Opinion
Claim No. 132659
09-23-2021
Philip J. BILSKY and Jeanne A. Bilsky, Claimants, v. The STATE of New York, Defendant.
For Claimants: FELLOWS HYMOWITZ, PC, By: Joanne R. Horowitz, Esq. For Defendant: HON. LETITIA JAMES, New York State Attorney General, By: Albert E. Masry, Esq., Assistant Attorney General
For Claimants: FELLOWS HYMOWITZ, PC, By: Joanne R. Horowitz, Esq.
For Defendant: HON. LETITIA JAMES, New York State Attorney General, By: Albert E. Masry, Esq., Assistant Attorney General
Frank P. Milano, J.
Claimants move for an order pursuant to CPLR 3212 granting claimants summary judgment as to defendant's liability for negligently injuring claimant Philip J. Bilsky (claimant/pedestrian) by striking claimant/pedestrian with defendant's state-owned car while claimant/pedestrian was walking in a shopping center parking lot.
Defendant opposes the claimants’ motion.
The claim alleges that:
"[O]n or about November 12, 2017 at approximately 2:02 pm at the Orangetown Shopping Center at a point about 400 feet south of Orangeburg Road, in the Town of Orangeburg, County of Rockland, State of New York, the claimant, PHILIP J. BILSKY was a pedestrian legally present at the aforementioned location, a roadway, when he was struck by the aforementioned 2005 Dodge suburban, owned by ... THE STATE OF NEW YORK ... and operated by ... an agent\servant\employee of [defendant]."
The claim further alleges that the claimant/pedestrian suffered:
"[A] closed head injury with loss of consciousness, a concussion, positional vertigo, dizziness, injury to his right ear, proximal vertigo, permanent scarring to the head, impairment of ambulation and balance, unsteadiness, impairment of urinary function and pain and restriction of the lumbar spine, numbness in fingers, buzzing in ears, inability to work, the need for use of ambulatory devices including a cane, short term memory loss, partial hearing loss, internal bleeding, post-concussion syndrome ; right peripheral vestibular dysfunction; cerebral and cerebellar atrophy; tinnitus and other injuries."
Defendant's answer alleges, among other things, that claimants’ injuries and damages "are attributable, in whole or in part, to the comparative negligence or culpable conduct of the claimant."
Claimants offer the certified police accident report containing the driver's statement that "DRIVER SIDE MIRROR OF V No.1 STRUCK PEDESTRIAN WHO WAS THEN KNOCKED TO THE GROUND WHERE HE STRUCK HIS HEAD CAUSING A LACERATION UNDER HIS LEFT EYE AND CAUSING HIM TO TEMPORARILY LOSE CONSCIOUSNESS."
According to the supporting affirmation of claimants’ attorney:
"[The claimant/pedestrian] was deposed on March 9, 2020 ... The traumatic head injury sustained by [claimant/pedestrian] caused him to lose conscious [sic] and he had no memory of the events other than leaving the Dunkin Donuts where he worked in order to walk to his car which was parked in the parking lot. His next memory was of being in the hospital, where he was admitted for four days."
The deposition testimony of the defendant's employee (driver) who was driving the defendant's vehicle shows that immediately prior to the accident the driver, pursuant to her employment with defendant, had dropped off residents of Rockland State Hospital at a store located in the Orangeburg Shopping Center called Tip Top Stationary.
The driver was familiar with the shopping plaza through both work and personal shopping visits. She was aware that pedestrians would walk from the parking lot across the roadway to shopping plaza stores and from the stores back across the roadway to the parking lot. The driver stated that she was aware of the sidewalk and roadway between the Dunkin’ Donuts store where the claimant/pedestrian worked and the parking lot.
The driver admitted at her deposition that the vehicle she was driving struck the claimant/pedestrian as she drove the vehicle in the shopping center roadway between the parking lot and the shopping center stores. She testified that at the accident location the shopping center stores were on her left and the parking lot was on her right. The driver stated that she had let out her passengers in front of the Tip Top Stationary and proceeded to a stop sign where she came to a stop.
The driver then made a right turn at the stop sign and traveled 10-15 feet straight ahead before she heard a thud and saw the claimant/pedestrian lying on the ground to her left. The driver testified that driver's side of her vehicle struck the claimant/pedestrian. The driver further testified that she believes that the claimant/pedestrian was struck by the driver's side mirror of the state-owned vehicle.
According to the driver's testimony, she did not see the claimant/pedestrian before she heard the thud. The driver further testified that the reason she did not see the claimant/pedestrian before impact was "[b]ecause as soon as I — I made a right turn on the stop sign, the sun was in my eye, and I couldn't see."
The driver admitted that because she "couldn't see" she "slowed down" her vehicle but continued to drive forward for a "few seconds" for "[t]en, 15 feet" before the impact with the claimant/pedestrian.
