Opinion
01475/2014
09-27-2019
Maria FIGUEROA, Plaintiff, v. KEYSPAN CORPORATION, KeySpan Gas East Corporation, John. J. DiPrima, Palma Mariat Castro, Christopher Quintanilla, Roger U. Acosta, and Jose Sorto, Defendants.
PLTF'S ATTORNEYS: SIBEN & SIBEN, ESQS., 90 East Main Street, P.O. Box 5149, Bayshore, New York 11706 DEFT'S ATTORNEYS for Castro and Quintanilla: DODGE & MONROY, P.C., 175 Pinelawn Road, Ste 105, Melville, New York 11747 DEFT'S ATTORNEYS for Acosta and Sorto: RICHARD LAU & ASSOCIATES, 300 Jericho Quad, P. O. Box 9040, Jericho, New York 11753 DEFT'S ATTORNEYS for Keyspan Corp, Keyspan Gas East Corp. and DiPrima: HAMMILL O'BRIEN CROUTIER, 6851 Jericho Tpke, Ste 250, Syosset, New York 11791
PLTF'S ATTORNEYS: SIBEN & SIBEN, ESQS., 90 East Main Street, P.O. Box 5149, Bayshore, New York 11706
DEFT'S ATTORNEYS for Castro and Quintanilla: DODGE & MONROY, P.C., 175 Pinelawn Road, Ste 105, Melville, New York 11747
DEFT'S ATTORNEYS for Acosta and Sorto: RICHARD LAU & ASSOCIATES, 300 Jericho Quad, P. O. Box 9040, Jericho, New York 11753
DEFT'S ATTORNEYS for Keyspan Corp, Keyspan Gas East Corp. and DiPrima: HAMMILL O'BRIEN CROUTIER, 6851 Jericho Tpke, Ste 250, Syosset, New York 11791
Sanford Neil Berland, J.
Upon the reading and filing of the following papers in this matter: (1) Notice of Motion by defendants Keyspan Corporation, Keyspan Gas East Corporation and John J. DiPrima dated February 20, 2019, and supporting papers; (2) Affirmation in Opposition by plaintiff Maria Figueroa dated March 28, 2019, and supporting papers; (3) Affirmation in Opposition by plaintiff Loanis Robles dated March 8, 2019; (4) Affirmation in Opposition by plaintiff Vilma Villalobos De Guevara dated April 11, 2019; and (5) Affirmation in Reply by defendants Keyspan Corporation, Keyspan Gas East Corporation and John J. DiPrima dated April 15, 2019, it is
ORDERED , that motion for summary judgment of defendants Keyspan Corporation, Keyspan Gas East Corporation and John J. DiPrima is DENIED .
This action, along with three other actions with which it has been joined for purposes of discovery, involves a three-car motor vehicle collision that occurred on November 28, 2012, at the intersection of Route 111 and Brier Street in Central Islip, New York. It is now before the court on the motion of three of the seven defendants in the action brought by plaintiff Maria Figueroa - John J. DiPrima, Keyspan Corporation and Keyspan Gas East Corporation ("the Keyspan defendants"), the driver and owner(s), respectively, of the second vehicle involved in the collision - for summary judgment in their favor, dismissing the claims and cross-claims that have been asserted against them and "granting" their cross-claims against their co-defendants Maria Palma Castro and Christopher Quintanilla. It is undisputed that the sequence of collisions began when defendant Christopher Quintanilla, who was heading west on Brier Street in a vehicle owned by defendant Maria Palma Castro, attempted to make a left turn onto southbound Route 111 across the path of a truck owned by the Keyspan defendants and operated by defendant John DiPrima, which was proceeding north on Route 111. DiPrima did not see the Quintanilla-Castro vehicle crossing the road ahead of him in time to apply the truck's brakes but did attempt to steer it to the left. The Keyspan-DiPrima truck struck the Quintanilla-Castro vehicle and then continued into the southbound lane of Route 111. The Sorto-Acosta vehicle was traveling south on Route 111 at that time. Sorto saw the Quintanilla-Castro vehicle enter onto Route 111 and collide with the Keyspan truck, and he heavily applied the brakes of the vehicle he was driving, but he could not bring it to a stop in time to prevent it from being struck by both of the other vehicles. It is also undisputed that a stop sign controlled traffic on Brier Street crossing Route 111 and that no traffic devices controlled traffic on Route 111. Plaintiff Loanis Robles (Action 1) was a passenger in the Quintanilla-Castro vehicle, and plaintiffs Maria Figueroa (Action 2), Maria Nolasco (Action 3) and Vilma Villalobos De Guevara (Action 4) were all passengers in the Sorto-Acosta vehicle. Each of the plaintiffs alleges that she sustained serious injuries as a result of the accident.
