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Rebecchi v. Whitmore

Appellate Division of the Supreme Court of New York, Second Department
Apr 8, 1991
172 A.D.2d 600 (N.Y. App. Div. 1991)

Summary

finding negligence liability and disregarding as irrelevant fact question of whether or not plaintiff was stopped or still in motion

Summary of this case from Prive v. Johnson

Opinion

April 8, 1991

Appeal from the Supreme Court, Suffolk County (Namm, J.).


Ordered that the order is reversed, on the law, with costs, the motion is granted, and the matter is remitted to the Supreme Court, Suffolk County, for a trial on the issue of damages.

On a motion for summary judgment the movant must establish his or her cause of action or defense sufficiently to warrant a court directing judgment in its favor as a matter of law (see, Frank Corp. v. Federal Ins. Co., 70 N.Y.2d 966; Alvarez v. Prospect Hosp., 68 N.Y.2d 320). "The party opposing the motion, on the other hand, must produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact" (Frank Corp. v. Federal Ins. Co., supra, at 967; GTF Mktg. v Colonial Aluminum Sales, 66 N.Y.2d 965). Mere conclusions or unsubstantiated allegations are insufficient to raise a triable issue (see, Frank Corp. v. Federal Ins. Co., supra).

Further, to grant summary judgment, it must clearly appear that no material triable issue of fact is presented. The burden on the court deciding this type of motion is not to resolve issues of fact or determine matters of credibility but merely to determine whether such issues exist (see, Barr v. County of Albany, 50 N.Y.2d 247; Daliendo v. Johnson, 147 A.D.2d 312, 317).

Applying these principles to this case, the proof submitted in support of the motion for summary judgment on the issue of fault, viz., the affidavit from the plaintiff, stating that her vehicle was at a complete stop for approximately 30 seconds when it was struck in the rear by the vehicle owned by the corporate defendant and driven by the defendant Kenneth Whitmore, was sufficient to establish as a matter of law that the defendants were solely at fault for this occurrence (see, Daliendo v Johnson, supra, at 321; Dickens v. Merritt, 123 A.D.2d 738, 739; Silberman v. Surrey Cadillac Limousine Serv., 109 A.D.2d 833). Compelled to lay bare their proof on this issue, the defendants submitted an attorney's affirmation together with an accident report made at the scene and excerpts from Whitmore's examination before trial. In the accident report, Whitmore admitted that he failed to keep the plaintiff's vehicle in constant view and when he looked up the plaintiff's vehicle had "stopped dead". In his deposition testimony, Whitmore not only admitted again that he failed to keep that vehicle in view, but also admitted failing to do so after observing it rolling to a stop. He later stated that when he looked up the plaintiff's vehicle was "almost stopped". This comports with the plaintiff's version of the events immediately prior to the accident. Therefore, no real issue of fact exists. Moreover, whether or not the plaintiff was already stopped or rolling to a stop, Whitmore was under a duty to maintain a safe distance between the two vehicles (see, Vehicle and Traffic Law § 1129 [a]) and his failure to do so, in the absence of an adequate explanation, constituted negligence as a matter of law which caused the accident (see, Silberman v. Surrey Cadillac Limousine Serv., supra, at 833). Mangano, P.J., Brown, Sullivan, Harwood and Miller, JJ., concur.


Summaries of

Rebecchi v. Whitmore

Appellate Division of the Supreme Court of New York, Second Department
Apr 8, 1991
172 A.D.2d 600 (N.Y. App. Div. 1991)

finding negligence liability and disregarding as irrelevant fact question of whether or not plaintiff was stopped or still in motion

Summary of this case from Prive v. Johnson

finding negligence liability and disregarding as irrelevant fact question of whether or not plaintiff was stopped or still in motion

Summary of this case from Krynski v. Chase
Case details for

Rebecchi v. Whitmore

Case Details

Full title:LORRAINE REBECCHI, Appellant, v. KENNETH WHITMORE et al., Respondents

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Apr 8, 1991

Citations

172 A.D.2d 600 (N.Y. App. Div. 1991)
568 N.Y.S.2d 423

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