Opinion
2018-259933
08-06-2020
Rosemay ROSARIO, Individually and as Parent and Natural Guardian of C.J., Plaintiffs, v. Alexander M. BROWN and Stephen H. Brown, Defendants.
Conway & Kirby, PLLC, Attorneys for Plaintiffs,Dana M. Wolin, Esq., of counsel, 413 Kenwood Avenue, Delmar, New York 12054 Boeggeman, Corder, Ondrovic & Hurley, P.C., Attorneys for Defendants, Crystal Navarra, Esq., of counsel, 39 North Pearl Street, Suite 501, Albany, New York 12207
Conway & Kirby, PLLC, Attorneys for Plaintiffs,Dana M. Wolin, Esq., of counsel, 413 Kenwood Avenue, Delmar, New York 12054
Boeggeman, Corder, Ondrovic & Hurley, P.C., Attorneys for Defendants, Crystal Navarra, Esq., of counsel, 39 North Pearl Street, Suite 501, Albany, New York 12207
Henry F. Zwack, J.
DECISION
Defendants Alexander M. Brown and Stephen H. Brown have moved for summary judgment dismissing the complaint in this action for personal injuries as a result of a motor vehicle action. The then 6 year old infant plaintiff, C.J., was struck by defendant Steven Brown's vehicle, which was being driven by his son Alexander Brown, on 11th and Hutton Street on March 24, 2016. According to the complaint, Alexander Brown ("Alexander") was negligent in the operation of the vehicle and, among other things, failed to look out for, slow his vehicle and or/and sound his horn as he approached a group of children waiting at a bus stop. In support of the motion for summary judgment, defendants asserts that Alexander was reasonably operating the vehicle when the infant plaintiff just "darted out" from behind a parked car and ran into him and that Alexander had no time to react to avoid the accident.
The complaint also alleges a violation of Vehicle and Traffic Law § 1146, however, the plaintiff was not ticketed.
In support of the motion for summary judgment, defendants have produced the deposition testimony of the infant's mother, Rosemay Rosario, and the deposition testimony of Alexander Brown. Ms. Rosario testified that on the morning of the accident, she was parked on the left side of Hutton at the intersection of 11th Avenue, and across the street from her car was her son C.J.'s bus stop. Her infant daughter was in the car, as Ms. Rosario dropped her off at daycare after C.J. was picked up by the bus. A friend of C.J.'s tapped on the window, and Ms. Rosario gave C.J. permission to get out of the car and join his friend on the sidewalk. Ms. Rosario further testified that her daughter began to fuss and she turned around to give her a pacifier, and the next thing she knew was the sound of a thud of impact when C.J. was struck by on oncoming car. Ms. Rosario did not see the accident and she did not speak with the police following the accident.
Turning to the deposition testimony of Alexander Brown, he testified that he was on his way home from his 6:00 pm to 6:30 am shift at Global Foundaries in East Greenbush. He has two routes he took to his then apartment on Hoosick, either Hoosick Street or Hutton, depending on the traffic. On the morning of the accident, he was going up Hutton Street, which is one way until 12th or 13th Street, at approximately 20 miles an hour. After passing through the intersection at 10th Street he could see children near 11th Avenue, so he slowed his car to 10-15 miles an hour. He further stated that he saw cars lined up on both sides of this one-way street, so he was driving in the middle of the road. He did not have a stop sign on Hutton Street, but believed there were stop signs controlling the streets that crossed Hutton. At the intersection of Hutton and 11th a child (plaintiff infant) ran out from behind a parked car into the street directly in front of his car, and was struck, near the wheel well of the driver's side of his car. Alexander testified that he saw the kids around the intersection as he was driving, and it did occur to him that he might have to stop, so he slowed his car down significantly. He saw the plaintiff infant, but did not keep him in his sight, and saw him next when the infant hit his car. He stayed at the accident scene and gave his statement to the police.
Summary judgment is a drastic remedy which should not be granted unless it is clear that there are no triable issues of fact ( Andre v Pomeroy, 35 NY2d 361, 364[1974], and the court's focus should be on issue identification rather than issue determination ( Sternbach v Cornell University , 162 AD2d 923 [3d Dept 1990] ). [T]he 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] ; Ayotte v Gervasio, 81 NY2d 1062 [1993] ; Zuckerman v City of New York , 49 NY2d 557 [1980]. Only once the movant has satisfied its entitlement to judgment as a matter of law — by affirmatively demonstrating the merits of its claim ( Velasquez v Gomez, 44 AD3d 649, 650-651 [3d Dept 2007] ) — does the burden then shift to the opponent of the motion to establish, by admissible proof, the existence of a triable issue of fact (Lockwood v Layton, 79 AD2d 1342, 1342-1343 [3d Dept 2010]).The Court must view the evidence in the light most favorable to the non-moving party, giving that party the benefit of every reasonable doubt, and determine whether there is any triable issue of fact outstanding ( Matter of Suffolk DSS v. James M. , 83 NY2d 178 ; Boyce v. Vasquez , 249 AD2d 724 [3d Dept1998] ). Simply stated, the Court must deny summary judgment, "without making any credibility determinations... if there is any doubt as to whether a material factual issue exists or if such an issue is even arguable" ( Black v Kohl's Dept. Stores, Inc., 80 AD3d 958, 959 [3d Dept 2011] ).
