Opinion
Index No. 613658/2019 Mot. Seq. No. 001 MG
12-06-2022
MAGDALENA SLIWA, Plaintiff, v. MADELINE KOLIN, Defendant.
RAPPAPORT, GLASS, LEVINE & ZULLO, LLP Attorney for Plaintiff MIRANDA SLONE SKLAR1N VERVENIOTIS, LLP Attorney for Defendant
Unpublished Opinion
MOTION DATE ADJ. DATE 9/23/21
RAPPAPORT, GLASS, LEVINE & ZULLO, LLP Attorney for Plaintiff
MIRANDA SLONE SKLAR1N VERVENIOTIS, LLP Attorney for Defendant
PRESENT: Hon. JOSEPH FARNETI Acting Justice of the Supreme Court
HON. JOSEPH FARNETI, ACTING JUSTICE
Upon the following e-filed papers read on this motion for partial summary judgment: Notice of Motion and supporting papers by plaintiff, dated August 23. 2021; Answering Affidavits and supporting papers by defendant. dated September 15, 2021; Replying Affidavits and supporting papers by plaintiff, dated September 21, 2021; it is
ORDERED that the motion by plaintiff Magdalena Sliwa for, inter alia, partial summary judgment on the issue of defendant's liability is granted.
This action was commenced by plaintiff Magdalena Sliwa to recover damages for injuries she allegedly sustained on August 28, 2018, when the motor vehicle she was operating on Little East Neck Road in West Bablyon, New York, was struck by a vehicle owned and operated by defendant Madeline Kolin.
Plaintiff now moves for partial summary judgment in her favor, arguing that defendant's actions are the sole proximate cause of her alleged injuries. Plaintiff also seeks an Order striking defendant's affirmative defenses alleging culpable conduct and failure to use a seatbelt. In support of her motion, plaintiff submits, among other things, transcripts of the parties' deposition testimony, a certified copy of an MV-104A Police Accident Report, and 23 photographs.
Plaintiff testified that at approximately 10: 15 a.m. on the date in question she was operating a motor vehicle northbound in the left lane on Little East Neck Road, wearing sunglasses and her seatbelt. She indicated that the weather was sunny and clear. Plaintiff described Little East Neck Road as having four lanes of travel, with two lanes in each direction separated by a double-yellow line, and no shoulder on either side. She testified that she believes the speed limit on Little East Neck Road is 35 miles per hour. Plaintiff stated that she brought her vehicle to a halt for a red traffic light at Little East Neck Road's intersection with Park Avenue, then proceeded forward after the light turned green. She indicated that the traffic light controlling the next intersection, where Little East Neck Road and Great East Neck Road meet, was red as she drove her vehicle toward it at no more than 15 miles per hour, but that it turned green as she approached. Plaintiff testified that when her vehicle was approximately a car length behind the last vehicle in the line of four that were stopped for the previously-red traffic light, she felt a heavy impact to the front corner of the passenger side of her vehicle. She explained that a large black pickup truck was traveling in the right lane of Little East Neck Road, next to her, when the front driver's side of a large Ford vehicle emerged from the right, in front of the pickup truck. Plaintiff indicated that she believes the offending vehicle was exiting a shopping plaza on the right side of the road, apparently intending to cross the northbound [westbound] lanes of Little East Neck Road and make a left turn into the southbound [eastbound] lanes. She averred that while she initially believed the black pickup truck to her right was slowing for the upcoming red traffic light, she now realizes it was slowing to allow the Ford to enter the roadway. She testified that the Ford collided with her "a few times," forcing her vehicle to the left, and rendering it perpendicular to her original path of travel. She explained that while the initial impact was to the front passenger side, the damage to her vehicle extended the entire length of its passenger side, including the rear bumper.
Defendant testified that on the incident date she was operating a white Ford Explorer, exiling the parking lot of the subject shopping plaza. She indicated that she was attempting to return to her home, which would require her to make a left onto Little East Neck Road. Upon questioning, plaintiff acknowledged that making such a left turn would require her vehicle to first cross over two lanes of traffic. Plaintiff stated that the exit from the shopping plaza she chose to use was not regulated by any traffic control device and. if no other vehicles had been present, she would have been able to drive onto Little East Neck Road with ease. However, when asked, she agreed that a person exiting such parking lot when other vehicles are present on Little East Neck Road would be responsible for yielding to oncoming traffic. As to the incident date, plaintiff testified that she brought her vehicle to a halt at the exit of the shopping plaza parking lot, then waited a number of minutes because there was traffic approaching from her left. She averred that "a few" vehicles were stopped due to the red traffic light to her right, and that to the left of the shopping plaza exit she observed vehicles stopped in the right lane of Little East Neck Road. Plaintiff indicated that a vehicle in the right lane had stopped, allowing her to pull forward into the lane, perpendicular to the stopped vehicle. She stated that she then "inched out" to "see if there were any vehicles stopped" in the left lane, which she would need to cross in order to make her left turn and proceed south on Little East Neck Road. At such time, she heard "a boom" and now realizes that it was the sound of her vehicle colliding with the passenger side of plaintiffs vehicle, which had been approaching from her left, traveling in the left lane of Little East Neck Road. Plaintiff indicated that she never saw plaintiff s vehicle prior to the collision.
