Samiev v. Academy Transp. Inc.

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Samiev v Academy Transp. Inc. 2025 NY Slip Op 31072(U) April 2, 2025 Supreme Court, Kings County Docket Number: Index No. 508380/2024 Judge: Anne J. Swern Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication.

FILED: KINGS COUNTY CLERK 04/02/2025 03:52 PM INDEX NO. 508380/2024 NYSCEF DOC. NO. 63 RECEIVED NYSCEF: 04/02/2025

.,. At an IAS Trial Term, Part75of the Supreine Court oftheState of New York, Kings County, at the Courthouse located at 360Adams Street, BrQoklyn, New York on the 2nd day ofApril 2025. PRESENT: HON. ANNE J. SWERN, J.S.C.

MEKHROJ DILSHODOVICH SAMIEV, DECISION & ORDER Plaintiff, Index No.: 508380/2024

-against- Calendar No.: 38

ACADElvIY TRANSPORTATION INC., Motion Seq.: 002 JOHN DOE; andARTEM USHAKOV

Defendants.

Recitation ofthefollowingpdpers as required by CPLR 22l9(a): Papers Numbered Notice ofMotion, Affitrtiation, Affidavits and Exhibits {NYSCEF 34-48) ............ ,.... ,........ ,.. ,.......... ,..................... ,., ...•. ,... 1, 2 Academy's Affirmation and Exhibits in Opposition (NYSCEF 54-55) ............... 3 Ushakov's Affirmation in Partial Opposition(NYSCEF 56) ............... ,............... ,⁴ Reply Affirmation and Exhibits (NYSCEF 59-62)., ................... ;......................... 5

Order to Show Cause, Affirmation, Affidavits and Exhibits (NYSCEF } ............. . Affmilation and Exhibits in Opposition (NYSCEF) ............................................ . Reply Affirmation and Exhibits (NYSCEF ) ...... ,............................. ,; ................... .

Notice of Cross.;Motion, Affirmation, Affidavits and Exhibits (NYSCEF ) ......... . Affirmation and Exhibits in Opposition (NYSCEF) ........... ,................................ . Reply Affirmation .md Exhibits (NYSCEF }., .... ,..... ;.............. ;.,; .......................... .

Upon the foregoing papers and after oral argument, the decision and otdef of the Court

is as follows:

Plaintiff's motion for an order pursuant to CPLR § 222 l [a1granting re~aigunwri.t of this

Court's.prior orcler dated 9/12/2024 dc;mying plairitifrs motion for summaryjudgri:lent against

ACADEMY TRANSPORTATlONINC., and µpon re-argument, vacating the 9rcler arid granting

$08380/.2024 Pagei o/4

FILED: KINGS COUNTY CLERK 04/02/2025 03:52 PM INDEX NO. 508380/2024 NYSCEF DOC. NO. 63 RECEIVED NYSCEF: 04/02/2025

Footnotes

[1] of 4 [* 1] summary judgment against ACADEMY TRANSPORTATION INC. (Academy), is granted (Dinardo v Yeshiva Kehilath Yakov, Inc., 218 AD3d 438, 439 [2d Dept 2023]). Plaintiffpreviously moved this Court for summary judgment on liability against Academy and for a dismissal of both defendants' affirmative defenses of culpable conduct and comparative negligence (NYSCEF 39}. Defendant ARTEMUSHAKOV (Ushakov) served an affinnation in support of plaintiff's motion requesting that this Ccmrt find, as a matter oflaw, Academy was 100% at fault forthe happenlng of this accident and award summaryjudgment dismissing the complaint and all cross claims against Ushakov 's pursuant to CPLR § 3212 [b] 1 {without a cross~motion). The 9/12/2024 order· granted plaintiff's motion dismissing the affinnative defenses since plaintiff was a passenger in Ushakov's vehicle but denied as premature 1) plaintiff's motion on the issues of Academy's negligence arid 2) Ushakov's request to fincl Academy 100% at fault for the happening of this accident (NYSCEF 43). Upon re-argument, the Court adheres to its prior decision dismissingAcademy's second affirmative defense of compan;1.tive negligence and culpable conduct (NYSCEF7J. However, upon reconsideration, the Court exercises its discretion and grants plaintiff's motion for summary judgment . against . . Academy. The Courtalso.grants Ushakov's request for summary judgment pursuant to CPLR § 3212 [b] dismissing the complaint.and all cross cJaimsagainst him. (Dinardo v Yeshiva Kehilath Yakov, Inc., 218 AD3d 4:39). Plaintiff and Ushakov met their ·respective burdens of proof based on plaintiff's admissible evidence th~tAcademy was 100% at fault for the happening of this accident (id.). 1 CPLR3212 [b] Supporting proof; grounds; relief fo either party~ A motion for surimiary judgment shall be supported by affidavit, bya copy of the pleadings and by other available proof, such as depositions and written admissions .. Jfit shall appear thatan:y party other than the moving party is entitled to a summary judgment~ the court may grant such judgment without the necessity. ofa cross-motion. (italics added). . 50838Q/2o24 Pagelof4

[2] of 4 [* 2] In opposition, Academy failed to come forward with an affidavit from its driver or an . affidavit from.art investigator that·despite.their diligent efforts, the driverof theAcademy bus could tiot be located to oppose the motion at this tiine; Merely asserting that the motion is premature, without more, is insufficierttto defeat Summary judgment, (Perez v H&M Limo Inc,, 2020 N; Y. Misc. LEXIS 34021 *4 [Bronx Cty., Barbato, J.]). Based on the video, Academy failed to demonstrate how discovery could lead to relevant evidence exclusively within its driver 1s knowledge and control to postpone a determination of summary judgment (Morissaint v Raemar Corp:, 271 AD2d 586, 587 [2d Dept 2000]}. Accordingly; it is hereby ORDERED that plaintiff's motion for re-argument of the Court order dated 9/12/2024is granted, and itis further ORDERED that upon re-argument, plaintiff's motion for sumrtiary judgmentdismissing ACADEMY TRANSPORTATION, INC. 's Second Affirmative Defense is GRANTED, ancl it is further ORDERED that upon re-argument, defendant USHAKOV's request for summary judgment pursuant to CPLR § 3212 [b] in the underlying motion is GRANTED and this action and all cross claims is dismissed as against USHAKOV, and it isJwther ORDERED that upon re-argument; plaintiff'smotionforsummaryjudgrnentonthe issue of liability against ACADEMY TRANSPORTATION,JNC. is GRANTED, and this action shall proceed to trial on .the issue of damages only. 50838(}/2024 Page3of4

[3] of 4 [* 3] This constitutes the·decision and order of the Court Hon.An ......... Dated: 4/2/2025 For Clerks use only: MG _ _ MD _ __ Motion seq.# _ _ __ 50838U/2024 Page4of4

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