Opinion
Index EF003020-2016
03-30-2018
MARIBEL GARCIA and GERALDO ALTAMIRANO, Plaintiffs, v. ENMA C. SOTO and ROBERT SULLIVAN, Defendants.
Schneider Law Offices, PLLC Attorneys for Plaintiffs Wilson, Bave, Conboy, Cozza &, Couzens, P.C. Attorneys for Defendant Enma C. Soto Law Offices of John Trop Attorneys for Defendant Robert L. Sullivan Dreyer Law Offices, PLLC Attorneys for Soto as Plaintiff in Compaction Action, Index No. 4052/2016
Unpublished Opinion
Motion Date: 01/31/2018
Sequence No. 2
Schneider Law Offices, PLLC Attorneys for Plaintiffs
Wilson, Bave, Conboy, Cozza &, Couzens, P.C. Attorneys for Defendant Enma C. Soto
Law Offices of John Trop Attorneys for Defendant Robert L. Sullivan
Dreyer Law Offices, PLLC Attorneys for Soto as Plaintiff in Compaction Action, Index No. 4052/2016
DECISION AND ORDER
SANDRA B. SCIORTINO, JUDGE
The following papers numbered 1 to 16 were read on this motion by defendant Enma C. Soto for summary judgment:
PAPERS
NUMBERED
Notice of Motion I Affirmation (Bave) / Exhibits A - I / Memorandum of Law
1-12
Plaintiffs' Affirmation in Opposition (Schneider)
13
Co-Defendant's Affirmation in Opposition (Gatzambide)
14
Affirmation in Reply to Plaintiffs' 0ppositon (Bave)
15
Affirmation in Reply to Co-Defendants' Opposition (Bave)
16
Upon the foregoing papers, the motion is granted.
This action arises out of a motor vehicle accident which occurred on August 6, 2015, at the intersection of Robinson Avenue and First Street, in Newburgh, Orange County. On that date, plaintiff Garcia was a passenger in a vehicle owned and operated by defendant Soto. As Soto attempted to cross the intersection, traveling east on First Street, her vehicle came into contact with a vehicle owned and operated by defendant Sullivan.
At her deposition, defendant Soto testified that she had been stopped at a red light at the intersection for approximately 40 seconds. When the light turned green, she waited a few seconds and then proceeded slowly through the intersection. As she traveled across the intersection at a speed less than ten miles per hour, she saw the Sullivan vehicle, but anticipated that it would stop at the red light. The Sullivan vehicle, instead, ran the red light, and struck her vehicle.
At his deposition, defendant Sullivan testified that he was traveling north on Robinson Avenue and did not see a traffic signal as he approached the intersection with First Street. He had been through the intersection several times before, but never noticed the traffic signal. There was nothing preventing him from looking up at the traffic signal on the date of the accident.
Motion for Summary Judgment
By Notice of Motion filed on January 11, 2018, Soto seeks summary judgment on the ground that she was not negligent in the operation of her vehicle. She contends that Sullivan's negligence, in violating Vehicle and Traffic Law§ 1111(d) by entering the intersection against a red traffic light, was the sole cause of the accident. Soto further contends that she was entitled to anticipate that Sullivan would obey the traffic signal and yield the right of way. She thus concludes that she is entitled to summary judgment on the issue of liability.
In opposition, plaintiffs assert that Sullivan disputed traveling through a red light and denied causing the accident. Plaintiffs thus contend that issues of fact preclude summary judgment. Defendant Sullivan advances the same argument, and further contends that Soto's inability to estimate her own rate of speed leaves unresolved issues of fact as to her comparative negligence. Finally, Sullivan contends that, when both drivers claim to have had a green light, summary judgment must be denied.
In reply, Soto points out that Sullivan did not claim he had a green light. Rather, he admitted to being unaware that the intersection was controlled by a traffic signal. His conclusory assertion that he did not cause the accident is insufficient to raise a triable issue of fact. Further, as Soto testified that she waited for a green light, and then proceeded through the intersection at a speed of less than ten miles per hour, there is no evidence that she was negligent in the operation of her vehicle.
The Court has fully considered the submissions of the parties.
Discussion
Summary judgment is a drastic remedy and is appropriate only when there is a clear demonstration of the absence of any triable issue of fact (Piccirillo v. Piccirillo, 156 A.D.2d 748 [2d Dept 1989], citing Andre v. Pomeroy, 35 N.Y.2d 361 [1974]). The function of the court on such a motion is issue finding, and not issue determination (Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395 [1957]). The court is not to engage in the weighing of evidence; rather, the court's function is to determine whether "by no rational process could the trier of facts find for the non-moving party" (Jastrzebski v. N. Shore Sch, Dist., 232 A.D.2d 677, 678 [2d Dept 1996]).
The court is obliged to draw all reasonable inferences in favor of the non-moving party (Rizzo v. Lincoln Diner Corp., 215 A.D.2d 546 [2d Dept 1995]). Where there is any doubt about the existence of a material and triable issue of fact, summary judgment must not be granted (Anyamvu v. Johnson, 276 A.D.2d 572 [2d Dept 2000]). Where facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility, summary judgment must not be granted (Jastrzebski, 223 A.D.2d at 678).
In the matter at bar, Soto established her prima facie entitlement to judgment by submission of the various deposition transcripts. Her testimony, that she remained stopped at the intersection until the traffic light turned green, then waited several seconds, then traveled across the intersection at a speed less than ten miles per hour, is uncontroverted. Likewise uncontroverted is Sullivan's testimony that he never saw the traffic signal, and was never aware that the intersection was controlled by such a signal.
In opposition, plaintiffs and defendant Sullivan failed to raise a triable issue of fact. Their papers, at best, feign issues of fact, including an assertion by Sullivan's attorney that Sullivan claims to have had a green light. That assertion, unsupported by any evidence in the record, is, in fact, directly contradicted by Sullivan's own testimony that he was unaware the traffic signal existed.
Likewise contradicted by the record is Sullivan's assertion that Soto has not eliminated all issues of fact because she could not estimate her own speed. Soto testified that she traversed the intersection at a speed of less than ten miles per hour. As Soto waited for her traffic signal to turn green and then proceeded slowly across the intersection, it 'cannot be argued that her negligence contributed to the occurrence of the accident. While every driver is charged with a duty to see what is there to be seen, a driver who has the right-of-way is entitled to anticipate that the other motorist will obey the traffic law requiring him to yield (Laino v. Lucchese, 35 A.D.3d 672 [2d Dept 2006]).
On the basis of the foregoing, the Court finds that plaintiffs and defendant Sullivan have failed to raise a triable issue of fact on the issues of proximate cause and comparative negligence. Soto's application thus is granted, and the complaint and all cross-claims against her are dismissed.
With the dismissal of all claims against Soto, the issue of liability is resolved. On the Court's own motion, summary judgment is granted to plaintiffs against defendant Sullivan on the issue of liability.
The remaining parties shall appear for conference on the issue of damages, and for the scheduling of a trial date, on April 26, 2018 at 9:00 a.m.
The foregoing constitutes the Decision and Order of the Court.