Opinion
No. 14–520.
07-02-2015
Samuel A. DECICCO, Plaintiff, v. Tracie A. SHORT and Wayne M. Short, Defendants.
Gregory P. Garofalo, Esq., Law Office of Gregory P. Garofalo, Ballston Spa, Counsel for Plaintiff. Christina M. Piracci, Esq., McCabe & Mack, LLP, Poughkeepsie, Counsel for Defendants, movant.
Gregory P. Garofalo, Esq., Law Office of Gregory P. Garofalo, Ballston Spa, Counsel for Plaintiff.
Christina M. Piracci, Esq., McCabe & Mack, LLP, Poughkeepsie, Counsel for Defendants, movant.
LISA M. FISHER, J.
This is a motor vehicle accident action wherein Plaintiff was allegedly injured when the motor vehicle operated by Defendant Tracie A. Short (hereinafter “Defendant Tracie”) and owned by Defendant Wayne M. Short (hereinafter “Defendant Wayne”) collided with Plaintiff's vehicle as he was backing out of his driveway on February 28, 2011, in the City of Kingston, County of Ulster, and State of New York. Some paper disclosure has been exchanged but no depositions have been attached to either parties' motions; the Court assumes that is because they have not been conducted.
Rather than continue with disclosure, Defendants move for an Order granting summary judgment pursuant to CPLR R. 3212 arguing that Plaintiff cannot make out a prima facie case of negligence since he is fully responsible for the accident because he failed to yield to oncoming traffic when he was backing out of the driveway. Defendant Tracie avers that she had the right-of-way, was traveling within the speed limit, was aware of her surroundings, and was not distracted at the time of the accident. She claims that Plaintiff failed to stop at the end of his driveway and backed into her lane of traffic giving her only seconds to react which was not enough time to avoid the ensuing collision. Her affidavit claims that “the rear of [Plaintiff's car] hit the front passenger side of [her] car.” (Piracci Affirmation, Exhibit D [Tracie A. Short affidavit], ¶ 9.) She supports her claim with a series of photographs depicting the damage done to both motor vehicles, as well as the police accident report. Defendants further claim that Plaintiff violates multiple Vehicle and Traffic Law sections, including Section 1211 (backing up) and Section 1143 (entering roadway).
Plaintiff opposes the motion arguing that 1) Defendants have failed to establish entitlement to judgment as a matter of law, 2) Defendants have failed to establish that they are free from negligence nor have they established that Plaintiff violated any Vehicle and Traffic Law sections, 3) material issues of fact remain for consideration at trial, and 4) Plaintiff has presented evidentiary proof in admissible form that defeats Defendants' allegations that extinguish claims of failure to establish a prima facie case. In support, Plaintiff submits an affidavit and report of an accident reconstructionist, Christopher Calbrese, who opined that Defendant Tracie had a 600 foot unobstructed view of Plaintiff's driveway leaving her sufficient time to not only observe Plaintiff's vehicle descending the driveway but to also avoid the collision. Plaintiff's expert also claims that if Defendant Tracie was traveling at thirty (30) miles per hour, she would have between 1.3 and 1.5 seconds to avoid the collision which was “ample time” to brake or swerve. In fact, he opines that if she applied full braking she would have been able to stop the vehicle at thirty (30) MPH or less, or at least minimize the impact. The expert also states that the force of Defendant Tracie's vehicle was sufficient enough to spin Plaintiff's vehicle clockwise which raises a question as to the speed at which Defendant Tracie was traveling. Plaintiff's affidavit averred he braked and looked for oncoming traffic before proceeding from his driveway and that he had an unobstructed view of the direction where Defendant Tracie was traveling. However, when he backed out of his driveway, Defendant Tracie came out “like she was going 50–60 mph” and hit both the right corner panel and the bumper.
Initially, the Court did not receive a copy of Plaintiff's expert affidavit, but the record was clear that Defendant did receive a copy of such report and had the opportunity to review and make arguments against it. The Court received Plaintiff's expert affidavit after requesting the document.
