Opinion
Index No. 610603/2019 Mot. Seq.: 001 MD
12-13-2019
SALVATORE MILIOTTO, Plaintiff, v. ALEXIS CIANO, Defendant.
Pltf's Attorney: Gruenberg Kelly Della Deft's Attorney: Gentile & Tambasco
Unpublished Opinion
Orig. Return Date: November 1, 2019
Final Return Date: November 1, 2019
Pltf's Attorney: Gruenberg Kelly Della
Deft's Attorney: Gentile & Tambasco
Present: Hon. Paul J. Baisley, Jr., J.S.C.
PAUL J. BAISLEY, JR. JUDGE
Upon the following papers read on this motion e-filed motion for summary judgment: Notice of Motion/Order to Show Cause and supporting papers by plaintiff filed October 9, 2019; Notice of Cross Motion and supporting papers.....; Answering Affidavits and supporting papers by defendant, filed October 28, 2019; Replying Affidavits and supporting papers by. plaintiff, filed October 29, 2019; Other; (and after hearing counsel in support and opposed to the motion) it is, ORDERED that the motion by plaintiff for summary judgment in his favor on the issue of defendant's negligence and for a determination as to his comparative fault is denied; and it is further
ORDERED that counsel for the parties shall appear for a preliminary conference at 10:00 a.m. on January 8, 2020 at the DCM-J Part of the Supreme Court, 1 Court Street, Riverhead, New York.
This is an action to recover damages for injuries allegedly sustained by plaintiff Salvatore Miliotto as a result of a motor vehicle accident, which allegedly occurred on June 28, 2017, at the intersection of Patchogue-Holbrook Road and Main Street in Holbrook, New York. The accident allegedly occurred when a vehicle operated and owned by defendant Alexis Ciano disregarded its red traffic light and struck plaintiffs vehicle.
Plaintiff now moves for summary judgment in his favor on the issue of defendant's negligence and a determination as to his comparative negligence. Plaintiff contends that defendant violated Vehicle and Traffic Law §§ 1111 and 1141 by entering the intersection when her direction of travel was governed by a red light, and by making a left turn into the path of his vehicle traveling with the right-of-way. He also contends that defendant's conduct was the sole proximate cause of the accident. In support of his motion, plaintiff submits, among other things, a copy of a certified police report, his affidavit, and the affidavit of nonparty Daniel Schaefer. In opposition, defendant argues that triable facts exist as to how the accident occurred, and submits her affidavit.
In his affidavit, plaintiff avers that prior to the collision, his vehicle was traveling southbound on Patchogue-Holbrook Road, and that his direction of travel was governed by a green light. His vehicle allegedly was proceeding through the subject intersection when it was struck by defendant's eastbound vehicle, which was attempting to make a left turn onto northbound Patchouge-Holbrook Road. Plaintiff contends that defendant's direction of travel was governed by a red light at the subject intersection.
Daniel Schaeffer contends that prior to the accident, his southbound vehicle was traveling behind plaintiffs vehicle, and that plaintiffs direction of travel was governed by a green light at the subject intersection. He avers that prior to the accident, defendant proceeded into the subject intersection against a red light controlling her direction of travel, and attempted to make a left turn onto northbound Patchogue-Holbrook Road.
According to defendant's affidavit, her direction of travel was governed by a green light prior to the accident. Defendant allegedly looked to her left and observed that there was no oncoming traffic before attempting to make the left turn. Defendant avers that plaintiffs vehicle proceeded into the intersection despite having a red light controlling his direction of travel.
The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law by tendering evidence in admissible form sufficient to eliminate any material issues of fact from the case (see Alvarez v Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923 [1986]; Winegrad v New York Univ. Med. Or., 64 N.Y.2d 851, 87 N.Y.S.2d 316 [1985]). The movant has the initial burden of proving entitlement to summary judgment (Winegrad v New York Univ. Med. Ctr., supra). Once the movant demonstrates a prima facie entitlement to judgment as a matter of law, the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action (see Vega v Restani Constr. Corp., 18 N.Y.3d 499, 942 N.Y.S.2d 13 [2012]; Alvarez v Prospect Hosp., supra; Zuckerman v City of New York, 49 N.Y.2d 557; 427 N.Y.S.2d 595 [1980]; see also CPLR 3212 [b]). The failure to make such showing requires a denial of the motion, regardless of the sufficiency of the opposing papers (see Winegrad v New York Univ. Med. Ctr., supra). In deciding the motion, the court must view all evidence in the light most favorable to the nonmoving party (see Matter of New York City Asbestos Litig., 33 N.Y.3d 20, 99 N.Y.S.3d 734 [2019]; Vega v Restani Constr. Corp., supra).