A stipulation discontinuing the action against National Grid Electric Services, LLC, substituting Keyspan Gas East Corporation in its place and amending the caption accordingly was filed on May 9, 2014.
As grounds for their motion, DiPrima and the Keyspan defendants maintain that the accident was entirely the result of negligence on the part of defendant Quintanilla. They contend that DiPrima was operating the Keyspan vehicle in a safe and reasonable manner at the time of the collision; that Quintanilla made an improper left turn while failing to yield the right of way, creating an emergency situation that made the collision between the Quintanilla and Keyspan vehicles unavoidable; and that Quintanilla's negligence was, therefore, the sole proximate cause of the plaintiffs' injuries . In support of their motion, defendants offer, inter alia , their attorney's affirmations, the deposition testimony of defendant DiPrima and Sorto and plaintiffs Figueroa and Robles, and a certified police report. Plaintiffs Figueroa and Robles oppose the motion, arguing that a triable issue exists as to whether DiPrima looked down and away from the roadway thereby failing to see the Quintanilla vehicle in time to apply his brakes and possibly avoid the impact with the Quintanilla vehicle. In opposition to defendants' motion, plaintiff Figueroa offers, inter alia , her attorney's affirmation, the deposition testimony of defendants DiPrima and Sorto and plaintiffs Figueroa, Robles and Nolasco, and a split-screen audio-video recording from cameras mounted in the cab of the Keyspan truck and focused both on DiPrima and on the roadway ahead. In opposition to the motion, plaintiff Robles relies on the exhibits attach to defendants' motion papers.
The moving defendants note that defendant Quintanilla was an unlicensed driver at the time of the accident. The fact that a driver is not licensed to drive is not material to the issue of negligence. The test is the manner in which a vehicle is operated, not whether the driver was licensed (see Dance v. Southampton , 95 AD2d 442, 467 NYS2d 203 [2d Dept 1983] ; Almonte v. Marsha Operating Corp. , 265 AD2d 357, 696 NYS2d 484 [2d Dept 1999] ; Dalal v. New York , 262 AD2d 596, 692 NYS2d 468 [2d Dept 1999] ).
Defendant DiPrima testified that he was proceeding north on Route 111, traveling at 40 miles per hour, when he saw the Quintanilla vehicle, which was traveling west on Brier Street, pull out in front of his vehicle, attempting to make a left turn onto southbound Route 111. He testified that he had no time to apply his brakes but did swerve to the left. The front of his truck hit the entire driver's side of the Quintanilla vehicle. The video recording made with a camera that had been placed inside the cab of the Keyspan truck shows DiPrima looking downward prior to the collision between the DiPrima and Quintanilla vehicles. Defendant Sorto testified that he was traveling south on Route 111 at 30 miles per hour. He testified that he observed the Quintanilla vehicle stopped on Brier Street before moving into the intersection. He testified that when he saw the collision between the DiPrima and Quintanilla vehicles, he applied his brakes with "heavy pressure" and honked his horn, but did not have time to swerve his vehicle. He testified that after the impact between the DiPrima and Quintanilla vehicles, the Quintanilla vehicle struck the Sorto-Acosta vehicle's rear driver's side quarter panel, which caused his vehicle to spin around, causing the front part of his vehicle to strike, or to be struck by, the rear of the DiPrima vehicle. It is undisputed that the speed limit on the relevant portion of Route 111 was 40 miles per hour.
This court, by its Decisions and Orders dated April 24, 2019, granted summary judgment in favor of defendants Sorto and Acosta, dismissing all claims and counter-claims against them in all three actions.