Defendants submit a Reply arguing that Plaintiff's expert report lacks a foundation and is devoid of any opinion sufficient to warrant denial of the motion. Specifically, Defendants argue that the expert report should not be afforded any weight because the opinions therein are not supported by the factual circumstances of the accident. For instance, Defendants point out that Plaintiff's expert claims there was a second impact between the vehicles at the right rear side of Defendant Tracie's vehicle and in front of Plaintiff's car, however neither Plaintiff nor Defendants have stated that fact. Another example is that the expert opined Defendant Tracie had between 1.3 and 1.5 seconds and should have braked or swerved, to which Defendants also point out that she did swerve but still could not avoid the collision. Thus, Defendants claim that the expert's report is speculative and should be ignored. Defendants also argue for the first time in their motion that the emergency doctrine applies. Defendants did not provide an expert affidavit in their Reply to rebut Plaintiff's expert's claims other than their own attorney dissecting Plaintiff's expert's affidavit and report.
It has been well established that summary judgment is a drastic remedy and should not be granted where there is any doubt as to the existence of a triable issue. (Vega v. Restani Const. Corp., 18 NY3d 499, 503 [2012] ; Sternbach v. Cornell Univ., 162 A.D.2d 922, 923 [3d Dept 1990].) “[I]n deciding a motion for summary judgment, the trial court must view all evidence in the light most favorable to the party against whom such judgment is sought and, where there is any doubt as to the existence of a triable issue of fact, it should deny the motion since the goal is issue finding rather than issue determination.” (Swartout v. Consolidated Rail Corp., 294 A.D.2d 785, 786 [3d Dept 2002] [citations omitted]; see also Oritz v. Varsity Holdings, LLC, 18 NY3d 335, 339 [2011] ; Greco v. Boyce, 262 A.D.2d 734, 734 [3d Dept 1999] [holding courts are “to view the evidence in light most favorable to the nonmoving party, affording that party the benefit of all reasonable inferences, and to ascertain whether a material, triable issue of fact exists.”].) Furthermore, the Court of Appeals has stated that “[n]eglience cases by their very nature do not usually lend themselves to summary judgment, since often ... the very question of negligence is itself a question for jury determination.” (Ugarriza v. Schmieder, 46 N.Y.2d 471, 474 [1979].)
It is equally well-settled by the Court of Appeals that “the proponent of a summary judgment motion 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 [1986] ; see also Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851 [1985] ; Zuckerman v. City of New York, 49 N.Y.2d 557 [1980] ; accord Hollis v. Charlew Const. Co., Inc., 302 A.D.2d 700 [3d Dept 2003].)
To establish a prima facie entitlement to judgment as a matter of law, a moving party must present proof in admissible form to demonstrate the absence of any triable issues of fact as to each and every allegation in the complaint and bill of particulars. (See Alvarez, 68 N.Y.2d at 320 ; Hollis, 302 A.D.2d at 700.) Such “burden may not be met by pointing to gaps in plaintiff's proof.” (DiBartolomeo v. St. Peter's Hosp. of City of Albany, 73 AD3d 1326 [3d Dept 2010] ; accord Dow v. Schenectady County Dept. of Social Servs., 46 AD3d 1084, 1084 [3d Dept 2007].) The failure of the moving papers to eliminate all material issues of fact requires the denial of the motion for summary judgment. (See Alvarez, 68 N.Y.2d at 324 ; Winegrad, 64 N.Y.2d at 853.) This burden is also not met by raising new arguments in the reply papers. (Potter v. Blue Shield of Northeastern New York, a Div. of Blue Shield of Western New York, Inc., 216 A.D.2d 773, 775 [3d Dept 1995] ; see N.A.S. Partnership v. Kligerman, 271 A.D.2d 922, 923 [3d Dept 2000] [“reply papers are intended to address contentions raised in opposition to the motion and not to introduce new arguments in support of the motion[.]”].) If the movant fails to make a prima facie showing, the motion for summary judgment must be denied even if the nonmovant's papers are considered insufficient. (See Winegrad, 64 N.Y.2d at 853 ; see also Wilson v. Proctor's Theater & Arts Ctr., 223 A.D.2d 826 [3d Dept 1996].)
Here, Defendants met their initial burden of establishing that they are entitled to summary judgment. This is premised on the affidavit of Defendant Tracie which claims that Plaintiff was the cause of the accident when he backed out of his driveway into her lane of travel and she was unable to avoid the collision by swerving to avoid his vehicle. Defendants' rendition of the facts also supports a possible conclusion that Plaintiff's conduct was violative of Vehicle and Traffic Law §§§§ 1211 and 1143.
