Paulino v. Benson

Paulino v Benson 2020 NY Slip Op 35559(U) June 26, 2020 Supreme Court, Bronx County Docket Number: Index No. 28118/2019E Judge: John R. Higgitt 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: BRONX COUNTY CLERK 07/01/2020 02:55 PM INDEX NO. 28118/2019E NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 07/01/2020

SUPREME COURT OF THE STATE OF EW YORK CO TY OF BRONX: I.A. . PART 14 ----------------------------------------------------------------------X NILSA PAULfNO D ClSION A D ORDER Plaintiff, - against - Index o. 281 18/20 I 9E JOHN ALLAN B E SO , "JOHN DOE'. aid name being fictitious and presently unknown, and --xyz CORPORATION '·, said name being fictitious and presently unknown Defendants. ----------------------------------------------------------------------X John R. Higgitt J.

Upon plaintiff's January 8, 2020 notice of motion and the affirmation and exhibits

submitted in support thereof; defendant Benson's March 2 2020 affirmation in oppo ition and

the exhibits ubmitted therewith ; plaintiff March 13, 2020 affirmation in repl y and due

deliberati on· plaintiff' motion for partial ummary judgment on th is ue of defendant Benson '

liability for cau ing the subject motor vehicle accident and for dismissal of de fe ndant Ben on ·s

affirmative defen e alleging plaintiff failure to wear a eatb It i denied .

Thi i an gligence action to recover damages for personal injuries pl a intiff alleged!

sustained in a motor vehicle accident that took place on January 17. 2019. In upport of her

motion plaintiff submit the pleadings and her affidavit. Plaintiff averred that at the time of the

accident she was in the process of merging onto the Cross Bronx Expressway when she had to

come to a stop because traffic in front of her was stopped. Plaintiff averred that after her ehicle

was stopped for a few seconds, defendant Benson· s vehicle suddenly struck the rear of her

vehicle.

In opposition, defendant Benson averred that he was traveling in the rightmost lane of

moving traffic when suddenly plaintiffs vehicle attempted to merge into his lane, causing the

FILED: BRONX COUNTY CLERK 07/01/2020 02:55 PM INDEX NO. 28118/2019E NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 07/01/2020

FILED: BRONX COUNTY CLERK 07/01/2020 02:55 PM INDEX NO. 28118/2019E NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 07/01/2020

Footnotes

[2] of 4 [* 1] accident. 1 Defendant Benson also submitted photographs of the vehicle. which show the damage to the subject vehicles. The proponent of a summar judgment motion must make a prima facie howing of entitlement to judgment as a matter of la . tendering uffici nt e idence to eliminate any material issues of fact from the case(. ·ee Alvarez v Prospect Ho.sp .. 68 Y2d 320 [1986]- Zuckerman v City of ew York, 49 Y2d 557 [1980]). Failure to make such a ho, ing requires denjal of the motion regardles of the sufficiency of the opposing papers (see Winegrad v Nevv York niv. Med. Ctr., 64 NY2d 851 [1985]). Summar judgment hould bed nied where there i an y doubt as to the existence of a triab le issue (see Zuckerman , supra ). When there i conflicting evidence as to how an accident occurred, summary judgment is inappropriate ( ·ee Elamin v Robert Express, inc .. 290 AD2d 291 [ I st Dept 2002]). In deciding a ummary judgment motion. the court should not weigh the parties' credibility (see Krupp v Aetna l(fe & Casualty Co. , 103 AD2d 252, 262 [2d Dept 2002]). The conflicting version as to how the accident occurred demonstrate the existence of issues of fact and credibility making summary judgment in favor of plaintiff inappropriate (see Per it ore v Anna & Diane Cab Corp. , 12 7 AD3d 669 [1st Dept 2014 ]). Notably. defendant Benson' s account of the events is not incredible as a matter of law (cf Moorhouse v Standard. . Y. 124 AD3d 1 [1st Dept 2014]). Moreover, defendant Benson·s affida it is not materiall y inconsistent with any police-report admissions. o statement in the report is clearly attributable to defendant Ben on. and the tatement plaintiff belie es was made by defendant Benson is not inconsistent with his affidavit. 1 Although defendant Benson ' s affidavit does not comply with CPL R 2309(c), the court can and does allow defendant to correct the tech ni ca l defect (see Bank of . Y. v in gh. 139 03d 486 [ I st Dept 2016]). 2

[3] of 4 [* 2] As to defendant Benson ' s fourth affirmative defense alleging plaintiffs failure to wear a seatbelt, plaintiff averred that, at the time of the accident, she was wearing a seat belt. However, whether plaintiff was wearing a seatbelt at the time of the accident is a matter that is exclusively within her knowledge and defendants must be allowed to explore it in discovery (see CPLR 3212[f]). Accordingly, it is ORDERED that plaintiffs motion is denied ; and it is further ORDERED, that defendant Benson is to file and serve an affidavit that complies with CPLR 2309(c) within 60 days of the date of this decision and order. The parties are reminded that a compliance conference has been scheduled before the undersigned on November 6, 2020 at 9:30 a.m. in courtroom 407. This constitutes the decision and order of the court. Dated: June 26, 2020 3

[4] of 4 [* 3]