A failure to comply with Vehicle and Traffic Law constitutes negligence as a matter of law (Kerolle v Nicholson, 172 A.D.3d 1187, 101 N.Y.S.3d 387 [2d Dept 2019]; Marks v Rieckhoff, 172 A.D.3d 847, 101 N.Y.S.3d 63 [2d Dept 2019]; Kaziu v Human Care Servs. for Families & Children, Inc., 167 A.D.3d 588, 90 N.Y.S.3d 66 [2d Dept 2018]). Vehicle and Traffic Law § 1111 (d) (1) provides, in pertinent part, that traffic facing a steady red traffic signal shall stop before entering the intersection. Vehicle and Traffic Law § 1110 (a) further requires that a driver obey official traffic-control devices applicable to him or her. Accordingly, a driver who enters an intersection without stopping at a red traffic signal in violation of Vehicle and Traffic Law §§ 1110 (a) and 1111 (d) (1) is negligent as a matter of law (see Lanicci v Hansen, 153 A.D.3d 687. 59 N.Y.S.3d 753 [2d Dept 2017]; Bentick v Gatchalian, 147 A.D.3d 890, 48 N.Y.S.3d 171 [2d Dept 2017]; Chuachingco v Christ, 132 A.D.3d 798, 18 N.Y.S.3d 425 [2d Dept 2015]). In addition, pursuant to Vehicle and Traffic Law § 1141, a vehicle intending to turn left within an intersection must yield the right-of-way to any vehicle approaching from the opposite direction which is within the intersection or so close as to constitute an immediate hazard (see Ming-Fai Jon v Wager, 165 A.D.3d 1253, 87 N.Y.S.3d 82 [2d Dept 2018]; Giannone v Urdahl, 165 A.D.3d 1062, 86N.Y.S.3d 562 [2d Dept 2018]; Lebron v Mensah, 161 A.D.3d 972, 76 N.Y.S.3d 219 [2d Dept 2018]).
Although a driver with the right-of-way is entitled to anticipate that other drivers will obey traffic laws requiring them to yield to him or her, a driver with the right-of-way still has a duty to use reasonable care to avoid a collision (see Jeong Sook Lee-Son v Doe, 170 A.D.3d 973, 96 N.Y.S.3d 302 [2d Dept 2019]; Enriquez v Joseph, 169 A.D.3d 1008, 94 N.Y.S.3d 599 [2d Dept 2019]; Shashaty v Gavitt, 158 A.D.3d 830, 71 N.Y.S.3d 560 [2d Dept 2018]). Nonetheless, a driver with the right-of-way, who only has seconds to react to a vehicle which has failed to yield, is not comparatively negligent for failing to avoid the collision (see Jeong Sook Lee-Son v Doe, supra; Enriquez v Joseph, supra; Rohn v Aly, 167 A.D.3d 1054, 91 N.Y.S.3d 256 [2d Dept 2018]). Further, a driver is negligent if he or she fails to see that which, through the proper use of his or her senses, should have been seen (see Shvydkaya v Park Ave. BMW Acura Motor Corp, 172 A.D.3d 1130, 100 N.Y.S.3d 320 [2d Dept 2019]; Aponte v Vani, 155 A.D.3d 929, 64 N.Y.S.3d 123 [2d Dept 2017]; Pivetz v Brusco, 145 A.D.3d 806, 43 N.Y.S.3d 457 [2d Dept 2016]).