The driver stated that she did not consider stopping her vehicle even though she couldn't see pedestrian or vehicular traffic in front of her because "there might be cars behind me." Claimant/Pedestrian Philip Bilsky testified at his deposition that on the day of the accident he was a 74 year old retired police officer who worked as a full-time shift leader at Dunkin’ Donuts in Orangetown Shopping Center. Claimant/pedestrian had worked at Dunkin’ Donuts since 2009 and had completed his shift and was walking across the shopping plaza roadway from the Dunkin’ Donuts store to his car in the parking lot just before the accident.
He has no memory of being struck by the defendant's vehicle and his next recollection was of waking up in the hospital where he remained for four days.
The pertinent considerations in determining a summary judgment motion are clear:
"A motion for summary judgment should be entertained only after the moving party has established, by competent admissible evidence, that it is entitled to judgment as a matter of law. If the movant meets this initial burden, the opposing party is required to submit evidence which raises a material issue of fact to preclude an award of summary judgment" ( Ware v Baxter Health Care Corp. , 25 AD3d 863, 864 [3d Dept 2006] ).
Once the moving party has satisfied this obligation, the burden shifts and the party opposing the motion must demonstrate by admissible evidence the existence of a factual issue ( Svoboda v Our Lady of Lourdes Memorial Hospital, Inc. , 31 AD3d 877 [3d Dept 2006] ).
The Court "must view the evidence in the light most favorable to the party opposing the motion, giving that party the benefit of every reasonable inference and ascertaining whether there exists any triable issue of fact" ( Boston v Dunham , 274 AD2d 708, 709 [3d Dept 2000] ).
The claimants essentially allege that defendant's driver failed to exercise due care in her operation of her vehicle and failed keep a proper lookout for, and avoid, a pedestrian in the roadway.
In support of their summary judgment motion, claimants rely on claimant/pedestrian's pre-accident recollections, the deposition testimony of the driver and the certified police accident report containing the driver's statement that the "DRIVER SIDE MIRROR OF V#1 STRUCK PEDESTRIAN WHO WAS THEN KNOCKED TO THE GROUND WHERE HE STRUCK HIS HEAD CAUSING A LACERATION UNDER HIS LEFT EYE AND CAUSING HIM TO TEMPORARILY LOSE CONSCIOUSNESS."
Claimants argue that the above-stated uncontradicted facts show, as a matter of law, that the defendant violated Vehicle and Traffic Law 1146 (a) which provides at relevant part as follows:
"[E]very driver of a vehicle shall exercise due care to avoid colliding with any ... pedestrian ... upon any roadway and shall give warning by sounding the horn when necessary."
Claimants cite Smith v State of New York (121 AD3d 1358, 1359 [3d Dept 2014] ) in support of their motion. Smith , in finding that the defendant had violated Vehicle and Traffic Law 1146 (a), among other violations, reminds that an unexcused violation of the Vehicle and Traffic Law constitutes negligence per se and reiterates "the legal concept that every driver has a duty to see what is there to be seen through the proper use of his or her senses."
Claimants further argue that the driver's assertion that she could not see the claimant/pedestrian because of sun glare cannot support application of the common-law emergency doctrine to excuse the driver for failing to avoid striking the claimant/pedestrian with her vehicle.
The common-law emergency doctrine:
"[R]ecognizes that when an actor is faced with a sudden and unexpected circumstance which leaves little or no time for thought, deliberation or consideration, or causes the actor to be reasonably so disturbed that the actor must make a speedy decision without weighing alternative courses of conduct, the actor may not be negligent if the actions taken are reasonable and prudent in the emergency context" ( Rivera v New York City Transit Auth. , 77 NY2d 322, 327 [1991] ).
Claimants offer several cases holding that temporary obstruction of vision due to sun glare cannot be considered a sudden and unexpected circumstance ( Lifson v City of Syracuse , 17 NY3d 492 [2011] ; Rodriguez v Beal , 191 AD3d 617 [1st Dept 2021] ; Barry v Pepsi—Cola Bottling Co. of NY, Inc. , 130 AD3d 500 [1st Dept 2015], lv denied 26 NY3d 910 [2015] ).
The Court finds that claimants met their initial burden on the summary judgment motion through submission of the certified accident report containing the driver's statement and through the deposition testimony of the claimant/pedestrian and the driver.
In opposition to the claimants’ summary judgment motion, defendant offers the affirmation of its attorney.
Defendant argues that an issue of fact requiring a trial exists as to whether claimant/pedestrian's allegedly culpable acts and/or omissions in failing to exercise reasonable care for his own safety and in failing to keep a proper lookout, while crossing the roadway outside of a cross-walk, was the sole proximate cause of the accident and claimant/pedestrian's injuries.