It is well settled 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 eliminate any material issues of fact from the case. Before summary judgment may be granted, it must clearly appear that no material and triable issue of fact is presented (see Alvarez v. Prospect Hosp. , 68 NY2d 320, 324, 508 NYS2d 923 [1986] ; Zuckerman v. City of New York , 49 NY2d 557, 427 NYS2d 595 [1980] ). The movant has the initial burden of proving entitlement to summary judgment ( Winegrad v. New York Univ. Med. Ctr. , 64 NY2d 851, 487 NYS2d 316 [1985] ). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers ( Winegrad v. New York Univ. Med. Ctr. , supra ). Once such proof has been offered, the burden then shifts to the opposing party, who, in order to defeat the motion for summary judgment, must proffer evidence in admissible form...and must "show facts sufficient to require a trial of any issue of fact" ( CPLR 3212 [b] ; see Zuckerman v. City of New York , 49 NY2d 557, 427 NYS2d 595 [1980] ). As the court's function on such a motion is to determine whether issues of fact exist, not to resolve issues of fact or to determine matters of credibility, the facts alleged by the opposing party and all inferences that may be drawn from them are to be accepted as true (see Roth v. Barreto , 289 AD2d 557, 735 NYS2d 197 [2d Dept 2001] ; O'Neill v. Fishkill , 134 AD2d 487, 521 NYS2d 272 [2d Dept 1987] ).
It is undisputed that the DiPrima vehicle was westbound on Brier Street, and had a stop sign on Brier Street at its intersection of Route 111. The moving defendants highlight the following deposition testimony in their motion: Plaintiff Figueroa testified that she saw the Quintanilla vehicle on Brier Street prior to the accident in the process of making a left turn. Defendant Sorto testified that the Quintanilla vehicle had already started to drive onto Route 111 in order to make a left turn at the time of the accident. Plaintiff Robles testified that defendant Quintanilla was intending to make a left turn. She also testified that while on Brier Street at the stop sign, Quintanilla was waiting for the DiPrima vehicle to pass, but the accident occurred before the DiPrima vehicle passed. She testified that the vehicle had started to turn when the accident occurred and was already in the lane of travel of the truck at the time of the accident. DiPrima testified that he first saw the vehicle when it pulled out in front of him. DiPrima testified that he was driving the speed limit and the Quintanilla vehicle was ten to twelve feet in front of him. DiPrima testified that the vehicle operated by Quintanilla was already moving and in the process of crossing Route 111 when it was first seen by DiPrima. DiPrima testified that he swerved left to try and avoid impact but there was no time to apply the brakes.
In moving for summary judgment, defendants' counsel argues that the parties' testimony establishes that Quintanilla made an improper left turn while failing to yield to the right of way, was the sole proximate cause of the accident, and created an emergency situation that DiPrima could not avoid. A failure to comply with the Vehicle and Traffic Law constitutes negligence as a matter of law ( Colpan v. Allied Cent. Ambulette, Inc. , 97 AD3d 776, 949 NYS2d 124 [2d Dept 2012] ; Vainer v. DiSalvo , 79 AD3d 1023, 914 NYS2d 236 [2d Dept 2010] ). 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 also McPherson v. Chanzeb , 123 AD3d 1098, 999 NYS2d 521 [2d Dept 2014] ; Barbato v. Maloney , 94 AD3d 1028, 943 NYS2d 204 [2d Dept 2012], Yelder v. Walters , 64 AD3d 762, 883 NYS2d 290 [2d Dept 2009] ). A driver who fails to stop at a stop sign is negligent as a matter of law if it is established that he or she was faced with a stop sign and failed to yield (see Breen v. Seibert , 123 AD3d 963, 999 NYS2d 176 [2d Dept 2014] ; Bennett v. Granata , 118 AD3d 652, 987 NYS2d 424 [2d Dept 2014] ). When a driver is confronted with an emergency that is not of his own making and without an opportunity for deliberation, he or she is "not obligated to exercise his best judgment and an error of judgment on his part is not to be considered negligence" ( Tenenbaum v. Martin , 131 AD2d 660, 661, 516 NYS2d 741 [2d Dept 1987] ; see Palmer v. Rouse , 232 AD2d 909, 649 NYS2d 76 [3d Dept 1996] ; Mangano v. NYC Housing Authority , 218 AD2d 787, 631 NYS2d 54 [2d Dept 1995] ).