A party moving for summary judgment "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 N.Y.2d 320, 324. 508 N.Y.S.2d 923 [1986]). Failure to make such showing requires denial of the motion, regardless of the sufficiency of the opposing papers (Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851. 853, 487 N.Y.S.2d 316 [1985]). If the moving party produces the requisite evidence, the burden then shifts to the nonmoving party 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]). Mere conclusions, expressions of hope, or unsubstantiated allegations are insufficient to raise a triable issue (see Zuckerman v City of New York. 49 N.Y.2d 557. 427 N.Y.S.2d 595 [1980]). In deciding the motion, the Court must view all evidence in the light most favorable to the nonmoving party (see Ortiz v Varsity Holdings, LLC, 18 N.Y.3d 335, 339, 937 N.Y.S.2d 157 [2011 ]).
A plaintiff "is no longer required to show freedom from comparative fault in establishing his or her prima facie case" (Ashby v Estate of Encarnacion, 178 A.D.3d 763, 765, 111 N.Y.S.3d 894 [2d Dept 2019J; see Rodriguez v City of New York, 31 N.Y.3d 312, 76 N.Y.S.3d 898 [2018]). The Vehicle and Traffic Law establishes standards of care for motorists, and an unexcused violation of such standards of care constitutes negligence per se (see Brodney v Picinic, 172 A.D.3d 673, 99 N.Y.S.3d 399 [2d Dept 2019]). Vehicle & Traffic Law § 1143 provides that "[t]he driver of a vehicle about to enter or cross a roadway from any place other than another roadway shall yield the right of way to all vehicles approaching on the roadway to be entered or crossed." Furthermore, an operator of a motor vehicle has a "common-law duty to see that which [he or she] should have seen through the proper use of [his or her] senses" (Botero v Erraez, 289 A.D.2d 274, 275, 734 N.Y.S.2d 565 [2d Dept 2001 ]; see also Ferrara v Castro, 283 A.D.2d 392, 724 N.Y.S.2d 81 [2d Dept 2001]). "Although a driver with a right-of-way also has a duty to use reasonable care to avoid a collision, it has been recognized that a driver with the right-of-way who has only seconds to react to a vehicle which has failed to yield is not comparatively negligent for failing to avoid the collision" (Yelder v Walters, 64 A.D.3d 762, 764. 883 N.Y.S.2d 290 [2d Dept 2009] [internal citations omitted]).
Plaintiff established a prima facie case of entitlement to partial summary judgment in her favor (.see Huai Qiang Ye v Yepes, 208 A.D.3d 646, 174 N.Y.S.3d 75 [2d Dept 2022]; Harvey v White, 169 A.D.3d 884, 92 N.Y.S.3d 676 [2d Dept 2019]: Ricciardi v Nelson, 142 A.D.3d 492, 35 N.Y.S.3d 724 [2d Dept 2016]; Marcel v Sanders. 123 A.D.3d 1097, 1 N.Y.S.3d 230 [2d Dept 2014]; .see generally Alvarez v Prospect Hosp., supra). Through the deposition testimony, plaintiff demonstrated that she was operating her vehicle with the right of way when defendant's vehicle emerged from a shopping plaza exit, crossed a lane of traffic through a space left by a stopped pickup truck, and collided with the passenger side of her vehicle. Plaintiff also established, prima facie, that she was wearing a seatbelt at the time of the collision and that she did nothing to contribute to the happening of the accident. The burden then shifted to defendant to raise a triable issue (see generally Vega v Restani Constr. Corp., supra).
In opposition, defendant submits only her attorney's affirmation, wherein he argues that plaintiff has failed to eliminate all triable issues as to her own negligence. Such argument is unavailing. Defendant's counsel cites various cases relating to vehicles at intersections, and those with additional factors not seen in the instant matter. This accident did not occur within an intersection, nor is there any evidence that plaintiff was speeding or had sufficient opportunity to observe defendant's vehicle prior to the collision (cf Tornabene v Seickel, 186 A.D.3d 645, 129 N.Y.S.3d 110 [2d Dept 2020]). It is undisputed that plaintiff had the right of way and that defendant had a duty to yield (see Klein v Crespo, 50 A.D.3d 745, 855 N.Y.S.2d 633 [2d Dept 2008]). Further, plaintiff had no duty to anticipate that defendant's vehicle would suddenly attempt to drive across her lane of travel, from behind other vehicles, and toward a double-yellow line. Accordingly, plaintiffs motion is granted in its entirety.