Opinion
Index 58755/17
05-06-2019
SERRON GREEN, Plaintiff, v. THELMA M. BROWN, Defendants.
Unpublished Opinion
DECISION AND ORDER
John P. Colangelo, Judge
The following papers were read on Defendant's motion for an Order granting Summary Judgment pursuant to CPLR § 3212, dismissing Plaintiff's Complaint.
NYSCEF
Notice of Motion-Affirmation-Exhibits A-F 36-43
Affirmation and Affidavits in Opposition 45-47
Reply Affirmation 48
Upon the foregoing papers it is ORDERED that the motion is disposed of as follows:
Plaintiff Serron Green ("Plaintiff) commenced this action to recover for personal injuries sustained by him a s a result of a collision between the bicycle he was riding and a motor vehicle being operated by Defendant Thelma M. Brown ("Defendant") on September 17, 2014 at approximately 7:50 P.M at the intersection of East Prospect Avenue Esplanade Road in Mount Vernon, New York. The Summons and Verified Complaint were electronically filed on on June 7, 2017. (Def. Exh. A). Defendant's Verified Answer and Demand for a Verified Bill of Particulars was served on behalf of Defendant on June 22, 207. (Def. Exh. B). Plaintiff served a Verified Bill of Particulars on July 27, 2017. (Def. Exh. C). The Examination Before Trial of Plaintiff was conducted on April 16, 2018, and the Examination Before Trial of Defendant was conducted on April 23, 2018. (Def. Exhs. D & E, respectively).
Plaintiff testified that at the time of the accident, he was riding a bike belonging to his friend, Domingo. (Def. Exh. D, p. 26, lines 12-15; p. 27, lines 2-8). He was the only one riding a bike; Domingo and his friend Jermaine were with him, right on the sidewalk next to him. (Id., p. 31, lines 14-20). Plaintiff was training on the bike for basketbal;; he turned the gear up on the bike and would ride up a steep hill using the steepness of the hill. (1d, p. 33, lines 3-11). No one yelled at him to be careful, "you don't have brakes" because the bike had brakes. (Id., p. 34, lines 2-7). While he was riding up and down the hill, his friends were walking, and they are always in the line of sight. (1d, p. 40, linesl7-21; p. 41, lines 6-8). At the time leading up to the accident, Plaintiff was going down the hill from just having gone up. (Id., p.41, lines 17-22). Plaintiff was coming down Esplanade, and his friends were on the sidewalk on East Prospec,, right near the corner. Domingo was facing the direction of where the Defendant's car came from, Jermaine was facing Plaintiff. (Id., p. 41, lines 23-25; p. 42, lines 2-8, 20-25; p. 43, line 2). At the intersection where the accident occurred, there is a stop sign on every corner, meaning four stop signs at the intersection. (Id., p. 43, lines 16-23). Plaintiff observed the [Defendant's] vehicle a split second before he got hit and when he saw the vehicle, it was right next to him. The vehicle was on East Prospect (Id., p. 44, lines 24-25; p. 45, lines 2-13). Plaintiff testified that prior to the accident, as he was proceeding down the hill, he slowed down and looked both ways. He did not stop his bicycle. (Id., p. 59, lines 19-23). He did not stop at the stop sign because he looked both ways as he was coming down the hill. There was no oncoming traffic. The lane was clear at that moment. (Id.; p. 59, lines 24-25; p. 60, lines 2-8). Plaintiff testified that his bike was moving at the time of the impact. (Id., p. 62, lines 24-25; p., 63, lines 2-3). The front of the car hit the front tire of Plaintiff s bike, and as a result of that impact, Plaintiffs head and body hit the car. (ld., 64, lines 15-22). Then Plaintiffs back; legs and the back of his head hit the pavement. (Id. p. 67, lines 8-18).
