Opinion
Index 625551/2018E
01-08-2020
Billy J. Donato, Plaintiff, v. Amadeo S. Pasciuta, Phyllis R. Pasciuta and V.F. Severino, Defendants. Vincent Severino, Jr., Plaintiff, v. Amadeo S. Pasciuta, Phyllis R. Pasciuta, Defendants.
Attorney for Plaintiff: Joseph Farlado, Esq. Attorney for Defendants Amadeo S. Pasciuta and Phyllis R. Pasciuta: Russo & Tambasco Attorney for Defendant V.F. Severino: Picciano & Scahill, P.C. Attorney for Defendant Vincent Severino: Law Offices of Matthew A. Sosnik, Esq.
Unpublished Opinion
Attorney for Plaintiff: Joseph Farlado, Esq.
Attorney for Defendants Amadeo S. Pasciuta and Phyllis R. Pasciuta: Russo & Tambasco
Attorney for Defendant V.F. Severino: Picciano & Scahill, P.C.
Attorney for Defendant Vincent Severino: Law Offices of Matthew A. Sosnik, Esq.
HON. WILLIAM B. REBOLINI, J.S.C.
Upon the E-file document list numbered 25 to 54 read on the application by plaintiff for an order pursuant to CPLR 3212 granting him partial summary judgment as against defendants Amadeo S. Pasciuta, Phyllis R. Pasciuta, and V.F. Severino, on the issue of liability, and on the application of defendant V.F. Severino for summary judgment pursuant to CPLR 3212 dismissing the complaint and all cross-claims as against him; it is
ORDERED that the motions (Motion Sequence 002 and Motion Sequence 003) are consolidated for purposes of a determination herein; and it is further
ORDERED the plaintiffs motion for summary judgment on the issue of liability as against all defendants is granted; and it is further
ORDERED that the cross-motion for summary judgment on the issue of liability by defendant V.F. Severino is denied.
This action seeking damages for personal injuries allegedly sustained by plaintiff was commenced by the filing of a summons and complaint on December 31, 2018. The complaint alleges that defendants Amadeo S. Pasciuta ("A. Pasciuta"), Phyllis R. Pasciuta ("P. Pasciuta") (collectively the "Pasciuta defendants"), and V.F. Severino ("Severino") were negligent in causing a motor vehicle accident on February 21, 2017 at approximately 11:00 a.m. at the intersection of 12th Avenue and 13th Street, in West Babylon, Suffolk County, New York. Plaintiff alleges that he was an innocent passenger in the Severino vehicle when it became involved in a collision with the Pasciuta vehicle, which resulted from the Pasciuta vehicle failing to stop at a stop sign located on 12th Avenue. Issue was joined by all defendants and the depositions of the parties have been held. Plaintiff now moves for summary judgment against defendants on the issue of liability. Defendant Severino cross-moves for summary judgment dismissing the complaint and cross-claims asserted against him. The Pasciuta defendants oppose the motions. Defendant Severino replies.
It is well settled that a party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issue of fact (see Alvarez v. Prospect Hasp., 68 N.Y.2d 320, 508 N.Y.S.2d 923 [1986]; Friends of Animals v. Associated Fur Mfrs., 46 N.Y.2d 1065, 1067, 416 N.Y.S.2d 790 [1979]). The failure of the moving party to make a prima facie showing requires the denial of the motion regardless of the sufficiency of the opposing papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 487 N.Y.S.2d 316 [1985]). However, once the movant has made the requisite showing, the burden then shifts to the party opposing the motion to produce evidentiary proof in admissible form sufficient to require a trial on any material issue of fact (Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595 [1980]. To defeat a motion for summary judgment, a party opposing such motion must lay bare his proof in evidentiary form; conclusory allegations are insufficient to raise a triable issue of fact (see Friends of Animals, Inc. v. Associated Fur Mfrs., 46 N.Y.2d 1065, 416 N.Y.S.2d 790; Burns v. City of Poughkeepsie, 293 A.D.2d 435, 739 N.Y.S.2d 458 [2d Dept 2002]). In deciding the motion the Court must view all evidence in the light most favorable to the nonmoving party (Nomura, supra; see also Ortiz v. Varsity Holdings, LLC, 18 N.Y.3d 335, 339, 937 N.Y.S.2d 157 [2011]) A motion for summary judgment should be denied where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility (see Chimbo v. Bolivar, 142 A.D.3d 944, 37 N.Y.S.3d 339 [2d Dept 2016]; Benetatos v. Comerford, 78 A.D.3d 730, 911 N.Y.S.2d 155 [2d Dept. 2010]).
