Opinion
Index No. 69636/2017 Seq. No. 2
09-30-2019
GINA CONKLIN, Plaintiff, v. TIFFANY AMBER HORN, ANDREW CONKLIN and RANDY CONKLIN Defendant(s). ANDREW S. CONKLIN, Third-Patty Plaintiff, v. TIFFANY AMBER HORN, Third-Patty Defendant.
Unpublished Opinion
DECISION & ORDER
Sam D. Walker, Judge
The following papers were read on the defendant's motion for summary judgment dismissing the complaint and any cross claims against her:
Notice of Motion/Affirmation in Support/Exhibits a-e
1-7
Affirmation in Opposition/Exhibits 1-10
8-18
Affirmation in Opposition/Exhibits A-B
19-21
Factual and Procedural Background
The plaintiff, Gina Conklin, commenced this action on November 29, 2017, to recover damages for injuries she allegedly sustained in a motor vehicle accident that occurred on, March 2, 2016, when a vehicle operated by Andrew S. Conklin, and owned by Randy Conklin, in which Gina Conklin was a passenger, collided with a vehicle operated by Tiffany Amber Horn ("Horn").
Andrew Conklin also commenced another action on February 23, 2018 against Tiffany Amber Horn. By Decision and Order of this Court, dated March 20, 2019, that action was consolidated with this action and the caption amended.
Horn now files the instant motion for an order pursuant to CPLR 3212 granting summary judgment dismissing the complaint and any and all cross claims against her on the basis that she was not negligent, is not liable, and did not breach any duty owed. Horn argues that it is clear from the testimony of all parties, that there is no negligence on her part. Both Gina Conklin and Andrew Conklin filed opposition to the motion arguing that there are issues of fact as to how the accident occurred, precluding summary judgment.
Discussion
A party moving for summary judgment bears the initial burden of affirmatively demonstrating its entitlement to summary judgment as a matter of law (see Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 853 [1985); Alvarez v Prospect Hospital, 68 N.Y.2d 320, 324 [1986]). To demonstrate its entitlement to relief, the moving party must come forward with evidentiary proof that establishes the absence of any material issues of fact, (see McDonald v Mauss, 38 A.D.3d 727, 728 [2d Dept 2007]). Once the moving party has established its prima facie entitlement to summary judgment, the burden shifts to the opposing party to submit evidentiary proof in admissible form to establish material issues of fact (see Alvarez, 68 N.Y.2d at 324; Winegrad, 64 N.Y.2d at 853).
Opposing counsel assert that Horn's motion should be dismissed because her attorney failed to include a copy of the pleadings with her motion. However, "[notwithstanding that CPLR 3212(b) requires that motions for summary judgment be supported by a copy of the pleadings, CPLR 2001 permits a court, at any stage of an action, to "'disregard a party's mistake, omission, defect, or irregularity if a substantial right of a party is not prejudiced'" (see Wade v Knight Transp., Inc., 151 A.D.3d 1107, 1109 [2d Dept 2017)). Here, the record is sufficiently complete and the other parties have not been prejudiced by the failure to include the pleadings. Furthermore, since this action and motion was filed electronically, the Court has access to all documents in the file and the opposing counsel included a copy of the pleadings with their opposition, therefore, the record is sufficiently complete (see Long Is. Pine Barrens Socy., Inc. v County of Suffolk, 122 A.D.3d 688 [2d Dept 2014)).
With regard to the merits of the case, the evidence demonstrates the plaintiffs prima facie entitlement to judgment as a matter of law by establishing that GinaConklin and Andrew Conklin"s vehicle proceeded into an intersection controlled by a stop sign without yielding the right of way to the approaching vehicle (see Vehicle and Traffic Law §§ 1142[a] 1172[a]), thereby shifting the burden to the defendant to demonstrate the existence of a factual issue requiring a trial (see Goemans v County of Suffolk, 57 A.D.3d 478, 479 [2d Dept 2008) ["the County established its prima facie entitlement to judgment as a matter of law by evidence that Sellers failed to yield the right-of-way upon entering the subject intersection in violation of Vehicle and Traffic Law § 1142(a) and thus was negligent as a matter of law."]; Thompson v Schmtt, 902 NYS.2d 606, 607 [2d Dept 2010] [Plaintiff established prima facie entitlement to judgment as a matter of law on the issue of liability by demonstrating "that the defendant driver, who was faced with a stop sign at the intersection ... negligently entered the intersection without yielding the right of way to his approaching vehicle and that this was the sole proximate cause of the accident"])
The fact that Andrew Conklin was required to stop his vehicle at a stop sign, while Horn's route of travel was not encumbered by a requirement to stop, established that Andrew Conklin failed to yield the right of way to Horn (Id.; see also, Szczotka v Adler, 291 A.D.2d 444 [2d Dept 2002]). "A driver who fails to yield the right-of-way after stopping at a stop sign controlling traffic is in violation of Vehicle and Traffic Law § 1142(a) and is negligent as a matter of law" (see Gergis v Miccio, 39 A.D.3d 468, 468 [2d Dept 2007]; see also Maliza v Puerto-Rican Transp. Corp., 50 A.D.3d 650 [2d Dept 2008]).
In Szczotka v Adler, the plaintiff moved for summary judgment on the issue of liability asserting that the defendant failed to stop at the stop sign. In opposition, the defendant asserted that he did stop at the stop sign and that the plaintiff must have been speeding. The Second Department held that "(r)egardless of whether the defendant stopped at the slop sign, the plaintiff established that the defendant violated Vehicle and Traffic I aw § 1142(a) by failing to vield the right of way to her” Szczotka v Adler, 291 A.D.2d 444 [2d Dept 2002]).
Furthermore, Andrew Conklin was obligated to see that which by the proper use of his senses he should have seen, and Horn, as the driver with the right-of-way, was entitled to anticipate that Conklin would obey traffic laws which required him to yield (see Moussouros v Liter, 22 A.D.3d 469, 470 [2d Dept 2005]).
Here, the Conklins assert in opposition that Horn's vehicle was still stopped at the stop line when Horn's vehicle swerved and hit their vehicle. They argue that there are triable issues of fact as to how the accident occurred, including if they had entered the intersection as Horn approached, whether Horn's vehicle swerved off of the road she was traveling on and hit their vehicle and the speed at which Horn's vehicle was traveling. The Court finds that the Conklins have raised issues of material fact to rebut the plaintiff's prima facie showing of entitlement to judgment as a matter of law.
Accordingly, it is
ORDERED that Tiffany Amber Horn's motion for summary judgment to dismiss the complaint and any and all cross claims against her, is DENIED.
The parties are directed to appear in the Settlement Conference Part in courtroom 1600 on November 19, 2019 at 9:15 a.m.
The foregoing constitutes the Decision and Order of this Court.