Defendant testified that she took a train from work to the Mount Vernon station, arrived at approximately 7:45 pm and was heading home in her car. (Def. Exh. E, p. 14, lines 11-20). During her route home, she made a right onto East Prospect Avenue, and there were four stop signs, (Id., p. 16, lines 16-22). East Prospect is a one lane street in each direction. (Id., p.33, lines 9-19). There was no traffic going east on East Prospect. (Id., p. 34, lines 6-16). When she got to the stop sign, she stopped. She could see down the whole street that the stop sign is there. (Id., p. 42, lines 9-16). Defendant testified that she made a full stop at the stop sign, "[l]ooked [at] the other stop sign, [and] saw the white car coming from the southern direction that is on Esplanade, [which] car came and went. [She] looked around, looked again and there was no other car so [she] proceeded"" (Id., p. 43, lines 2-11). When Defendant was stopped at the stop sign before she moved her vehicle again, she looked north, looked at the four corners of where she was. She looked all four ways. (ld., p. 59, lines 2-10, 24). While Defendant was stopped, she did not see any other vehicles, pedestrians or anything else in the roadway in the intersection itself of East Prospect and Esplanade. (Id., p. 60, lines 7-14). Defendant took her foot off the brake and put it on the accelerator to proceed through the intersection at a speed of about 15 mph. As she was proceeding through the intersection she looked straight ahead. (Id., p. 60, lines 15-25; p. 61, line 7, 12-17, 24-25). Defendant testified that as she was traveling into the intersection, she did not see any cars, pedestrian,, people or bikes. (Id., 62, lines 4-8). As she was driving though the intersection, she heard a bump. Something hit her car and she heard somebody calling the name Terrell. (Id. 63, lines 13-20). Defendant felt a bang on her car and saw the guy on a bike. (Id., p. 64, lines 3-4). Defendant further testified that she stopped in the intersection when the [bike hit hercar]. She doesn't remember when she applied her brake. (Id., p. 67, lines 10-18). Her right foot was on the accelerator when she heard the bang, about three or four seconds from the stop sign. (Id., p. 69, lines 23-25; p.70, lines 3-9). She heard the bang and looked and saw the bicycle right across the car. (Id., p. 72, lines 23-25). After she heard the bang, she applied the brakes. (Id., p. 74, lines 8-11). She was in the middle of the intersection when she applied her brakes. (Id., p. 74, lines 12-20). She heard the bang and looked, and saw the bike and the Plaintiff on the ground. (Id., p. 78, lines 5-8).
In opposition, Plaintiff has submitted the Affirmation of his attorney, Gary Certain, Esq. ("Certain Affirmation"), his own affidavit ("Plaintiffs Aff."), and the affidavit of lermaine Ellis ("Ellis Aff").
Plaintiffs affidavit states that on September 17, 2014, he was riding a bicycle down Esplanade at the intersection of East Prospect on his way to the park in Mount Vernon. While riding the bike, he slowed down and looked both ways of East Prospect before he crossed into the intersection of Esplanade and East Prospect. He could see both sides and saw no car waiting or about to enter the intersection. After he crossed more than halfway through the intersection// he was struck by a vehicle that just entered the intersection. (Plaintiffs Aff. ¶¶ 4-8).
Jermaine Ellis, a non-party witness, alleges to have been present at the scene and a witness to the accident. (Ellis Aff. ¶ 3). He contends that the accident occurred when it was still light outside. (Id. ¶ 4). He was walking on the sidewalk near the corner of East Prospect and Esplanade while Plaintiff was riding a bicycle on Esplanade Street near the intersection. (Id. ¶ 5). He saw a white GT type Volkswagen pass through the stop sign without stopping or making any attempt to stop. (Id. ¶ 8). He saw that after the white Volkswagen ran the stop sign, it hit Plaintiff and the bike he was riding. Plaintiff and his bike were already in the intersection at the time the white Volkswagen entered the intersection. The white Volkswagen was going so fast when it entered the intersection that when it hit Plaintiff, it caused Plaintiff to go over the hood and roof' of the vehicle. (Id., ¶¶ 9-11).
In Reply to Plaintiffs opposition, counsel for Defendant contends that Defendant's prima facie showing on the issue of liability is unopposed by admissible evidence. (Affirmation of Jeffrey A. Mondella, Esq.). Specific reference is made to the affidavit of Jermaine Ellis which Plaintiff contends is "plainly inadmissible on its face, as it clearly lacks the necessary basic facts in order to be considered admissible", such as time of day, the corner he was walking on, specificity of the vehicle or bike, which direction the car was traveling from prior to the impact, lack of credentials to be able to describe the basis of speed as "fast", to name a few. (Id. ¶5).
An additional point that Defendant raises in support of his claim that the motion is unopposed by admissible evidence is that Plaintiffs testimony that Ellis was facing him and not the subject intersection directly contradicts what Ellis claims in his affidavit to have been able to witness. (Id. ¶¶ 6-7). According to Defendant, even ifthe Court were to accept the affidavit of Jermaine Ellis, Plaintiff has failed to raise a triable issue of fact as to liability since Plaintiff testified at his deposition that he did not stop at the stop sign and yield the right of way to Defendant's car, and reaffirmed that he failed to stop at the stop sign in the affidavit submitted in support of his opposition. It is argued that Plaintiffs actions, as set forth in his own deposition testimony and affidavit establish violations of Sections 1142(a) and 1172(a) of the Vehicle and Traffic Law ("VTL") and constitute negligence as a matter of law. (Id. ¶¶ 8, 14). The VTL sections cited govern the duty to stop so as to have a view of approaching traffic on the intersecting roadway, and the duty to stop at a stop sign and yield the right-of-way to any vehicle which has entered the intersection or is approaching so closely as to constitute an immediate hazard during the time when a driver is moving across or within the intersection. (Id. ¶¶ 5, 16).
