Opinion
Index No. 54523/2019
08-17-2020
MIRIAN BONCARDO and ANTONIO BONCARDO, Plaintiff, v. PATRICIA COLE and JOHN T. COLH, Defendants.
To: Thomas Iannuccilli, Esq. James R. McCarl, Esq.
Unpublished Opinion
To: Thomas Iannuccilli, Esq.
James R. McCarl, Esq.
DECISION AND ORDER
McLOUGHLIN, EDWARD T., AJSC
The following documents were considered on plaintiff's motion for partial summary judgment:
NYSCEF Document Nos. 17-36
On May 3, 2019, plaintiff Mirian Boncardo was stopped in her vehicle at a stop sign at the intersection of Cedar Hill Road and Old Hopewell Road in Dutchess County when a car, driven by defendant Patricia Cole and owned by defendant John T. Cole, crossed a double yellow line and struck plaintiffs' vehicle.
Plaintiffs commenced this action for serious injury sustained by Mirian Boncardo (the injured plaintiff). Plaintiffs allege, inter alia, that defendant driver violated Vehicle and Traffic Law § 1126(a) by crossing the double yellow line (Moving Papers at Ex F ¶ 4). Defendants answered the complaint and asserted several affirmative defenses.
Antonio Boncardo also asserts a derivative claim,
Plaintiffs now move for partial summary judgment against defendants as to liability and to strike the first (culpable conduct); second (seal belt) and fifth (serious injury) affirmative defenses.In support of the motion as to liability, plaintiffs submit an affidavit of the injured plaintiff, an affidavit of a non-party eye-witness, photos of the accident site, and the police report.
Defendants have withdrawn their fourth and sixth affirmative defenses.
Injured plaintiff avers that on May 3, 2019 at about 5:30 p.m., she was driving, with her seat be It on, to visit a friend. She came to a T- intersect ion at Cedar Hill Road and Old Hopewell Road in the Town of Wappinger. She stopped at the stop sign on Cedar Hill Road and then moved forward and came to a "complete stop at a white line which ran parallel to Old Hopewell Road." She had her left blinker on and was waiting to safely turn. She looked left, saw cars and then turned to the right and saw other cars, one of which was defendants'. She turned again to look left “when the front passenger side/quarter panel of [her] ear was hit with such extreme force by the defendants' car.., that [the] car spun 180 degrees counterclockwise," "As a result of this impact, [her] left wrist violently hit the driver's side door" (Moving Papers at Ex I).
A non-party who witnessed the accident also submits an affidavit in support of the motion. The witness avers that just before the accident she was driving on Old Hopewell Road toward the direction of Cedar Hill Road when she saw defendants' car "traveling towards me...at a high rate of speed." As the car "approach[ed] Cedar Hill Road, it crossed over the double yellow line in front of [her] and then went into Cedar Hill Road without slowing down...hitting the front passenger side of [plaintiffs' vehicle] which was still stopped at the stop sign" (id. at Ex J).
A copy of the police accident report, certified by the executive deputy commissioner of Motor Vehicles, indicates that the operator of defendants' car "states [she does] not remember anything but assumed [she] lost control of [her] vehicle" (id. at Ex. K).
While negligence cases do not, as a rule, lend themselves to resolution by summary judgment, "where, as here, the facts clearly point to the negligence of one party without any fault or culpable conduct by the other party," summary judgment is appropriate (Morowilz v Naughton, 150 A.D.2d 536, 536 [2d Dept 1989]; accord Peralta v Moore, 272 A.D.2d 458 [2d Dept 2000]). "Crossing a double yellow line into the opposing lane of traffic, in violation of Vehicle and Traffic Law §1126(a), constitutes negligence as a matter of law, unless justified by an emergency situation not of the driver's own making" (Browne v Logan Bus Co., Inc., 156 A.D.3d 856, 856 [2d Dept 2017], quoting Foster v Sanchez, 17 A.D.3d 312, 313 [2d Dept 2005]).
Plaintiffs establish their entitlement to partial judgment as to liability as a matter of law by submitting evidence demonstrating, prima facie, that defendant driver crossed a double-yellow line while the injured plaintiff was stopped at a stop sign wailing to safely make a left turn, thereby causing the collision (see e.g. Sullivan v Mandato, 58 A.D.3d 714 [2d Dept. 2009]). It was then incumbent upon defendants to raise a triable issue of fact by admissible evidence.
In opposition, defendants argue that regardless of whether the police report was certified, it contains hearsay and is therefore inadmissible. However, even if uncertified, "that portion of the [police] report which contained a party admission by the [defendant] that she did not have a recollection of the accident" is a party admission and, therefore, admissible as an exception to the hearsay rule (Gezelter v Pecora, 129 A.D.3d 1021, 1023 [2d Dept 2015]; accord Harrinarain v Sisters of St. Joseph, 173 A.D.3d 983 [2d Dept 2019]).
