Opinion
Index EF000604-2017
04-16-2020
JENNIFER BRULATOUR, as Administrator of the Estate of KEITH BRULATOUR, Plaintiff, v. BRENNA COONEY and MICHAEL COONEY, Defendants.
Unpublished Opinion
Motion Date: January 30, 2020.
Present: HON. CATHERINE M. BARTLETT, A.J.S.C.
HON. CATHERINE M. BARTLETT, A.J.S.C.
To commence the statutory time period for appeals as of right (CPLR5513[a]), you are advised to serve a copy of this order, with notice of entry, upon all parties.
The following papers numbered 1 to 5 were read on Defendants' motion for summary judgment
Notice of Motion- Affirmation/ Exhibits - Expert Affidavit...................... 1-3
Affirmation in Opposition ...............................................4
Reply Affirmation............................................................. 5
Upon the foregoing papers it is ORDERED that the motion is disposed of as follows: This is an action to recover for personal injuries arising out of a cross-over motor vehicle accident. Plaintiffs decedent, Keith Brulatour, testified that a vehicle operated by defendant Brenna Cooney crossed over into his lane of traffic and struck his vehicle head on before he had any opportunity to take evasive action. Her son, Matthew Brulatour, avers that he was driving two cars behind his father, that another vehicle crossed over and the ensuing collision occurred entirely in his father's lane.
Defendant Brenna Cooney testified that Mr. Brulatour's vehicle crossed over into her lane of traffic, struck her vehicle head on and flipped over the hood of her vehicle. An independent third party witness who was driving directly behind Mr. Brulatour confirmed that the accident occurred when Mr. Brulatour crossed over into Ms. Cooney's lane. Skid marks and gouge marks in the road, as well as broken glass, were all located in Ms. Cooney's lane of traffic, and both vehicles ended up on her side of the roadway. Defendants' accident reconstruction expert averred, based inter alia on the aforesaid physical evidence as well as the nature of the damage to the two vehicles that the accident occurred when Mr. Brulatour veered left into Ms. Cooney's lane, and could not, consistent with the physical evidence, have occurred as the Brulatours maintain by Ms. Cooney's having veered to her left into Mr. Brulatour's lane. Plaintiff has submitted no expert accident reconstruction evidence in opposition.
Testimony may be deemed incredible as a matter of law and "disregarded as being without evidentiary value" if it is "impossible of belief because it [was] manifestly untrue, physically impossible, contrary to experience, or self-contradictory." See, Loughlin v. City of New York, 186 A.D.2d 176, 177 (2d Dept. 1992), Iv. denied 81 N.Y.2d 704 (1993); Zapata v. Buitriago, 107 A.D.3d 977, 979 (2d Dept. 2013); People v. Garofalo, 44 A.D.2d 86, 88 (2d Dept. 1974. See also. Castro v. Hatim. 174 A.D.3d 464, 465-466 (1st Dept. 2019); Pryce v. City of New York, 172 A.D.3d 625, 629 (1st Dept 2019).
Here, defendant Brenna Cooney's account of the accident was confirmed by an independent third party witness traveling directly behind Mr. Brulatour. It is, moreover, substantiated by all of the physical evidence as interpreted by her accident reconstruction expert. In contrast, the Brulatours' evidence is wholly self-serving, contradicted by the independent witness to the accident, and contrary to all of the physical evidence, as Plaintiff has tacitly admitted by failing to adduce any evidence in opposition to the affidavit proffered by the defense accident reconstruction expert. Under the circumstances, the Court concludes that the decedent's deposition testimony as well as his son's affidavit are incredible as a matter of law and to be disregarded as without evidentiary value because their account of the accident is physically impossible in light of the physical evidence, and manifestly untrue.
The Court accordingly finds as a matter of law that Plaintiffs decedent, and not defendant Brenna Cooney, violated Vehicle and Traffic Law §1120(a) (which provides that "vehicle[s] shall be driven upon the right half of the roadway") by crossing over into the opposing lane of traffic. Inasmuch as (1) Mr. Brulatour was negligent perse unless justified by an emergency situation not of the driver's own making (see. Foster v. Sanchez, 17 A.D.3d 312, 313 [2d Dept 2005]; Marsicano v. Dealer Stor. Corp., 8 A.D.3d 451, 452 [2d Dept2004]; Gadon v. Oliva, 294 A.D.2d 397, 397-398 [2d Dept 2002]), and (2) Ms. Cooney was not obligated to anticipate that a vehicle traveling in the opposite direction will cross over into the oncoming lane of traffic" (Marsch v. Catanzaro, 40 A.D.3d 941, 942 [2d Dept. 2007]), the Court concludes as a matter of law that Mr. Brulatour's negligence in crossing over into Ms. Cooney's lane of travel was the sole proximate cause of accident.
It is therefore
ORDERED, that Defendants1 motion tor summary judgment is granted, Plaintiffs cross motion for partial summary judgment on the issue of threshold injury is denied as moot, and the Plaintiffs complaint is dismissed.
The foregoing constitutes the decision and order of the Court.