BENAYOUN v. ALKADA (2023)

The following numbered papers were read on this motion: NYSCEF Document Numbers 28-38, 40-42.

Upon the foregoing papers, and having heard oral argument and due deliberation having been had ¹ ,

It is hereby ORDERED as follows:

Plaintiff's motion for summary judgment is DENIED. This case arises from an event that transpired on or about February 15, 2022, on Avenue T, at or near 2001 Homecrest Avenue, in the borough of Brooklyn (Kings County), New York. At the time, Plaintiff was operating a motor vehicle while traveling eastbound on Avenue T. Defendant Alkada was operating a 2020 Mitsubishi Outlander Sport Utility Vehicle (SUV), owned by Defendant Gadee, and was reversing out of 2001 Homecrest Avenue's driveway onto Avenue T. Avenue T is a two-lane road with one lane designated for each direction of travel.

Plaintiff filed the present motion seeking: (1) summary judgment on the issue of liability for the Plaintiff; and (2) dismissing all affirmative defenses asserted by the Defendants. It is Plaintiff's contention that Defendant Alkada violated VTL §§ 1211, 1162, 1143 and 1173, by failing to observe Plaintiff and reversing into Plaintiff's vehicle. Plaintiff argues that Defendant Alkada's alleged violation of these statutes is sufficient to establish a prima facie case for liability and further establishes a complete lack of culpability on the Plaintiff's part. In support of Plaintiff's contentions, Plaintiff filed an affidavit. Plaintiff's affidavit notes that Plaintiff's vehicle was struck by Defendant Alkada while Defendant Alkada was reversing out of a driveway and that Plaintiff could not have avoided the subject collision.

Defendants filed opposition to the present motion. In said opposition, Defendants argue first that issues of material facts exist and that Defendants’ first affirmative defense that any injuries sustained by the Plaintiff were caused or exacerbated by the Plaintiff's own conduct. In support of the first argument regarding material issues of fact, Defendants filed both an affidavit and a deposition transcript by Defendant Alkada. Defendant Alkada's affidavit notes that Defendant Alkada had reversed onto Avenue T, had completed reversing, had been standing in the public roadway for “at least 4 seconds” before Plaintiff collided with Defendant Alkada, and that Defendant Alkada could not have avoided the subject collision. Defendant Alkada's deposition transcript corroborates this information. Defendants also note the existence of a Ring doorbell camera which captured the incident; however, Defendants failed to upload a viewable copy of said video. Consequently, any purported video surveillance of the accident has not been considered by this Court.

“As we have stated frequently, 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 demonstrate the absence of any material issues of fact” (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; see also Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Andre v Pomeroy, 35 NY2d 361, 364 [1974])). The party moving for summary judgment must present a prima facie of entitlement to judgment as a matter of law, tendering sufficient evidence in admissible form demonstrating the absence of material issues of fact, and the failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see CPLR 3212 [b]; Smalls v AJI Industries, Inc., 10 NY3d 733 [2008]; Alvarez, 68 NY2d at 324). Once prima facie showing has been made, however, the burden shifts to the nonmoving party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact that require a trial for resolution or tender an acceptable excuse for the failure to do so (see Zuckerman v City of New York, 49 NY2d 557 [1980]). If there is any doubt as to the existence of a triable fact, the motion for summary judgment must be denied (see Rotuba Extruders, Inc. v Ceppos, 46 NY2d 223, 231 [1978]). Furthermore, “[t]he function of the court on a motion for summary judgment is not to resolve issues of fact or determine matters of credibility, but merely to determine whether such issues exist” (Kolivas v Kirchoff, 14 AD3d 493, 493 [2d Dept 2005]). Motions for summary judgment “should not be granted where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility” (Scott v Long Is. Power Auth., 294 AD2d 348, 348 [2d Dept 2002])

Here, despite Plaintiff's contentions otherwise, there continue to be issues of fact and/or credibility. As noted previously, Plaintiff contends that Defendant Alkada collided with Plaintiff's car while Defendant Alkada was in the process of reversing out of Defendant Alkada's property. On the other hand, Defendants contend that Defendant Alkada had completed reversing and was present in the public roadway when Plaintiff struck Defendants’ vehicle. Each party has put forth affidavits and/or transcripts of sworn depositions memorializing the respective position of party. Clearly then there are issues of fact as to whether Defendant Alkada failed to safely reverse out of Defendants’ driveway, or if Plaintiff failed to observe Defendants’ vehicle in the roadway after Defendant Alkada had completed reversing safely. Since each affidavit and/or transcript, entirely opposes the facts alleged by the other, there is also an issue of credibility. Thus, the motion must be DENIED in its entirety.

FOOTNOTES

1.   Counsel are reminded of the provisions requiring that an opinion or decision be included in the record on appeal should one be taken (see CPLR 5526; 22 NYCRR 1250.7 [b] [4], [d] [1] [iii]). Transcripts may be procured from the court reporter (see Matter of Lewandowski v Office of Ct. Admin., 173 Misc 2d 335 [Sup Ct, Albany County 1997]).

Aaron D. Maslow, J.