It appears that the police report is properly certified as a business record (see CPLR 45 ] 8[c]).
Defendant's sole opposition, an affirmation by counsel, is insufficient to raise a material issue of fact as to liability (see Zuckerman v City of New York, 49 N.Y.2d 557 [1980] [bare affirmation by counsel without personal knowledge of the manner in which accident occurred is without evidentiary value and therefore unavailing]; see also Sirica v Beukelaer, 14 A.D.3d 549 [2d Dept 2005] [affirmation of counsel lacked probative weight and failed to raise triable issue]).
"Contrary to defendants' contention, the plaintiff was not required to demonstrate the absence of her own comparative negligence (first affirmative defense) to be entitled to summary judgment on the issue of liability" (Harrinarain, supra 173 A.D.3d at 984; accord Balladares v City of New York, 177 A.D.3d 942 [2d Dept 2019]). In any event, "the issue of a plaintiffs comparative negligence may be decided in the context of a summary judgment motion where, as here, the plaintiff moved for summary judgement dismissing a defendant's affirmative defense of comparative negligence" (Balladares, supra at 943). Defendants fail to raise a triable issue of fact as to any negligence on plaintiffs' part in the happening of the accident.
As to the second affirmative defense (failure to use seal bells), defendants have failed to raise an issue of fact to controvert injured plaintiffs affidavit in which she avers that she was wearing a seatbelt (see generally Kuehne & Nagel, Inc. v F. W. Baiden, 36 N.Y.2d 539, 544 [ 1975] (facts appearing in the moving papers which the opposing party docs not controvert may be deemed to be admitted]). In any event, failure lo wear a seatbelt has no bearing on the issue of liability (see Brabham v City of New York, 105 A.D.3d 881 [2d Dept 2013]). As the record is devoid of any evidence that plaintiff was not wearing her seatbelt at the time of the accident, this defense, in light of injured plaintiffs affidavit, may not be used to mitigate damages (cf Brabham, supra).
Finally, on the issue of liability, "contrary to the defendants' contention, the plaintiff[] motion was not premature as the defendants failed to offer an evidentiary basis to suggest that discovery might lead to relevant evidence and that facts essential to justify opposition to the motion were exclusively within the knowledge and control of the plaintiff (Harrinarain, supra 173 A.D.3d at 984; see also Delgado v Martinez Family Auto, 113 A.D.3d 426 [1st Dept 2014] [defendant driver who possesses personal knowledge of relevant facts did not provide an affidavit]).
Accordingly, plaintiff established a prima facie entitlement lo judgment as a matter of law on the issue of liability.
Plaintiffs allege that the injured plaintiff sustained a nondisplaced fracture at the base of the left ulnar styloid. A fracture is a serious injury as defined by Insurance Law 5102(d) (see also Nussbaum v Chase, 166 A.D.3d 638 [2d Dept 2018]; Oliver v New York City Tr. Auth., 96 A.D.3d 1028 [2d Dept 2012]. Once a plaintiff establishes that anyone of the injuries sustained in an accident is a serious injury as defined by Insurance Law § 5102(d), "a plaintiff is entitled to seek recovery for all injuries incurred as a result of the accident" (Bonner v Hill, 302 A.D.2d 544, 545 [2d Dept 2003]; accord Nussbaum, supra]).
In support of that branch of their motion to dismiss defendants1 serious injury affirmative defense, plaintiffs submit an affirmation of injured plaintiffs orthopedic surgeon and records of her medical treatment in the aftermath of the accident, all of which indicate that she sustained a fracture as a result of the car accident and sought immediate and on-going treatment. In particular, based on an examination and treatment of injured plaintiff and on her medical history and medical records, plaintiffs orthopedic surgeon affirmed that "with a medical degree of certainty" that "this accident was causally related to the patient's diagnosis of: a left ulnar styloid fracture..." (Moving Papers at Ex L; See also Ex M). Accordingly, plaintiffs have sustained their burden on the motion as to whether the injured plaintiff sustained a serious injury under the Insurance Law (see Boorman v Bowhers, 27 A.D.3d 1058 [4th Dept 2006]; cf. Lesane v Tejada, 15 A.D.3d 358 [2d Dept 2005]).
Defendants do not submit any competent evidence which raises a material issue of fact as to whether plaintiff sustained a serious injury as a result of this accident. Accordingly, the matter is to proceed on the issue of damages only.
Based on the foregoing, it is hereby
ORDERED that that branch of plaintiffs' motion for partial summary judgment as to liability against defendants is granted; and it is further
ORDERED that that branch of plaintiffs' motion to dismiss the first, second, and fifth affirmative defenses is granted; and it is further ORDERED that the fourth and sixth affirmative defenses are dismissed as withdrawn; and it is further
ORDERED that the parties appear for a preliminary conference on the issue of damages only on September 22, 2020 at 10:00 a.m.
The foregoing constitutes the decision and order of the Court.