The law is now clear that a claimant is not required to establish the absence of his own comparative negligence in order to obtain partial summary judgment against the defendant in a comparative negligence case. ( Rodriguez v City of New York , 31 NY3d 312, 315 [2018] ).
There is uncontradicted evidence in the record that the driver proceeded forward in her vehicle in a shopping center parking lot, knowing that pedestrians were regularly crossing the roadway between stores and the parking lot, while unable to see pedestrians or other vehicles in front of her vehicle.
In view of that evidence, and acknowledging that the claimant/pedestrian may bear comparative responsibility for his injuries, the Court finds as a matter of law that the alleged acts and/or omissions of the claimant/pedestrian were not the sole proximate cause of the accident.
Defendant next argues that the driver's claim that she was blinded by the sun as she drove along the roadway constituted an emergency situation and that the driver reacted reasonably to the alleged sun glare emergency situation.
Defendant contends that the cases cited by claimants for the proposition that sun glare cannot constitute an emergency situation all involve rear-end collisions, unlike the present claim, and that the Lifson decision by the Court of Appeals leaves open the possibility that sun glare may generate an emergency situation under the right circumstances.
Even conceding that the alleged sun glare constituted an emergency situation, which the Court does not, the driver's response in proceeding forward in the roadway between the shopping center stores and parking lot, where the driver knew pedestrians were potentially present until she heard a thud and saw the bleeding claimant/pedestrian on the ground, is unreasonable as a matter of law.
The Court's rejection of the defendant's assertion that the driver's claim of sun glare constituted an emergency situation is supported by the recent holding in Girard v Town of Orangetown (195 AD3d 902 [2d Dept 2021] ).
In Girard :
"[T]he plaintiff was in a crosswalk traversing North Middletown Road in Pearl River when she was struck by a vehicle driven by nonparty Angelica Gynegrowski. Gynegrowski, who had been traveling west on Holt Drive, was in the process of turning left onto North Middletown Road when she struck the plaintiff.
The plaintiff subsequently commenced this action against the defendants Town of Orangetown, Orangetown Highway Department, and Orangetown Highway Superintendent's Office (hereinafter collectively the Town) and the defendants County of Rockland and County of Rockland Highway Department (hereinafter together the County), alleging that the Town and the County were negligent in failing to implement traffic safety improvements to ensure that pedestrians could safely cross North Middletown Road."
The Girard court affirmed the lower court's order granting the summary judgment dismissal motions of the Town and County because the sole proximate cause of the accident was the negligence of the driver of the vehicle which struck the plaintiff:
"Here, the Town and the County each established its prima facie entitlement to judgment as a matter of law by demonstrating that Gynegrowski failed to see the plaintiff in the crosswalk because she was temporarily blinded by sun glare as she made the left turn onto North Middletown Road." The Court finds further support in Morales v Lia (238 AD2d 786, 787 [3d Dept 1997] ). In Morales :
"[P]laintiff was struck and seriously injured by a vehicle owned by defendant Stephen J. Haimowitz and operated by defendant Ann F. Gainer. The accident occurred on a roadway within a shopping mall which is located in the Town of Guilderland, Albany County; on the date of the accident the mall was owned by defendant William Lia. At an examination before trial Gainer testified that she was blinded by the sun after she turned from south to east near a restaurant located in the mall and struck plaintiff, who was apparently walking in the roadway some 75 feet from the turn; Gainer also testified that, at the time she struck plaintiff, she was proceeding at 10 to 15 miles per hour."
In dismissing the complaint against the parking lot owner the court found that the sole proximate cause of the accident was the negligence of the driver in proceeding forward while unable to see due to sun glare:
"In our view, Lia established a prima facie entitlement to summary judgment. Gainer's testimony indicated that she continued to drive the vehicle, albeit slowly, for 75 feet despite being blinded by the sun while looking for a parking space, that she did not see plaintiff who was walking in the roadway until she struck him, and that she failed to apply her brakes until after striking him."
After carefully reviewing the entire record, and giving the party opposing the summary judgment motion the benefit of every reasonable inference, as it must, the Court finds that no material issues of fact exist as to defendant's negligence liability.
The defendant's driver failed to use due care in operating her vehicle and failed to keep a proper lookout for pedestrians, just prior to, and at, impact with the claimant/pedestrian.
The claimants’ motion for summary judgment as to defendant's liability for claimants’ injuries and damages is granted. A trial considering the issues of claimant/pedestrian's alleged comparative fault, whether claimant/pedestrian sustained a serious injury pursuant to the Insurance Law and the extent of claimants’ injuries and damages will be scheduled.
Papers Considered:
1. Claimants’ Notice of Motion for Summary Judgment on Liability, filed July 8, 2021;
2. Affirmation of Joanne R. Horowitz, dated July 1, 2021, and attached exhibits;
3. Affirmation in Opposition of Albert E. Masry, dated August 18, 2021.