Opinion
Index No. 608312/2020 Motion Seq. Nos.: 01 02
06-23-2022
JOAN ISRAEL, Plaintiff, v. NANCY STANKEWICK and EDWARD STANKEWICK, Defendants. NANCY STANKEWICK and EDWARD STANKEWICK, Third-Party Plaintiffs, v. GEORGE J. ISRAEL, Third-Party Defendant.
Unpublished Opinion
PRESENT: HON. DENISE L. SHER Acting Supreme Court Justice.
Denise L. Sher, Judge
The following papers have been read on these motions:
| Papers | Numbered |
| Notice of Motion (Seq. No. 01), Affirmation and Exhibits, Statement of Material Facts ....... | 1 |
| Affirmation in Opposition to: Motion (Seq. No. 01) and Counter-Statement of Material Facts....... | 2 |
| Reply Affirmation to Motion (Seq. No. 01)................ | 3 |
| Notice of Motion (Seq. No. 02), Affirmation and Exhibits Statement of Material Facts and Memorandum of Law ............... | 4 |
| Affirmation in Opposition to Motion (Seq. No. 02) and Counter-Statement of Material Facts................ | 5 |
| Affirmation in Response to Motion (Seq. No, 02)........... | 6 |
| Affirmation in Reply to Motion (Seq. No, 021 and Exhibit........... | 7 |
Upon the foregoing papers, it is ordered that the motions are decided as follows:
Third-party defendant moves (Seq. No, 01), pursuant to CPLR § 3212(b), for an order granting summary judgment on liability and dismissing the Third-Party Complaint against him. Defendants/third-party plaintiffs oppose the motion (Seq. No. 01).
Plaintiff moves (Seq. No. 02), pursuant to CPLR § 3212(b), for an order granting partial summary judgment against defendants/third-party plaintiffs on the issue of liability; and moves for an order dismissing all of the affirmative defenses alleging negligence; and moves for an order setting this matter down for trial on the issue of damages. Defendants/third-party plaintiffs oppose the motion (Seq. No. 02). Third-party defendant submitted an Affirmation in Response to the motion (Seq. No. 02).
This action arises from a motor vehicle accident which occurred on July 28, 2020, at approximately 11:57 a.m., on East Broadway, at or near its intersection with Franklin Boulevard, City of Long Beach, State of New York. The accident involved two (2) vehicles, a 2017 Honda Accord operated by third-party defendant and owned by plaintiff, who was a passenger in the car at the time, and a 2015 Lexus RX 350c, owned by defendant/third-party plaintiff Nancy Stankewick, and operated by defendant/third-party plaintiff Edward Stankewick. See Third-Party Defendant's Affirmation in Support of Motion (Seq. No. 01) Exhibit M. Plaintiff commenced the action with the filing of a Summons and Verified Complaint on or about August 13, 2020. See Third-Party Defendant's Affirmation in Support of Motion (Seq. No. 01) Exhibit A. Issue was joined on or about September 23, 2020. See Third-Party Defendant's Affirmation in Support of Motion (Seq. No. 01) Exhibit B. Defendants/third-party plaintiffs commenced a third-party action on or about November 20, 2020. See Third-Party Defendant's Affirmation in Support of Motion (Seq. No. 01) Exhibit C. Third-party defendant answered the Third-Party Complaint on or about December 24, 2020. See Third-Party Defendant's Affirmation in Support of Motion (Seq. No. 01) Exhibit D.
In support of the motion (Seq. No. 01), third-party defendant submits the transcript from the Examination Before Trial ("EBT") testimony of defendant/third-party plaintiff Edward Stankewick. See Third-Party Defendant's Affirmation in Support of Motion (Seq. No. 01) Exhibit E. Counsel for third-party defendant contends that defendant/third-party plaintiff Edward Stankewick testified, in pertinent part, that he "was operating a silver Lexus that was involved in an accident that occurred in July 2020.... EDWARD STANKEWICK saw a traffic light at the corner. The light was red. He was asked if he stopped. He testified T didn't' see the light. That's what caused the accident'. He admits to going through the red light which is when the accident occurred.... He did not see the sign in the area that said wait for the green light.... The front of EDWARD STANKEWICK's vehicle and the front of the other vehicle contacted.... After the accident, EDWARD STANKEWICK spoke with police. He told the police that he went through a red traffic signal.... EDWARD STANKEWICK does not recall if, when he was turning left, if the speed of his vehicle changed." See id.
