CHAMBERS v. NAVARRO LLC (2023)

Recitation in accordance with CPLR 2219(a) of the papers considered on the motion of the defendant Rashad Bowen (hereinafter Bowen), filed on March 22, 2022, under motion sequence number one, for an order pursuant to CPLR 3212 granting summary judgment on the issue of liability in Bowen's favor and dismissing the complaint Tchakadi Chambers (hereinafter the plaintiff) and dismissing the cross claims asserted by Carlos Navarro and Old Trucking LLC against Bowen. The motion is opposed.

-Notice of Motion

-Affirmation in Support

-Exhibits A-D

-Affirmation in Opposition by Plaintiff

-Affidavit in Opposition by Plaintiff

-Exhibits A-D

-Affirmation in Opposition by Co-Defendants

-Exhibits A-B

-Affirmation in Reply

BACKGROUND

On August 5, 2021, plaintiff commenced the instant action for damages for personal injuries sustained in a motor vehicle accident by filing a summons and verified complaint with the Kings County Clerk's office (KCCO). By answer with cross claim filed on October 18, 2021, defendant Bowen joined issue. By joint answer with cross claim dated May 17, 2022, co-defendants Carlos Navarro and Old Trucking LLC joined issue.

The verified complaint alleges the following salient facts. On or about April 2, 2021, the plaintiff was driving a 2016 Toyota bearing New York State license plate number T720049C at or near the intersection of Flatbush Avenue Extension and Tillary Street, in Brooklyn, New York. On that date, time and place, Bowen was driving a 2013 BMW automobile, bearing a New York State license plate. On that same date, time and place, Navarro was driving a 2004 Kenworth Flat Bed automobile, owned by Old Trucking LLC, and bearing a New Jersey license plate. The Bowen and Navarro vehicles came into contact with each other due to the driver's negligent operation of their respective vehicles. That collision caused the vehicle operated by Navarro to come into contact with the vehicle operated by the plaintiff (hereinafter the subject accident). The subject accident caused the plaintiff to sustain serious physical injury.

LAW AND APPLICATION

It is well established that summary judgment may be granted only when it is clear that no triable issue of fact exists (Alvarez v Prospect Hospital, 68 NY2d 320 [1986]). The burden is upon the moving party to make a prima facie showing that he or she is entitled to summary judgment as a matter of law by presenting evidence in admissible form demonstrating the absence of material facts (Guiffirda v Citibank, 100 NY2d 72 [2003]).

A failure to make that showing requires the denial of the summary judgment motion, regardless of the adequacy of the opposing papers (Ayotte v Gervasio, 81 NY2d 1062 [1993]). If a prima facie showing has been made, the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of material issues of fact (Alvarez, 68 NY2d at 324).

Pursuant to CPLR 3212(b) a court will grant a motion for summary judgment upon a determination that the movant's papers justify holding, as a matter of law, that there is no defense to the cause of action or that the cause of action or defense has no merit. Further, all of the evidence must be viewed in the light most favorable to the opponent of the motion (People ex rel. Spitzer v Grasso, 50 AD3d 535, 544 [1st Dept 2008], citing Marine Midland Bank v Dino & Artie's Automatic Transmission Co., 168 AD2d 610 [1990]).

Defendants moving for summary judgment in a personal injury action must demonstrate, prima facie, that they did not proximately cause the plaintiff's injuries (Fargione v Chance, 154 AD3d 713, 714 [2d Dept 2017]; see also Fergile v Payne, 202 AD3d 928, 930 [2d Dept 2022]). Since there can be more than one proximate cause of an accident, a defendant seeking summary judgment must establish freedom from comparative fault as a matter of law (Wilson v Mazewski, 175 AD3d 1352, 1353 [2d Dept 2019]).

Bowen has made the instant motion for summary judgment before any depositions have been conducted. Both the plaintiff and Bowen's co-defendants have opposed the motion as premature pursuant to CPLR 3212(f).

A party should be afforded a reasonable opportunity to conduct discovery prior to the determination of a motion for summary judgment (Village of Dobbs Ferry v Landing on the Water at Dobbs Ferry Homeowners Assn., Inc., 198 AD3d 838, 839 [2d Dept 2021; see Brea v Salvatore, 130 AD3d 956, 956 [2d Dept 2015]). A party opposing summary judgment is entitled to obtain further discovery when it appears that facts supporting the opposing party's position may exist but cannot then be stated (CPLR 3212[f]; Village of Dobbs Ferry, 198 AD3d at 840).

The plaintiff, Navarro and Bowen should each have an opportunity to depose the other drivers involved in the subject accident. Under the circumstances here, where Bowen moved for summary judgment on the issue of liability prior to discovery and the record reflects that discovery might lead to relevant evidence pertaining to the circumstances of the accident, the prudent thing to do is to deny the motion for summary judgment on the issue of liability without prejudice to renew upon the completion of discovery (see CPLR 3212[f]; Guo Ping Gu v Malaxos, 192 AD3d 1087, 1087—1088 [2d Dept 2021]).

CONCLUSION

The motion by defendant Rashad Bowen for an order pursuant to CPLR 3212 granting summary judgment on the issue of liability in Bowen's favor and dismissing the complaint and all cross claims asserted against Bowen is denied without prejudice to renew upon the completion of discovery.

The foregoing constitutes the decision and order of this Court.

Francois A. Rivera, J.