"A plaintiff in a negligence action moving for summary judgment on the issue of liability must establish, prima facie, that the defendant breached a duty owed to the plaintiff and that the defendant's negligence was a proximate cause of the alleged injuries" (Tsyganash v. Auto Mall Fleet Mgmt., Inc., 163 A.D.3d 1033, 83 N.Y.S.3d 74 [2d Dept. 2018]). A violation of a standard of care imposed by the Vehicle and Traffic Law constitutes negligence per se (Lebron v. Mensah, 161 A.D.3d 972, 76 N.Y.S.3d 219 [2d Dept. 2018]; Barbaruolo v. Difede, 73 A.D.3d 957, 900 N.Y.S.2d 671 [2d Dept 2010]; Ciatto v. Lieberman, 266 A.D.2d 494, 698 N.Y.S.2d 54 [2d Dept. 1999]; see also Barbieri v. Vokoun, 72 A.D.3d 853, 856, 900 N.Y.S.2d 315 [2d Dept. 2010]; Smith v. State of New York, 121 A.D.3d 1358, 1358-59, 955 N.Y.S.2d 329 [3d Dept. 2014]. Further, a driver with the right of way is entitled to anticipate that other motorists will obey traffic laws that require them to yield the right of way (see Lebron v. Mensah, 161 A.D.3d 972, 76 N.Y.S.3d 219 [2d Dept. 2018]; Bullock v. Calabretta, 119 A.D.3d 884 [2d Dept 2014]; Kucar v. Town of Huntington, 81 A.D.3d 784, 917 N.Y.S.2d 646 [2d Dept 2011]; Todd v Godek, 71 A.D.3d 872 [2d Dept 2010] Kann v. Maggies Paratransit Corp., 63 A.D.3d 792, 882 N.Y.S.2d 129 [2d Dept 2009]; Berner v. Koegel, 31 A.D.3d 591, 819 N.Y.S.2d 89 [2d Dept 2006]; Gabler v. Marly Bldg. Supply Corp., 27 A.D.3d 519, 813 N.Y.S.2d 120 [2d Dept 2006]). In addition, a driver is negligent when an accident occurs because the driver failed to see that which through proper use of the driver's senses he or she should have seen (see Laino v. Lucchese, 35 A.D.3d 672, 827 NYS2D 249 [2d Dept 2006]; Berner v. Koegel, 31 A.D.3d 591, 819 N.Y.S.2d 89 [2d Dept 2006]; Bongiovi v. Hoffman, 18 A.D.3d 686, 795 N.Y.S.2d 354 [2d Dept 2005]). However, "a driver who has the right-of-way has a duty to exercise reasonable care to avoid a collision with another vehicle" (Gause v. Martinez, 91 A.D.3d 595, 936 N.Y.S.2d 272 [2d Dept. 2012] quoting Todd v. Godek, 71 A.D.3d 872, 895 N.Y.S.2d 861 [2d Dept. 2010]; Bonilla v. Calabria, 80 A.D.3d 720 [2d Dept 2011]; Gardner v. Smith, 63 A.D.3d 783 [2d Dept 2009]; Cox v Nunez, 23 A.D.3d 427 [2d Dept 2005]). The question of whether the defendant driver stopped at the stop sign is not dispositive, where it is established that the defendant driver failed to yield the right of way (Fuentes v. City of New York, 146 A.D.3d 936, 45 N.Y.S.3d 562 [2d Dept. 2017]).