Once the movant has made such a showing, the burden shifts to the nonmoving party to produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact. (See Zuckerman, 49 N.Y.2d at 562 [“mere conclusions, expressions of hope or unsubstantiated allegations or asserts are insufficient.”].) “[I]n deciding a motion for summary judgment, the trial court must view all evidence in the light most favorable to the party against whom such judgment is sought and, where there is any doubt as to the existence of a triable issue of fact, it should deny the motion since the goal is issue finding rather than issue determination.” (Swartout v. Consolidated Rail Corp., 294 A.D.2d 785, 786 [3d Dept 2002] [citations omitted]; see also Oritz v. Varsity Holdings, LLC, 18 NY3d 335, 339 [2011] ; Greco v. Boyce, 262 A.D.2d 734, 734 [3d Dept 1999] [holding courts are “to view the evidence in light most favorable to the nonmoving party, affording that party the benefit of all reasonable inferences, and to ascertain whether a material, triable issue of fact exists.”].)
Plaintiff has raised a question of fact sufficient to defeat Defendants' motion for summary judgment. Most obvious to the Court is the speed at which Defendant Tracie was traveling. While she averred that she was traveling within the speed limit, Plaintiff's opposing affidavit boldly claimed she was traveling “like she was going 50–60 mph[.]” This was glaringly avoided in Defendants' Reply, which merely reaffirmed that she was not speeding and Plaintiff that there was no factual support in the record. But there is factual support in the record given that Plaintiff testified to this in his affidavit and he has personal knowledge of the happenings of this accident. Further, this argument is unavailing as Defendants moved prior to the conclusion of disclosure and depositions which limits what facts are in the available record.
Moreover, Plaintiff's expert also corroborated the issue of speed. In his report, he questioned Defendant Tracie's speed because the impact spun Plaintiff's vehicle around—Plaintiff even claims it was a full 180 degrees. Thus further creates a question of fact in Defendant Tracie's affidavit which claims Plaintiff drove back up his driveway after the collision, but he claims he was spun a full 180 degrees. While the Court agrees with Defendant that some opinions of Plaintiff's expert are not correct or feasible, Defendant cannot obtain summary judgment by pointing to holes in Plaintiff's proof nor are all of Plaintiff's expert's claims meritless. (DiBartolomeo, 73 AD3d at 1326 ; accord Dow, 46 AD3d at 1084.)
The Court's review of the photographs also raises issues of credibility and triable issues of fact. Both parties' description of the accident is a question of credibility for a jury. Defendant Tracie's description of the accident was that Plaintiff backed into the passenger side of her vehicle as she tried to swerve to avoid him; the Court has the impression that it was almost a t-bone-like accident. (Piracci Affirmation, Exhibit D [Tracie A. Short affidavit], ¶ 9.) However, Plaintiff paints the accident differently, claiming that it occurred as he backed out of his driveway and Defendant Tracie came around too quickly and collided with “the front end on her car.” (Garofalo Affirmation, Exhibit B (Samuel A. Decicco affidavit), ¶ 6.) The photographs submitted with this motion are not particularly good, as they are black and white and a little grainy. But the Court still can observe some of the damage to both vehicles which creates this question of fact.
For instance, Defendants' vehicle has damage to the front right panel before the wheel well and extending along the side fender panel and past the headlight then onto the bumper. There appears to be damage on the forward part of Defendants' bumper—not just the side. This is corroborated by the police report, wherein the vehicle 1 damage codes note the “point of impact” and “most damage” were to the front right of Defendants' vehicle, and not to the front passenger on the side fender.
Plaintiff's vehicle has damage to the back right panel after the wheel well and extending backwards onto the bumper; the rear lights appear to have been destroyed in the accident. The damage to Plaintiff's vehicle is not just the backward part of the bumper, such as if he backed directly into Defendant's passenger door, but also to the side fender indicating he was contacted with. This is corroborated by the police report which notes damage directly to that corner as the “point of impact” and “most damage.” The police report also notes damage to the side fender and back bumper.
