| Walinchus v Lubeck |
| 2015 NY Slip Op 00359 [124 AD3d 631] |
| January 14, 2015 |
| Appellate Division, Second Department |
[*1]
| Kendra Walinchus, as Administratrix of the Estate ofSeth Walinchus, Deceased, Appellant, v Janet Lubeck, as Administratrix C.T.A.of the Estate of George R. Lubeck, Deceased, Respondent, et al.,Defendant. |
Ernest Holzberg, New York, N.Y. (Richard Holzberg and David Holzberg ofcounsel), for appellant.
Picciano & Scahill, P.C., Westbury, N.Y. (Francis J. Scahill and Andrea E.Ferrucci of counsel), for respondent.
In an action, inter alia, to recover damages for personal injuries, etc., the plaintiffappeals, as limited by her brief, from so much of an order of the Supreme Court, NassauCounty (Janowitz, J.), dated October 18, 2013, as granted the motion of the defendantJanet Lubeck, as Administratrix C.T.A. of the Estate of George R. Lubeck, for summaryjudgment dismissing the complaint insofar as asserted against her.
Ordered that the order is reversed insofar as appealed from, on the law, with costs,and the motion of the defendant Janet Lubeck, as Administratrix C.T.A. of the Estate ofGeorge R. Lubeck, for summary judgment dismissing the complaint insofar as assertedagainst her is denied.
This case arises from a rear-end collision involving three vehicles. The lead vehicle,driven by the defendant Timothy Cleven, had stopped for a school bus when the collisionoccurred. Although the exact circumstances of the accident are unclear from the record,there is no real dispute that either one or two vehicles struck Cleven's vehicle in the rear.One of those vehicles was a motorcycle driven by the plaintiff's decedent, SethWalinchus (hereinafter Walinchus). The other vehicle was driven by the defendant JanetLubeck's decedent, George R. Lubeck (hereinafter Lubeck). The plaintiff commencedthis action alleging, inter alia, that both Cleven and Lubeck were negligent in theoperation of their respective vehicles. Both Walinchus and Lubeck died before thisaction was commenced.
After the defendants filed their respective answers, they separately moved forsummary judgment dismissing the complaint insofar as asserted against each of them.The Supreme Court granted both motions and dismissed the complaint in its entirety. Theplaintiff appeals from so much of the order as granted Janet Lubeck's motion forsummary judgment dismissing the complaint insofar as asserted against her. We reversethe order insofar as appealed from.
In support of her motion, Janet Lubeck submitted evidence including the depositiontestimony of Timothy Cleven, and argued that Cleven was the only person with personalknowledge [*2]of how the subject accident occurred.Cleven testified that, prior to the accident, he saw Lubeck's vehicle approaching hisvehicle from the rear, but he did not see the motorcycle operated by Walinchus. Clevenfurther testified that when he exited his vehicle after the collision, he saw that Lubeck'svehicle had rear-ended his vehicle, Walinchus was standing on the sidewalk, andWalinchus's motorcycle was underneath either his vehicle or Lubeck's vehicle. Based onhis testimony, Janet Lubeck argued that the plaintiff "will be unable to prove a primafacie case of liability against the defendants," and that the plaintiff "cannot prove that"any action by Lubeck was the proximate cause of Walinchus's injuries.
Contrary to the Supreme Court's determination, Janet Lubeck failed to establish herprima facie entitlement to summary judgment dismissing the complaint insofar asasserted against her. "A movant cannot satisfy its initial burden merely by pointing togaps in the plaintiff's case" (Campbell v New York City Tr. Auth., 109 AD3d 455, 456[2013]; see Velasquez vGomez, 44 AD3d 649, 650 [2007]). Here, Janet Lubeck merely pointed to gapsin the plaintiff's proof. Her submissions, including Cleven's deposition testimony, failedto affirmatively demonstrate that Lubeck was free from negligence or that any negligentconduct on his part was not a proximate cause of Walinchus's injuries. Since JanetLubeck failed to demonstrate her prima facie entitlement to judgment as a matter of law,we need not consider the sufficiency of the plaintiff's opposition papers (seeWinegrad v New York Univ. Med. Ctr., 64 NY2d 851, 852 [1985]).
Accordingly, the Supreme Court should have denied Janet Lubeck's motion forsummary judgment dismissing the complaint insofar as asserted against her. Dillon, J.P.,Hinds-Radix, Maltese and Barros, JJ., concur.