In opposition to the motion, plaintiffs Figueroa, Villalobos De Guevara and Robles argue that there is evidence that defendant DiPrima contributed to the subject accident. In support of her opposition to the motion, plaintiff Figueroa proffers a split-screen audio-video recording from cameras mounted in the cab of the Keyspan truck. The screen on the left shows the view from the front windshield focused on DiPrima. The screen on the right shows the roadway ahead of the Keyspan vehicle. The video shows, on the left-hand screen, DiPrima looking down for more than 3.5 seconds before looking up and taking evasive action by attempting to turn towards the left approximately .5 seconds before the sound of the collision between the Keyspan and Quintanilla vehicles is heard. The right-hand screen shows the front end of the Quintanilla vehicle rolling past the stop sign on Brier Street and proceeding into the intersection while DiPrima is still looking down. Maria Figueroa, a passenger in the Sorto-Acosta vehicle, testified that she observed the Quintanilla vehicle stopped on Brier Street at the intersection prior to the accident. Defendant Sorto testified that when he first saw the Quintanilla vehicle, it was stopped on Brier Street at the intersection, and two to four seconds elapsed between when he saw the Quintanilla vehicle enter the intersection to make a left turn and the impact between the Keyspan and Quintanilla vehicles. Plaintiff Robles, a passenger in the Quintanilla vehicle, testified that the Quintanilla vehicle was fully stopped on Brier Street when it was impacted by the Keyspan vehicle. Plaintiff Maria Nolasco, a passenger in the Sorto vehicle, testified that the Keyspan vehicle was traveling at a high rate of speed.
Arguably, defendants' submissions are sufficient to show a prima facie entitlement to summary judgment, to the extent that the evidence proffered by them establishes that DiPrima had the right-of-way and that he was entitled to assume that defendant Quintanilla would obey the stop sign controlling his direction of traffic and yield the right-of-way (see Lara v. Faulisi , 142 AD3d 1052, 39 NYS3d 172 [2d Dept 2016] ; Lilaj v. Ferentinos , 126 AD3d 947, 7 NYS3d 172 [2d Dept 2015] ). However, based upon the video recording and the testimony presented, clear issues of fact exist as to whether a failure by DiPrima to exercise due care contributed to the accident. It is well established that "drivers have a duty to see what should be seen and to exercise reasonable care under the circumstances to avoid an accident" (see Johnson v. Phillips , 261 AD2d 269, 690 NYS2d 545 [1st Dept 1999] ). A driver is bound by a duty to see what is there to be seen through the proper use of his or her senses and is negligent in failing to do so (see Estate of Cook v. Gomez , 138 AD3d 675, 30 NYS3d 148 [2d Dept 2016] citing Lu Yuan Yang v. Howsal Cab Corp. , 106 AD3d 1055, 966 NYS2d 167 [2d Dept 2013] ). The proffered recording shows that DiPrima was looking down at the time that the Quintanilla vehicle was entering the intersection, and the testimony indicates that the Quintanilla vehicle stopped at the stop sign on Brier Street before attempting to make a left turn onto Route 111. Clearly, issues of fact exist as to whether negligence on the part of DiPrima was a proximate cause of the accident and of Figueroa's injuries. Accordingly, defendant DiPrima's and the Keyspan defendants' motion for summary judgment is denied .
To the extent the moving defendants are seeking partial summary judgment in their favor on the issue of liability on their cross-claims against Quintanilla and Castro, their motion is not ripe as there has been no determination of the moving parties' liability and there may never be such a determination. See Lilienfield v. Becker , 153 Misc 2d 84, 85 [Civ Ct 1992], cited by Capriglione v. Natl. Cleaning Contractors, Inc. , 211 AD2d 608, 608-09 [2d Dept 1995]. See generally Hesse v. Speece , 204 AD2d 514, 514 [2d Dept 1994].
The foregoing constitutes the decision and order of the court.