Defendant advances the argument that the sworn deposition testimony of all of the parties establishes that the accident was entirely the fault of Plaintiff, who failed to obey the VTL when riding his bike into the intersection. Defendant is asking this Court to find that the accident was due entirely to Plaintiffs failure to stop his bicycle before entering the intersection, thereby failing to yield to Defendant Brown whose vehicle was already in the intersection after having fully stopped and after Defendant Brown had looked in all directions before proceeding into the intersection. (Id. ¶¶ 14).
Summary Judgment
CPLR S3212(b) states in pertinent part that a motion for summary judgment "shall be granted if, upon all of papers and proof submitted, the cause of action or defense shall be established sufficiently to warrant the court as a matter of law in directing judgment in favor of any party."
In Andre v Pomeroy, 35 N.Y.2d 361, 364 (1974), the Court of Appeals held that:
"[s]ummary judgment is designed to expedite all civil cases by eliminating from the Trial Calendar claims which can properly be resolved as a matter of law ... when there is no genuine issue to be resolved at trial, the case should be summarily decided, and an unfounded reluctance to employ the remedy will only serve to swell the Trial Calendar and thus deny to other litigants the right to have their claims promptly adjudicated."
"On a motion for summary judgment,, the moving party has the burden to 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." Voss v. Netherlands Ins Co., 22 N.Y.3d 728 (2014), quoting Alvarez v: Prospect Hospital, 68 N.Y.2d 320 (1986); see also Winegrad v New York University Medical Center, 64 N.Y.2d 851, 853 (1985), Ayotte v Gervasio, 81 N.Y.2d 1062, 1063 (1993), S.J. Capelin Associates, Inc. v. Globe Manufacturing Corp., 34 N.Y.2d 338, 341 (1974), Finkelstein v. Cornell University Medical College, 269 A.D.2d 114, 117 (1st Dept., 2000).
Once the moving party has sustained his burden of making a prima facie showing of entitlement to summary judgment, "the burden shifts to the opposing party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action." Zuckerman v. City of New York, 49 N.Y.2d 557 (1980). The failure of the proponent of a motion for summary judgment to make a prima facie showing of entitlement requires denial of the motion, regardless of the sufficiency of the opposing papers. Winegrad v New York University Medical Center, 64 N.Y.2d 851, 853 (1985).
Summary judgment is a drastic remedy that "should not be granted where there is any doubt as to the existence of a triable issue." (Id. at 853). In its analysis of such a motion, a court must construe the facts in a light most favorable to the nonmoving party so as not to deprive that person his or her day in court. Russell v A. Barton Hepburn Hospital, 154 A.D.2d 796, 797. (3rd Dept. 1989); See also, Mascots v Oarlock, 23 A.D.2d 943, 944 (3rd Dept., 1965). "To grant summary judgment, it must clearly appear that, no material and triable issue of fact is presented .. . .this drastic remedy should not be granted where the is any doubt as to the existence of such issues, .. .or where the issue is 'arguable'...; 'issue finding, rather than issue-determination, is the key to the procedure'..." Pirrelli v Long Island Railroad, 226 A.D.2d 166 (1st Dept. 1996) quoting Sillman v Twentieth Century-Fox, 3 N.Y.2d 395, 404 (1957)
With the foregoing principles in mind, this Court turns to the papers submitted on this' motion. In this Court's view, Defendant has made a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to establish that her vehicle was already in the intersection after having fully stopped, and that she had looked in all directions before proceeding into the intersection. The inquiry does not end here.
While Plaintiff has admitted that he did not stop at a stop sign, his version of the events places him more than halfway through the intersection when he was struck by Defendant's vehicle that had just entered the intersection. In addition, the sworn statement of Jermaine Ellis raises a triable issue of fact as to whether Defendant's vehicle passed through the stop sign without stopping and whether, notwithstanding Plaintiffs failure to stop at the stop sign, Plaintiff was already in the intersection at the time Defendant's vehicle entered the intersection and due to her speed was unable to stop her vehicle from colliding with the bike. These questions and the credibility to be afforded to the parties and to Mr. Ellis must be decided by a jury.
Accordingly and based upon the foregoing, it is hereby
ORDERED that Defendant's motion for summary judgment is denied; and it is further
ORDERED that the parties and counsel are directed to appear at the Settlement Conference Part, courtroom 1600 on May 30, 2099 at 9:15 A.M.
The foregoing constitutes the Decision and Order of the Court.