There can be more than one proximate cause of an accident and the issue of comparative negligence is generally a question of fact for the jury to decide (see Bullock v. Calabretta, 119 A.D.3d 884, 989 N.Y.S.2d 862 [2d Dept. 2014]; Bonilla v. Calabria, 80 A.D.3d 720 [2d Dept 2011]; Todd v. Godek, 71 A.D.3d 872, 895 N.Y.S.2d 861 [2d Dept. 2010]). The fact that a party violated the Vehicle and Traffic Law would not preclude a finding that comparative negligence by another party contributed to the accident (see Gardner v. Smith, 63 A.D.3d 783 [2d Dept 2009; Cox v. Nunez, 23 A.D.3d 427 [2d Dept 2005]). Notwithstanding, a plaintiff need not prove that he or she was free from comparative fault in order to establish his or her prima facie entitlement to summary judgment (see Rodriguez v. City of New York, 31 N.Y.3d 312, 76 N.Y.S.3d 898 [2018]; Edgerton v. City of New York, 160 A.D.3d 809, 74 N.Y.S.3d 617 [2d Dept 2018]). A plaintiffs right as an innocent passenger to summary judgment on the issue of liability is not barred or restricted by any potential issue of comparative fault as between the owners and operators of the two vehicles involved in the accident . (see Phillip v. D & D Carting Co., Inc., 136 A.D.3d 18, 22 N.Y.S.3d 75 [2d Dept. 2015]; Rodriguez v. Farrell, 115 A.D.3d 929, 983 N.Y.S.2d 68 [2d Dept. 2014]; Medina v. Rodriguez, 92 A.D.3d 850, 939 N.Y.S.2d 514 [2d Dept. 2012]).
Here, there is no dispute that plaintiff is an innocent passenger who submitted sufficient evidence that the accident occurred as the result of the negligence of defendants without any negligence on his part contributing thereto (see Johnson v. Braun, 120 A.D.3d 765, 991 N.Y.S.2d 351 [2d Dept. 2014]; Mughal v. Rajput, 106 A.D.3d 886, 965 N.Y.S.2d 545 [2d Dept. 2013]).
The burden then shifted to the Pasciuta defendants who have not raised a triable issue of fact through the submission of their attorney's affirmation (see Acheson v. Shepherd, 27 A.D.3d 596, 811 N.Y.S.2d 781 [2d Dept. 2006]); Levitt v. County of Suffolk, 145 A.D.2d 414, 525 N.Y.S.2d 618 [2d Dept. 1988]). Thus, the Court concludes that based upon the admissible evidence of plaintiff, which has not been refuted by any admissible evidence from defendants, the negligence of the defendants was the proximate cause of the accident. With regard to the cross-motion of defendant Severino, no evidence was presented therein that plaintiff, as an innocent passenger, was negligent in any respect.
The cross-motion of defendant Severino addresses liability as between the Pasciuta defendants and defendant Severino. Plaintiff testified that he did not see the Pasciuta vehicle prior to the accident as he was busy looking at his cellphone. Defendant Severino alleges that there was no stop sign on 13th Street at the location where his vehicle was struck, that the Pasciuta vehicle proceeded through the intersection without stopping at the traffic control device, and that the Pasciuta vehicle otherwise did not yield to the Severino vehicle, which had the right-of-way.
"Negligence cases by their very nature do not usually lend themselves to summary judgment, since often, even if all parties are in agreement as to the underlying facts, the very question of negligence is itself a question for jury determination" (Ugarriza v. Schmieder, 46 N.Y.2d 471, 474, 414 N.Y.S.2d 304 [1979]; Davis v. Commack Hotel, LLC, ___A.D.3d___, ___N.Y.S.3d___, 2019 WL 2844549 [2d Dept. 2019]; see also Harris v. Manhattan & Bronx Surface Tr. Operating Auth., 138 A.D.2d 56, 57, 529 N.Y.S.2d 290 [1st Dept. 1988]). Notwithstanding, a violation of a standard of care imposed by the Vehicle and Traffic Law constitutes negligence per se (Lebron v. Mensah, 161 A.D.3d 972, 76 N.Y.S.3d 219 [2d Dept. 2018]; Barbaruolo v. Difede, 73 A.D.3d 957, 900 N.Y.S.2d 671 [2d Dept. 2010]; Ciatto