Opinion
Index No. 619209/17 604891/19 Motion Seq Nos. 003MG 004Mot D002 MG
03-16-2021
ODARKA HUNKO, Plaintiff, v. GEORGE ARGUETA and HAYLNA HUNKO, Defendants. HAYLNA HUNKO, Plaintiff, v. GEORGE ARGUETA, Defendant.
Unpublished Opinion
DECISION/ORDER
Carmen Victoria St. George, Judge
The following electronically filed papers were read upon this motion:
Notice of Motion/Order to Show Cause............ 25-33; 54-64; 67
Answering Papers........................................ 34; 66; 68; 71; 72
Reply....................................................... 35-36; 69
These joined actions arise from the same motor vehicle accident that occurred on March 16, 2016. It is undisputed that Haylna Hunko was operating her Cadillac automobile on Ecker Street, in the Town of Babylon, New York, and that Odarka Hunko, her mother-in-law at the time, was seated in the front passenger seat of that vehicle. Defendant Argueta was backing his vehicle out of his driveway when his vehicle collided with the Hunko vehicle.
In the action identified by Index No. 619209/17, Haylna Hunko (hereinafter Haylna) seeks summary judgment dismissal of the complaint and all cross claims based upon her contention that she is not liable for the happening of the accident (Motion Sequence 003). In this same action, plaintiff Odarka Hunko (hereinafter Odarka) seeks summary judgment against both defendants on the theory that she was an innocent passenger (Motion Sequence 004).
In the related action joined herein and identified by Index No. 604891/2019, Haylna, who is a plaintiff in that action, seeks summary judgment against defendant Argueta on the issue of liability for the happening of the same accident (Motion Sequence 002). Haylna's counsel in that action adopts the arguments and exhibits submitted in support of Motion Sequence 003 made in connection with the 2017 action.
Accordingly, this Court will consider Motion Sequence 003 under Index No. 619209/17 and Motion Sequence 002 under Index No. 604891/19 together. Odarka's cross-motion (Sequence 4) will be determined herein, in a separate discussion.
The Haylna Hunko Motions
The Court recognizes that summary judgment is a drastic remedy and as such should only be granted in the limited circumstances where there are no triable issues of fact (Andre v. Pomeroy, 35 N.Y.2d 361 [1974]). Summary judgment should only be granted where the court finds as a matter of law that there is no genuine issue as to any material fact (Cauthers v. Brite Ideas, LLC, 41 A.D.3d 755 [2d Dept 2007J). The Court's analysis of the evidence must be viewed in the light most favorable to the non-moving party or parties (Makaj v. Metropolitan Transportation Authority, 18 A.D.3d 625 [2d Dept 2005]).
The proponent of a summary judgment motion must tender sufficient evidence to demonstrate the absence any material issue of fact (Winegrad v. New York University Medical Center, 64 N.Y.2d 851, 853 [1985]). Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers (Id.) "Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" (Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 324 [1986]).
As a plaintiff, Haylna. is not required to demonstrate her freedom from comparative fault in order to establish her prima facie entitlement to summary judgment on the issue of liability (Rodriguez v City of New York, 31 N.Y.3d 312 [2018]; Portalatin v. City of New York, 165 A.D.3d 1302, 1303 [2d Dept 2018]).
In support of the motions, Haylna submits, inter alia, the pleadings and the deposition transcripts of her testimony, Odarka's testimony, and defendant Argueta's testimony. Careful review of that deposition testimony establishes that Haylna's vehicle was stopped momentarily on Ecker Street as she attempted to complete a three-point turn and was about to put her vehicle in "drive." when defendant Argueta backed out of his driveway without looking behind him and struck her vehicle.
Ecker Avenue is a residential street with no center markings painted on the roadway. Odarka lived on that street as did the defendant Argueta, and Odarka described the street as being "wide," with room for two cars to pass each other in opposite directions.
According to her testimony, Haylna "completed two points and . . .was about to do the third one by moving forward," when Argueta's vehicle struck hers. Her vehicle was not moving; her foot was on the brake; the gearshift was in neutral, and she was about to put it into drive when the back of Argueta's vehicle struck the passenger side, rear corner of Haylna's vehicle. Haylna testified that she did not see the defendant prior to the impact, and did not have a chance to sound her horn prior thereto because defendant Argueta "flew in the street without even looking if there was anyone there and hit us."
Odarka also testified that Haylna was making a turn on the street because Odarka had forgotten her purse. Odarka testified that Haylna was about to "change the gear" in the vehicle when they were hit by Argueta's car. According to Odarka, Haylna did not even get a chance to change gears because of the impact, and when their vehicle was hit. it was "standing still." Both Haylna and Odarka testified that there was no warning of the impending collision, such as a horn or the screeching of brakes. In fact, Odarka testified that the roadway was clear when Haylna was making the turn.
George Argueta testified that he looked over his right and left shoulders as he was backing out of his driveway to see if any cars were coming from either direction; however, he conceded that he never brought his vehicle to a complete stop while backing out of his driveway. According to his testimony, he merely paused his vehicle for a second or two once he could see past the picket fence to his left, and then he looked over his right shoulder before continuing to back up. At the point where he paused his vehicle, he was partially in his driveway and partially in the street. Mr. Argueta conceded that he never looked into the rear view mirror of his vehicle, nor did he look over his shoulder and out the rear window prior to backing into the street.