Also in support of the motion (Seq. No. 01), third-party defendant submits the transcript from his EBT testimony. See Third-Party Defendant's Affirmation in Support of Motion (Seq. No. 01) Exhibit G. His counsel contends that third-party defendant testified, in pertinent part, that, "[o]n the date of the accident, GEORGE ISREAL (sic) was operating a Honda Accord.... GEORGE ISREAL (sic) was proceeding down East Broadway.... The other vehicle was on Franklin.... At the intersection of Franklin and East Broadway, it was GEORGE ISREAL's (sic) intent to continue driving straight.... A traffic light controls East Broadway and Franklin.... When GEORGE ISREAL (sic) first saw the traffic light, it was green.... The right front of the Israel vehicle and the right front of EDWARD STANKEWICK's vehicle contacted." See id.
Also in support of the motion (Seq. No. 01), third-party defendant submits the transcript from plaintiffs EBT testimony. See Third-Party Defendant's Affirmation in Support of Motion (Seq. No. 01) Exhibit I. Counsel for third-party defendant contends that plaintiff testified, in pertinent part, that she "was a passenger in a vehicle operated by her husband George that was involved in an accident that occurred on July 28, 2020.... The accident occurred at the intersection of Franklin Boulevard and East Broadway.... The Israel vehicle was on Broadway.... She would've gone straight through the intersection.... The intersection of Franklin Boulevard and East Broadway has traffic lights and a sign.... There is also a sign below the corner traffic light that reads wait for green light.... When the Israel vehicle entered the intersection, it had the green light." See id.
In further support of the motion (Seq. No. 01), counsel for third-party defendant contends, in pertinent part, that, "[t]raffic, except pedestrians, facing a steady circular green signal may proceed straight through or turn right or left unless a sign at such place prohibits either such turn. Such traffic, including when turning right or left, shall yield the right of way to other traffic lawfully within the intersection or an adjacent crosswalk at the time such signal is exhibited, [citation omitted]. Traffic, except pedestrians, facing a steady circular red signal, unless to make such other movement as is permitted by other indications shown at the same time, shall stop at a clearly marked stop line, but if none, then shall stop before entering the crosswalk on the near side of the intersection, or in the event there is no crosswalk, at the point nearest the intersecting roadway where the driver has a view of the approaching traffic on the intersecting roadway before entering the intersection and shall remain standing until an indication to proceed is shown except as provided in paragraph two of this subdivision, [citation omitted]. Movant has established a prima facie entitlement to judgment as a matter of law by demonstrating that the adverse vehicle entered the intersection against a red traffic light and that this was the sole proximate cause of the accident. Movant who had the right of way was entitled to assume that the adverse operator would obey the traffic law which required him/her to yield and movant was not comparatively negligent for tailing to avoid the accident since he had only seconds to react to the adverse vehicle, [citation omitted]. The driver of a vehicle intending to turn to the left within an intersection or into an alley, private road, or driveway shall yield the right of way to any vehicle approaching from the opposite direction which is within the intersection or so close as to constitute an immediate hazard, [citation omitted]. Movants (sic) have made a prima facie showing of entitlement to judgment as a matter of law by demonstrating that the operator of the adverse vehicle violated Vehicle and Traffic Law § 1141 when he/she made a left turn directly into the path of movant's vehicle. The operator of the adverse vehicle was negligent in failing to see that which, under the circumstances, he/she should have seen, and in crossing in front of the movant's vehicle when it was hazardous to do so. Furthermore, since movant had the right of way, movant was entitled to anticipate that the operator of the adverse vehicle would obey traffic laws which required him/her to yield, [citations omitted]. Although a driver with a right-of-way also has a duty to use reasonable care to avoid a collision, a driver with the right-of-way who has only seconds to react to a vehicle which has failed to yield is not comparatively negligent for failing to avoid the collision. Here, the movant established the prima facie entitlement to judgment as a matter of law by establishing that the sole proximate cause of the subject accident was the adverse driver's violation of Vehicle and Traffic Law § 1141 in making a left turn when it was not reasonably safe to do so, directly into the path of movant's oncoming vehicle, [citation omitted]. [Third-party] Defendant driver, as the vehicle operator with the right of way, was entitled to assume that [defendant/third-party] plaintiff would obey the traffic laws requiring that he yield the right of way and had no duty to watch for and avoid [defendant/third-party] plaintiff.