Although a plaintiff is no longer required to show freedom from comparative fault to establish his or her prima facie entitlement to judgment as a matter of law on the issue of negligence (Rodriguez v City of New York, 31 N.Y.3d 312, 76 N.Y.S.3d 898 [2018]; see Liu v Lowe, 173 A.D.3d 946, 102 N.Y.S.3d 713 [2d Dept 2019]; Heard v Schade, 172 A.D.3d 1335, 99N.Y.S.3d 666 [2d Dept 2019]), the issue of a plaintiffs comparative negligence may, however, be decided in the context of a summary judgment motion if the plaintiff moves for summary judgment dismissing a defendant's affirmative defense of comparative negligence (see Higashi v M & R Scarsdale Rest., LLC, 176 A.D.3d 788, 2019 NY Slip Op 07240 [2d Dept 2019]; Wray v Galella, 172 A.D.3d 1446, 101 N.Y.S.3d 401 [2d Dept 2019]; Poon v Nisanov, 162 A.D.3d 804, 79 N.Y.S.3d 227 [2d Dept 2018]). Here, the Court deems plaintiffs application for a declaration that he is free from comparative negligence, in effect, as a request for summary judgment dismissing defendant's affirmative defense of comparative negligence. There can be more than one proximate cause of an accident, and the issue of comparative fault is generally a question for the fact finder to determine (see Richardson v Cablevision Sys. Corp., 173 A.D.3d 1083, 104 N.Y.S.3d 655 [2d Dept 2019]; Enriquez v Joseph, supra; Matias v Bella, 165 A.D.3d 642, 84 N.Y.S.3d 551 [2d Dept 2018]).
Plaintiff established his prima facie entitlement to judgment as a matter of law on the issue of defendant's negligence by demonstrating that defendant entered the intersection against a red traffic light (see Duvalsaint v Yupe-Garcia, 169 A.D.3d 864, 92 N.Y.S.3d 714 [2d Dept 2019]; Napolitano v Sanderson, 167 A.D.3d 1024, 88 N.Y.S.3d 354 [2d Dept 2018]; Meredith v Engel, 162 A.D.3d 658, 77 N.Y.S.3d 148 [2d Dept 2018]; Jung Geun Lee v Mason, 139 A.D.3d 807, 33 N.Y.S.3d 76 [2d Dept 2016]: Joaquin v Franco, 116 A.D.3d 1009. 985 N.Y.S.2d 131 [2d Dept 2014]). Plaintiffs submissions demonstrated, prima facie, that defendant entered the intersection against a red light, while plaintiff entered the intersection with a green in his favor at the time of the accident.
In opposition, defendant raised a triable issue of fact as to how the accident occurred, and whether defendant was negligent at all in the happening of the accident (see Duvalsaint v Yupe-Garcia, supra; Kaziu v Human Care Servs. for Families & Children, Inc., 167 A.D.3d 588, 90 N.Y.S.3d 66 [2d Dept 2018]; Pilgrim v Vishwanathan, 151 A.D.3d 769, 56 N.Y.S.3d 268 [2d Dept 2017]). Defendant submits her affidavit, which contradicts plaintiffs version of how the accident occurred (see Duvalsaint v Yupe-Garcia, supra; Napolitano v Sanderson, supra; Jung Geun Lee v Mason, supra; Chuachingco v Christ, 132 A.D.3d 798, 18 N.Y.S.3d 425 [2d Dept 2015]). Defendant avers that plaintiffs vehicle entered the intersection against a red light, and that her vehicle proceeded through the intersection with a green light in her favor at the time of the accident (see Duvalsaint v Yupe-Garcia, supra; Napolitano v Sanderson, supra; Jung Geun Lee v Mason, supra; Chuachingco v Christ, supra). While plaintiff may use defendant's admission in the certified police report that her vehicle proceeded into the intersection against a red light, the relative weight to be accorded to the admission in light of defendant's subsequent explanation included in her affidavit is to be determined by the fact finder (see Wein v Robinson, 92 A.D.3d 578, 939 N.Y.S.2d 364 [1st Dept 2012]; Fravezzi v Koritz, 295 A.D.2d 290, 744 N.Y.S.2d 669 [1st Dept 2012]; Imamkhodjaev v Kartvelishvili, 44 A.D.3d 619, 843 N.Y.S.2d 160 [2d Dept 2007]). Notably, defendant denies making the statement reflected in the accident report (see Wein v Robinson, supra; Imamkhodjaev v Kartvelishvili, supra).
According, the motion by plaintiff for summary judgment is denied.