Mr. Argueta did not realize that he was involved in an accident until his vehicle struck the Hunko vehicle, and it was only after he felt the impact that he looked through his rearview window. His vehicle was completely in the street when the accident occurred.
VTL § 1211 (a) provides, in pertinent part, that "[t]he driver of a vehicle shall not back the same unless such movement can be made with safety and without interfering with other traffic" (see also Sanabria v. Paduch, 61 A.D.3d 839 [2d Dept 2009]; Nguyen v. Gerolemou, 2013 NY Slip Op 30192 [U] [Sup Ct Queens County 2013]).
Based upon the submitted testimony, Haylna Hunko has established her prima facie entitlement to summary judgment dismissal of the complaint and all cross-claims under Index No. 619209/2017, and to summary judgment in her favor on the issue of liability against defendant Argueta under Index No. 604891/2019.
In opposition, defendant Argueta fails to raise a triable issue of fact. He does not submit any further evidence controverting the evidence submitted by Haylna. Like Argueta, Odarka contends in opposition that an issue of fact is raised by the submitted testimony, because Haylna had a duty to make sure that the roadway was clear before she made her turn, but Haylna testified that she did not see the Argueta vehicle prior to the impact. This Court disagrees. Not only are the coordinated arguments in opposition nothing more than unsupported speculation, but they are rendered specious in view of Odarka's own testimony that, "[t]he road seemed clear, we saw a clear road, and all of a sudden we felt the hit."
The opponents of Haylna Hunnko's summary judgment motions (Sequence 3 under Index No. 619209/2017 and Sequence 2 under Index No. 604891/2019) have each failed to raise a triable issue of fact sufficient to defeat the motions. Accordingly, it is hereby
ORDERED that, under Index No. 619209/2017, Halyna Hunko's summary judgment motion (Sequence 3) is granted, and the complaint and all cross-claims are hereby dismissed as to Halyna Hunko, and it is further
ORDERED that, under Index No. 604891/2019, Haylna Hunko's motion for summary judgment (Sequence 2) is granted, and she shall have summary judgment against defendant Argueta on the issue of liability for the happening of the subject accident.
Odarka Hunko's Summary Judgment Motion
The Court applies the same general principles of law applicable to the determination of summary judgment motions as set forth herein above.
Plaintiff Odarka Hunko seeks summary judgment on the theory that she was an innocent passenger in Haylna's vehicle when the subject accident occurred. In support of her motion, Odarka refers to, inter alia, the same deposition testimony of the parties that this Court has considered in the determination of Haylna's summary judgment motions.
Based upon the deposition testimony, the Court determines that there is no evidence that Odarko Hunko contributed to the happening of the subject accident. Moreover, Odarka testified that her seat belt was fastened at the time of the accident. These uncontested facts compel the conclusion that Odarka Hunko was an innocent passenger, free from comparative fault, and entitled to issuance of an order specifying same (Phillip v. D & D Carting Co., Inc., 136 A.D.3d 18 [2d Dept 2015]), and that Odarka is also entitled to dismissal of Argueta's affirmative defenses, since they appear to be devoid of merit based upon the submitted evidence.
"The right of an innocent passenger to summary judgment on the issue of whether he or she was at fault in the happening of an accident is not restricted by potential issues of comparative negligence as between two defendant drivers" (Medina v. Rodriguez, 92 A.D.3d 850 [2d Dept 2012]; see also CPLR §3212 [g]). In this case, however, this Court has determined that Haylna Hunko is not liable for the happening of the subject accident; therefore, this Court finds that Odarka Hunko has established her prima facie entitlement to summary judgment on the issue of liability as against the remaining defendant, George Argueta only.
In opposition, defendant Argueta states that he "has no objection to finding that the plaintiff was free from negligence for this accident." Argueta maintains instead that, [t]his does not, though, entitle the plaintiff to summary judgment against Argueta. In this case, Argueta should be provided the chance to contest liability as it pertains to defendant Halyna Hunko” In view of this Court's determination as to the Haylna Hunko summary judgment motions, Argueta's argument in this regard is rendered moot.
Haylna Hunko's opposition to Odarka's summary judgment motion also concedes that Odarka Hunko has no liability as a passenger.
Since Odarka Hunko's status as an innocent passenger is uncontested by either of the defendants, no triable issue of fact has been raised in this regard and Odarka is entitled to a determination of same, and that branch of Odarka Hunko's motion seeking summary judgment on the issue of liability is granted as to defendant Argueta, it being
ORDERED that, under Index No. 619209/2017. Odarka Hunko's motion for summary judgment (Sequence 4) is granted, and she shall have summary judgment against defendant Argueta on the issue of liability for the happening of the subject accident, and it is further
ORDERED that the affirmative defenses asserted in Argueta's answer are stricken.
The foregoing constitutes the Decision and Order of this Court.