Based on this review, the Court cannot make a determination who was the cause of the action. It is quite conceivable that reasonable minds could believe Defendant's vehicle (the front bumper) collided with Plaintiff's vehicle (the rear side panel) due to her excessive speed, just as it is equally conceivable that reasonable minds could believe Plaintiff unsafely backed out into Defendant Tracie's lane of travel. This also rebuts any claim that Plaintiff violated either Vehicle and Traffic Law. Given that Plaintiff's expert opined she has a 600 foot unobstructed view of Plaintiff's driveway and that Plaintiff claimed she was speeding, and in a light most favorable to Plaintiff who is afforded the benefit of every favorable inference, the Court cannot say that Defendants are entitled to summary judgment as a matter of law because there are triable questions of fact and credibility for jury determination. (Greco, 262 A.D.2d at 734 [holding courts are “to view the evidence in light most favorable to the nonmoving party, affording that party the benefit of all reasonable inferences”].)
Defendants' argument that the emergency doctrine applies was improperly raised for the first time in Defendants' Reply. (Potter, 216 A.D.2d at 775 ; N.A.S. Partnership, 271 A.D.2d at 923.) Notwithstanding, the argument that the emergency doctrine applies is insufficient to ameliorate the questions of fact. “The emergency doctrine relieves a driver from liability if he or she was faced with an emergency situation not of his or her own making and responded in a manner that was reasonable and prudent in the emergency context [.]” ' (Cahoon v. Frechette, 86 AD3d 774, 775 [3d Dept 2011], citing Rivera v. New York City Tr. Auth., 77 N.Y.2d 322, 327 [1991] ; accord Caristo v. Sanzone, 96 N.Y.2d 172, 174 [2001].) It is well-established by the courts that “[g]enerally, a jury must decide whether a driver's reaction to the emergency situation was reasonable or whether the driver could have done something to avoid a collision.” (Aloi v. County of Tompkins, 52 AD3d 1092, 1094 [3d Dept 2008], citing Quinones v. Community Action Commn. to Help the Economy, Inc., 46 AD3d 1326, 1326 [3d Dept 2007] ; see also Cancellaro v. Shults, 68 AD3d 1234 [3d Dept 2009], lv. denied 14 NY3d 706 [2010] [“Where a driver's actions in an emergency situation were reasonable is ordinarily a question of fact]”.)
However, in order “[t]o be granted summary judgment based on the emergency doctrine, a driver must establish as a matter of law that he or she did not contribute to the creation of the emergency situation....” (Cahoon, 86 AD3d at 775, citing Quinones, 46 AD3d at 1326.) Where, as here, there are claims that the defendant was traveling at excess speed, the courts have regularly denied summary judgment based on the emergency doctrine. (See Cahoon, 86 AD3d at 776 [finding a triable issues of fact whether the defendant's speed was reasonable and that “the jury could also conclude that [the defendant's] own unreasonable speed was what deprived him of sufficient time to avoid the collision, thereby preventing him from escaping liability under the emergency doctrine.”]; Quinones, 46 AD3d at 1326–27 [finding a question of fact as to whether the defendant contributed to the accident or could have avoided it through evasive action where the plaintiff claimed the defendant was traveling in excess of the speed limit even though the defendant testified that she was not]; see also Aloi, 52 AD3d at 1094 [finding question of fact as to whether the defendant “was operating his vehicle at a prudent speed considering the weather conditions, whether he did all he could to avoid the accident and whether he reacted as a reasonable person would given the circumstances.”].)
If the Third Department in Quinones found a question of fact as to the application of the emergency doctrine where the defendant testified she was not above the speed limit but the plaintiff testified that she was, then the Court here will similarly find a question of fact where the defendant avers she was within the speed limit and the plaintiff claims she was almost double the speed limit. Further given the accident reconstruction which indicated that speed could have been a factor, and viewing all evidence in a light most favorable to Plaintiff, an inference favorable to Plaintiff is apparent to the Court which creates a question of fact sufficient to defeat Defendants' motion for summary judgment based on the application of the emergency doctrine.
To the extent not specifically addressed above, the parties' remaining contentions have been examined and found to be lacking in merit or rendered academic.
Thereby, it is hereby
ORDERED that Defendants' motion is DENIED, and all other relief requested therein is denied in its entirety.
This constitutes the Decision and Order of the Court. Please note that a copy of this Decision and Order along with the original motion papers are being filed by Chambers with the County Clerk. The original Decision and Order is being returned to the prevailing party, to comply with CPLR R. 2220. Counsel is not relieved from the applicable provisions of this Rule with regard to filing, entry and Notice of Entry.