Thus, [third-party] defendant was not negligent and is entitled to judgment as a matter of law. [citation omitted]."
In opposition to the motion (Seq. No. 01), counsel for defendants/third-party plaintiffs submits, in pertinent part, that, "[t]he defendants cannot be held solely liable for the occurrence of the subject accident on summary judgment, where, as here, the testimony of George J. Israel, contradicted the testimony of the other parties to this action with regard to how the underlying accident occurred. The third party defendant, George J. Israel, testified ... that he saw the other vehicle before he entered the intersection and then changed his testimony ... to state that his vehicle and the other vehicle entered the intersection at the same time.... Third party defendant, George J. Israel, set forth ... [at] his deposition testimony that he was heading eastbound on East Broadway when the accident occurred.... He further set forth at... his deposition ... that the defendant-operator, Edward Stankevyick, came from the north, from Franklin Boulevard.... In contrast, the defendant, Edward Stankewick, set forth at... his deposition testimony that he was heading westbound and was making a left turn to head southbound when the accident occurred.... With regard to the points of impact, the movant-third party defendant claimed that the right from of his vehicle was impacted by the defendant's vehicle.... But the plaintiff testified that the contact to the movant's vehicle was the front of the vehicle, not the right front of the vehicle.... Thus, there are factual inconsistencies in the testimony in this case, which cannot be decided on summary judgment. Thus, the motion of the third party defendant for summary judgment must be denied. This motion should be denied on the merits because the third party defendant failed to make a prima facie showing of entitlement to summary judgment where, as here, the movant submitted the conflicting deposition testimony of the defendant[/third-party plaintiff] and third party defendant." See Third-Party Defendant's Affirmation in Support of Motion (Seq. No. 01) Exhibits F, G and I.
In reply to the opposition to the motion (Seq. No. 01), counsel for third-party defendant argues, in pertinent part, that, "[i]t is respectfully contended that in the instant case, there isn't a conflict in the testimony and there isn't a dispute as to how the accident occurred. As noted above, EDWARD STANKEWICK candidly admits to running the red light.... When George Israel first saw the light, it was green.... Joan Israel testified that when the Israel vehicle entered the intersection, it had the green light." See id.
It is well settled that the proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law by providing sufficient evidence to demonstrate the absence of material issues of fact. See Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 165 N.Y.S.2d 498 (1957); Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 508 N.Y.S.2d 923 (1986); Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595 (1980); Bhatti v. Roche, 140 A.D.2d 660, 528 N.Y.S.2d 1020 (2d Dept. 1988). To obtain summary judgment, the moving party must establish its claim or defense by tendering sufficient evidentiary proof, in admissible fonn, sufficient to warrant the court, as a matter of law, to direct judgment in the movant's favor. See Friends of Animals, Inc. v. Associated Fur Mfrs., Inc., 46 N.Y.2d 1065, 416 N.Y.S.2d 790 (1979). Such evidence may include deposition transcripts, as well as other proof annexed to an attorney's affirmation. See CPLR § 3212 (b); Olan v. Farrell Lines Inc., 64N.Y.2d 1092, 489N.Y.S.2d 884 (1985).
