Calendar Clerk of this court within twenty (20) days from the date of this order; and it is further
ORDERED that this action shall proceed to trial on the issue of damages.
The foregoing constitutes the decision and Order of this court.