v. Lieberman, 266 A.D.2d 494, 698 N.Y.S.2d 54 [2d Dept. 1999]; see also Barbieri v. Vokoun, 72 A.D.3d 853, 856, 900 N.Y.S.2d 315 [2d Dept. 2010]; Smith v. State of New York, 121 A.D.3d 1358, 1358-59, 955 N.Y.S.2d 329 [3d Dept. 2014]. Vehicle and Traffic Law § 1172 (a) provides, in relevant part, that an operator of any vehicle approaching a stop sign shall stop "at the point nearest the intersecting roadway where the driver has a view of the approaching traffic on the intersecting roadway," and that the driver must comply with Vehicle and Traffic Law § 1142 before proceeding into the intersection. Further, Vehicle and Traffic Law § 1142 (a) requires a driver of a motor vehicle approaching a stop sign to stop and yield the right of way to any vehicle that has entered the intersection or is approaching so closely as to constitute an immediate hazard (see Willis v Finks, 7 A.D.3d 519, 775 N.Y.S.2d 587 [2d Dept. 2004]; Szczotka v Adler, 291 A.D.2d 444, 737 N.Y.S.2d 121 [2d Dept. 2002]). A driver who fails to yield the right of way in violation of Vehicle and Traffic Law § 1142 (a) is negligent as a matter of law (see (Czarnecki v. Corso, 81 A.D.3d 774, 775, 916 N.Y.S.2d 828 [2d Dept. 2011], quoting Thompson v. Schmitt, 74 A.D.3d 789, 789, 902 N.Y.S.2d 606); Goemans v. County of Suffolk, 57 A.D.3d 478, 868 N.Y.S.2d 753 [2d Dept. 2008]; Maliza v. Puerto-Rican Transp. Corp., 50 A.D.3d 650, 854 N.Y.S.2d 763 [2d Dept. 2008]; Exime v. Williams, 45 A.D.3d 633, 845 N.Y.S.2d 450 [2d Dept. 2007]). Moreover, "a driver is required to see what is there to be seen . . . and a driver who has the right of way is entitled to anticipate that the other motorist will obey the traffic law requiring him or her to yield" (Duran v. Simon, 83 A.D.3d 654, 919 N.Y.S.2d 895 [2d Dept. 2011], citing Laino v. Lucchese, 35 A.D.3d 672, 827 N.Y.S.2d 249 [2d Dept. 2006]).
Although a police report generally is admissible as a business record, statements contained in the report concerning the cause of an accident constitute inadmissible hearsay unless the reporting officer witnessed the accident, the reporting officer is qualified as an expert, or the statements meet some other exception to the hearsay rule (see Memenza v. Cole, 131 A.D.3d 1020, 16 N.Y.S.3d 287 [2d Dept. 2015]; Sanchez v. Steenson, 101 A.D.3d 982, 957 N.Y.S.2d 239 [2d Dept. 2012]; Cheul Soo Rang v. Violante, 60 A.D.3d 991, 877 N.Y.S.2d 354 [2d Dept. 2009]; Roman v. Cabrera, 113 A.D.3d 541 979 N.Y.S.2d 310 [2d Dept. 2014]; Shaw v. Rosha Enters., Inc., 129 A.D.3d 1574, 1575, 12 N.Y.S.3d 441 [4th Dept. 2015]; Brady v. Casilio, 93 A.D.3d 1190, 1191, 940 N.Y.S.2d 396 [4th Dept. 2012]). It is undisputed that the reporting officer did not observe the accident. Thus the conclusions made by the police officer as to the cause of the accident are inadmissible hearsay.
Nevertheless, defendant Severino established prima facie his entitlement, to summary judgment on the issue of liability, through evidence he presented that the Pasciuta vehicle, which had a stop sign, negligently drove into the intersection without yielding the right of way to defendant Severino and proceeded into the intersection without observing Severino's vehicle, thereby striking it (see Fuertes v. City of New York, 146 A.D.3d 936, 45 N.Y.S.3d 562 [2d Dept. 2017]; Hatton v. Lara, 142 A.D.3d 1047, 37 N.Y.S.3d 604 [2d Dept. 2016]; Briggs v. Russo, 98 A.D.3d 547, 949 N.Y.S.2d 719 [2d Dept 2012]; Batts v Page, 51 A.D.3d 833, 858 N.Y.S.2d 748 [2d Dept. 2008]; Exime v. Williams 45 A.D.3d 633, 845 N.Y.S.2d 450 [2d Dept. 2007]; Hull v. Spagnoli, 44 A.D.3d 1007, 844 N.Y.S.2d 416 [2d Dept. 2007]; McCain v. Larosa, 41 A.D.3d 792, 838 N.Y.S.2d 663 [2d Dept. 2007]; Morgan v. Hachmann, 9 A.D.3d 400, 780 N.Y.S.2d 33 [2d Dept. 2004]; McKeaveney v. Reiffert, 268 A.D.2d 411, 702 N.Y.S.2d 318 [2d Dept. 2000]).
