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Struck In The Rear While At A Red Light

The plaintiff, originally from Dutchess County, was stopped in her motor vehicle at a red light when she was struck in the rear by the defendants’ vehicle exiting a mall. The court granted summary judgment since the defendants failed to offer a non-negligent explanation for the accident or prove they will discover evidence which raises a triable issue.

PATRICIA SHOST V. DONALD J. DUNCAN AND GENERAL MOTORS LLC.

Supreme Court, County of Dutchess, Index no: 52275/2016

Plaintiff’s affidavit establishes· that she was driving her vehicle westbound on Grasslands Road and came to a stop at a red light at the intersection with Bradhurst Avenue. She further avers that she was stopped for approximately five (5) seconds and then, without any warning, her vehicle was struck twice from behind by the vehicle driven by Defendant Duncan. The impacts to her vehicle caused her vehicle to be pushed forward, almost striking the vehicle in front of her. The police report confirms that Plaintiff’s vehicle was rear-ended by Defendant Duncan.

In opposition to the motion, Defendants submitted an attorney affirmation and exhibits relating to outstanding discovery. Noticeably absent from the submission is an affidavit from Defendant Duncan, a person with personal knowledge of the facts, either denying the plaintiff’s allegations or offering a nonnegligent explanation for the collision. Kimyagarov v. Nixon Taxi Corp., AD3d 736, 737 [2nd Dept 2007].

Defendants’ entire opposition revolves around Plaintiff’s alleged failure to timely provide medical authorizations and appear for a deposition. However, Defendants completely fail to establish how that discovery might lead to relevant evidence on the issue of liability or the facts essential to justify opposition to the motion are exclusively within the knowledge and control of the Plaintiff. Deleg, supra. “[I]n opposing plaintiff’s motion, [Defendants] failed to tender an affidavit or affidavits averring the existence, in admissible form, of proof which would present a triable issue of fact or, if hearsay, an acceptable excuse for the failure to present firsthand knowledge” Chem. Bank v. PIC Motors Corp., 58 NY2d 1023, 1026 [1983]; Deleg v. Vinci, supra at 1146. An attorney affirmation claiming, without specifying, that discovery would permit them to “discover relevant facts that might support their opposition” is not enough. See Koster Affirmation at ¶ 21.

As Defendants have not denied the Plaintiff’s allegations or offered a nonnegligent explanation for the collision (see Kimyagarov, supra), nor shown that they are likely to discover evidence which raises a triable issue of fact, Plaintiff is entitled to summary judgment on the issue of liability.

Select A Practice Area

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Medical Malpractice

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Defense counsel offers 11 cents to settle before trial and the jury renders a verdict of $4.5 million dollars for a medical malpractice victim and his wife. The action was commenced in New York Supreme Court for a patient who suffered massive internal bleeding during a lower back surgery when the surgeon negligently cut an artery and failed to promptly treat the condition, causing a loss of oxygen and injury to the brain. The anesthesiologist failed to properly monitor the patient’s vitals during the surgery and alert the surgeon of the drop in blood pressure.

Assault

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$1.25 million settlement in New York Supreme Court against building owner for negligent security that caused two women to be assaulted while leaving work. A masked man entered their elevator from a floor that was supposed to be closed off for construction. The assailant used a metal pipe to attack the two women. The two women split the settlement monies.

Construction Accident

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$1.5 Million settlement in New York Supreme Court for a construction worker who was struck by a piece of concrete that fell on his head and back. Workers above were chipping concrete despite knowing that people were working directly below them. The plaintiff required surgery on his neck but made a good recovery.

Medical Malpractice

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$3.9 million settlement in Supreme Court Kings County for a Brooklyn man who suffered a stroke shortly following an eye surgery. The patient was given medical clearance for local anesthesia but instead was placed under general anesthesia for 7 hours. The patient’s blood pressure was not well controlled resulting in a 30 minute hypertensive emergency near the end of the operation. The patient died after 7 years of living in different nursing homes.

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