Opinion
Index No. 12646/03 Motion No. 4504-009
04-11-2012
ANTHONY GIOIA, As Administrator of the Estate of BRIANNA GIOIA, and the Estate of JEANNE GIOIA and ANTHONY GIOIA, Individually, Plaintiff, v. CITY OF NEW YORK, FLORENCE HANLEY, KEVIN HANLEY, JACKIE RUGGIERO and JOHN RUGGIERO, Defendants.
Present:
HON. THOMAS P. ALIOTTA
DECISION AND ORDER
The following papers numbered 1 to 5 were marked fully submitted on the 29th day of February, 2012.
+-----------------------------------------------------+ ¦ ¦Papers ¦ ¦ ¦ ¦ ¦ ¦Numbered¦ +--------------------------------------------+--------¦ ¦Notice of Motion for Summary Judgment by ¦ ¦ ¦ ¦ ¦ ¦Defendant Jackie Ruggiero and John Ruggiero,¦ ¦ +--------------------------------------------+--------¦ ¦with Supporting Papers and Affidavit ¦ ¦ ¦ ¦1 ¦ ¦(dated December 27, 2011) ¦ ¦ +--------------------------------------------+--------¦ ¦Affidavit in Opposition ¦ ¦ ¦ ¦2 ¦ ¦(dated January 31, 2012) ¦ ¦ +--------------------------------------------+--------¦ ¦Affirmation In Opposition ¦ ¦ ¦ ¦3 ¦ ¦(dated February 2, 2012) ¦ ¦ +--------------------------------------------+--------¦ ¦Affirmation in Opposition ¦ ¦ ¦ ¦4 ¦ ¦(dated February 8, 2012) ¦ ¦ +--------------------------------------------+--------¦ ¦Reply Affirmation ¦ ¦ +--------------------------------------------+--------¦ ¦(dated February 15, 2012) ¦5 ¦ +-----------------------------------------------------+
Upon the foregoing papers, the motion for summary judgment by defendants Jackie Ruggiero and John Ruggiero (hereinafter "defendants") is granted, and the complaint and any cross claims against them are hereby severed and dismissed.
This is an action sounding in wrongful death resulting from an automobile accident which took place on Rockland Avenue in Staten Island, New York on January 21, 2003. Insofar as it appears, the Gioia decedent (Brianna) was a passenger in a car driven by defendant Florence Hanley, a senior at Tottenville High School who, at the time in question, did not possess an operator's license (see Defendants' Exhibit "K", p 22). Said automobile was owned by her father, co-defendant Kevin Hanley. It is undisputed that the accident occurred as a result of Ms. Hanley's vehicle crossing over the double yellow line on Rockland Avenue into the opposing lane of traffic.
Ms. Hanley testified at her EBT that while proceeding along Rockland Avenue, the wheels on the right side of her car got caught in a ditch or gully, causing the whole car to begin to shake. As a result, she turned the steering wheel to the left and skidded onto the opposite side of the roadway, where her car came in to contact with the vehicle driven by defendant Jackie Ruggiero.(see Defendants' Exhibit "K" pp 58-59). Ms. Hanley testified at her EBT that she did not see what caused the ensuing collision, and failed to observe Ms. Ruggiero's SUV prior to contact. Jeanne Gioia, the former administrator of her daughter, Brianna's estate died in 2007 from unrelated causes.
The motion is granted
It is well settled that "[c]rossing a double yellow line into the opposing lane of traffic, in violation of Vehicle and Traffic Law § 1126(a), constitutes negligence as a matter of law, unless justified by an emergency situation not of the driver's own making" (see Foster v Sanchez, 17 AD3d 312); Barbaruolo v. DiFede, 73 AD3d 957). Moreover, a "driver is not required to anticipate that an automobile going in the opposite direction will cross over into oncoming traffic" (see, Eichenwald v Chaudhry, 17 AD3d 403).
Here, the moving defendants established their prima facie entitlement to judgment as a matter of law by submitting evidence demonstrating that codefendant Florence Hanley violated Vehicle and Traffic Law § 1126 (a) by crossing over a double yellow line into an opposing lane of traffic, thereby causing the collision (see Scott v Kass, 48 AD3d 785, 785). In opposition, plaintiffs have failed to submit evidence sufficient to raise a triable issue of fact as to any contributory conduct by the driver of the Ruggerio vehicle.
As plaintiffs correctly point out, since their deceased died as a result of the accident, and is thus unable to describe the events in question, they are entitled to every inference that can reasonably be drawn from the evidence in determining whether a prima facie case of negligence on the part of any of the defendants has been made out (see Noseworthy v City of New York, 298 NY 76, 80). Nevertheless, this does not relieve them of their obligation to provide some proof from which a defendants' negligence can reasonably be inferred (see Marsch v Catanzaro, 40 AD3d 941, 942). As a result, the mere speculation that Mrs. Ruggiero could have done something to avoid the impact with the vehicle crossing over the double yellow line in front of her is insufficient to defeat the motion for summary judgment (see Eichenwald v Chaudhry, 17 AD3d 403). In fact, no evidence has been brought forth from which any negligence on the part of the moving defendants could be reasonably inferred. Based upon all of the deposition testimony, the documentary evidence and the photographs submitted, the defendants motion to dismiss the complaint against them has been rebutted by nothing more than pure conjecture as to any fault on the part of Mrs. Ruggiero.
The Court passes upon no further issue.
Accordingly, it is hereby
ORDERED, that the motion for summary judgment by defendants Jackie and John Ruggiero is granted, and the complaint and any cross claims against these defendants are severed and dismissed; and it is further
ORDERED, that the Clerk enter judgment and mark his records accordingly.
ENTER,
___________
Hon. Thomas P. Aliotta,
J.S.C.