Having made the requisite prima facie showing of entitlement to summary judgment on liability the burden shifted to the Pasciuta defendants to raise a triable issue of fact (see Kerolle v. Nicholson, 172 A.D.3d 1187, 101 N.Y.S.3d 387 [2d Dept. 2019]; Yu Mei Liu v. Weihong Liu, 163 A.D.3d 611 81 N.Y.S.3d 75 [2d Dept. 2018]; see also Bene v. Dalessio, 135 A.D.3d 679, 22 N.Y.S.3d 237 [2d Dept 2016]- Cortes v. Whelan, 83 A.D.3d 763, 922 N.Y.S.2d 419 [2d Dept. 2011]; Balducci v Velasquez 92 A.D.3d 626, 938 N.Y.S.2d 178 [2d Dept. 2012]). Here, defendant A. Pasciuta testified during his deposition that he was halfway through the intersection when the back passenger side of his vehicle was struck by the Severino vehicle, causing the Pasciuta vehicle to flip over. This testimony, together with the evidence regarding the point of impact to the vehicles, including the police report which is admissible for this purpose, and the differing versions of how the accident occurred, create questions of fact as to which vehicle was in the intersection first, what caused the accident, and the fault of the respective drivers (Piazza v. Cline, 161 A.D.3d 1113, 76 N.Y.S.3d 633 [2d Dept 2018]; Wilson v. Rosedom, 82 A.D.3d 970, 919 N.Y.S.2d 59 [2d Dept. 2011]; Todd v. Godek, 71 A.D.3d 872, 895 N.Y.S.2d 861 [2d Dept. 2010]. Indeed, a driver who has the right of way is still obligated to see that which is there to be seen and take due care to avoid an accident with a vehicle already in the intersection (see Jeong Sook Lee-Son v. Doe, 170 A.D.3d 973, 96 N.Y.S.3d 302 [2d Dept. 2019]; Todd v. Godek, 71 A.D.3d 872, 895 N.Y.S.2d 861 [2d Dept. 2010]). These issues of fact raised by the Pasciuta defendants, coupled with inherent issues of credibility, warrant a denial of defendant Severino's motion for summary judgment on liability (see Piazza v. Cline, 161 A.D.3d 1113, 76 N.Y.S.3d 633 [2d Dept. 2018]; Goulet v. Anastasio, 148 A.D.3d 783, 48 N.Y.S.3d 731 [2d Dept. 2017]; Wesolowski v. St. Francis Hosp., 108 A.D.3d 525, 526, 968 N.Y.S.2d 181 [2d Dept. 2013]; Bond v. DeMasco, 84 A.D.3d 1292, 1293, 923 N.Y.S.2d 902 [2d Dept. 2011]; Gardner v. Cason, Inc., 82 A.D.3d 930, 931, 918 N.Y.S.2d 769 [2d Dept. 2011]; Nuziale v. Paper Transport of Green Bay Inc., 39 A.D.3d 833, 835 N.Y.S.2d 316 [2d Dept. 2007]; Munter v. Hubert, 34 A.D.3d 544, 825 N.Y.S.2d 490 [2d Dept. 2006]; Nicklas v. Tedlen Realty Corp., 305 A.D.2d 385, 759 N.Y.S.2d 171 [2d Dept. 2003]; see also Myers v. FIR Cab Corp., 64 N.Y.2d 806, 486 N.Y.S.2d 922 [ 1985]; Lowhar-Lewis v. Metropolitan Transit Auth., 97 A.D.3d 728, 948 N.Y.S.2d 667 [2d Dept. 2012]).
Accordingly, plaintiff s motion for summary judgment on liability is granted and the motion by defendant Severino for summary judgment in his favor on the issue of liability is denied.