Defendants have the initial burden of establishing as a matter of law that Alexander was not negligent or that any negligence on his part was not the cause of the accident ( Darnley v Randazzo , 159 AD3d 1578 [4th Dept 2018] ). "A prima facie entitlement to summary judgment is established by providing evidence that a plaintiff suddenly ‘darted out...directly in the path of the defendant's vehicle, leaving the defendant unable to avoid contact’ " ( Sheppeard v Murci , 306 AD2d 268 [2d Dept 2003] ).
In determining whether the actions of a driver are reasonable in light of an emergency situation, for the purposes of applying the emergency doctrine, both the driver's awareness of the situation and his actions prior to the occurrence of the emergency must be considered ( Gilkerson v Buck , 174 AD3d 1282 [4 Dept, 2019] ). The emergency doctrine does not automatically absolve a person from liability for his or her conduct ( Colangelo v Marriott , 120 AD3d 985 [4th Dept 2014] ).
A driver in an area where children are playing need not exercise "extreme care or caution" although he must exercise the care that a reasonably prudent person would exercise ( DeJesus v Alba , 63 AD3d 460 [1st Dept 2009].
On this record, defendants have established, prima facie, entitlement to summary judgment. However viewed, the deposition testimony of Alexander Brown establishes that he was operating his vehicle in a manner that was reasonable under the circumstances, including that he was proceeding up the center of Hutton Street, a one way street, saw children on the sidewalks adjoining Hutton Street, that he reduced his speed from 20 to 10-15 miles per hour, and that the plaintiff infant, in sum, suddenly darted out from between parked cars, and that he had no opportunity avoid the accident. His testimony is also consistent with that of the plaintiff Rosemay Rosario, and raises no question of fact as to whether he was operating his vehicle — under the circumstances he describes — in a manner that was reasonable.
In opposition, plaintiff's have offered no evidence raising a question of fact as to how the accident occurred or that Alexander Brown operated his vehicle in a negligent manner. Simply stated, beyond speculation, plaintiffs offer nothing to support their argument that, because Alexander Brown saw children on Hutton Street, or a waiting school bus on 10th Street, he was reasonably required to anticipate that the plaintiff infant, seeing his bus coming, would start crossing from the left side of Hutton to other — and thus reduce his speed below 10-15 miles per hour to give himself more time to react, or stop and sound his horn (compare Rawls v Simon , 157 AD3d 418 [1st Dept 2018] ). Unlike the circumstances described in St. Andrew v O'Brien (45 AD3d 1024 [3d Dept 2007] ), the uncontroverted proof establishes that the defendant slowed down his car, and, in sum, the "only way there could have no impact if defendant had stopped (his) car entirely" ( DeJesus v Alba, 63 AD3d 460, 464 [1st Dept 2009] ).
All said, the particular circumstances of the accident — described consistently in the deposition testimony of both defendant Alexander Brown and plaintiff Rosemay Rosario — fall squarely within the ordinary dart out case and that the plaintiff infant "suddenly darted out...directly in the path of the defendant's vehicle, leaving the defendant unable to avoid contact" ( Cresser v CDTS, 1, 127 AD3d 1464, 1465 [3d Dept 2015] ).
Accordingly, it is
ORDERED , that the defendants' motion for summary judgment is granted in its entirety, and the plaintiff's complaint is dismissed in its entirety.
This constitutes the Decision and Order of the Court. This original Decision and Order is returned to the attorneys for the defendants. All other papers are delivered to the Supreme Court Clerk for transmission to the County Clerk. The signing of this Decision and Order shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the applicable provisions of this rule with regard to filing, entry and Notice of Entry.
Papers Considered:
1. Notice of Motion for Summary Judgment dated June 4, 2020; Affirmation of Crystal Navarra, Esq., dated June 4, 2020 with Exhibits "A" through "C";
2. Affirmation in Opposition of Dana Wolin, Esq., dated June 26, 2020, with Exhibits "A" and "B"; Memorandum of Law;
3. Reply affirmation of Paul Hurley, Esq., dated July 8, 2020.