If a sufficient prima facie showing is demonstrated, the burden then shifts to the non-moving party to come forward with competent evidence to demonstrate the existence of a material issue of fact, the existence of which necessarily precludes the granting of summary judgment and necessitates a trial. See Zuckerman v. City of New York, supra. When considering a motion for summary judgment, the function of the court is not to resolve issues but rather to determine if any such material issues of fact exist. See Sillman v. Twentieth Century-Fox Film Corp., supra. Mere conclusions or unsubstantiated allegations are insufficient to raise a triable issue. See Gilbert Frank Corp. v. Federal Ins. Co., 70 N.Y.2d 966, 525 N.Y.S.2d 793 (1988).
Further, to grant summary judgment, it must clearly appear that no material triable issue of fact is presented. The burden on the Court in deciding this type of motion is not to resolve issues of fact or determine matters of credibility, but merely to determine whether such issues exist. See Ban v. Albany County, 50 N.Y.2d 247, 428 N.Y.S.2d 665 (1980); Daliendo v. Johnson, 147A.D.2d 312, 543 N.Y.S.2d 987 (2d Dept. 1989). It is the existence of an issue, not its relative strength that is the critical and controlling consideration. See Barrett v. Jacobs, 255 N.Y. 520 (1931); Cross v. Cross, 112 A.D.2d 62, 491 N.Y,S.2d 353 (1st Dept. 1985). The evidence should be construed in a light most favorable to the party moved against. See Weiss v. Garfield, 21 A.D.2d 156, 249 N.Y.S.2d 458 (3d Dept. 1964).
The admissions of defendant/third-party plaintiff Edward Stankewick that his vehicle proceeded through the subject red traffic light, that he did not see the red light and that these actions are what caused the subject accident establishe, prima facie, that he was solely at fault for the subject accident. See Third-Party Defendant's Affirmation in Support of Motion (Seq. No. 01) Exhibit G; King v. Dalton, 267 A.D.2d 208, 669 N.Y.S.2d 465 (2d Dept. 1999); Sheehan v. Marshall, 9 A.D.3d 403, 780 N.Y.S.2d 34 (2d Dept. 2004); White v. Clybum, 284 A.D.2d 328, 725 N.Y.S.2d 557 (2d Dept. 2001); Pitt v. Alpert, 51 A.D.3d 650, 857 N.Y.S.2d 661 (2d Dept. 2008).
Third-party defendant, in his motion (Seq. No. 01). has demonstrated prima facie entitlement to summary judgment. Therefore, the burden shifts to defendants/third-party plaintiffs to demonstrate an issue of fact which precludes summary judgment. See Zuckerman v. City of New York, supra.
After applying the law to the facts in this case, the Court finds that defendants/third-party olaintiffs have failed to meet their burden to demonstrate an issue of fact which precludes summary judgment. Counsel for defendants/third-party plaintiffs has not submitted any admissible evidence to rebut third-party defendant's prima facie showing of entitlement to judgment as a matter of law.
Accordingly, third-party defendant's motion (Seq. No. 01), pursuant to CPLR § 3212(b), for an order granting summary judgment on liability and dismissing the Third-Party Complaint against him, is hereby GRANTED.
With respect to plaintiffs motion (Seq. No. 02), counsel for plaintiff asserts, in pertinent part, that, "[t]he motion should be granted in its entirety because the undisputed evidence establishes that the defendants, NANCY STANKEWICK and EDWARD STANKEWICK ('defendants' or 'STANKEWICK'), were negligent as a matter of law and the sole cause of the subject accident which occurred on July 28, 2020. More particularly, said Motion should be granted in its entirety for the following reasons: i. There evidence is undisputed that the defendant EDWARD STANKEWICK made a left turn and went through a steady red light directly into the path of third-party defendant; ii. Defendant EDWARD STANKEWICK admitted at his deposition and to the responding police officer that the accident happened because he did not stop at the red light; iii. The evidence is undisputed that plaintiff had nothing to do with the happening of the accident because she was a passenger in third-party defendant's vehicle; iv. Defendant EDWARD STANKEWICK blatantly disregarded §1110; §1111(d) and §1141 of the New York State Vehicle and Traffic Law; v. Defendants admit in their Answer that defendant, NANCY STANKEWICK, was the owner of the subject vehicle, and is therefore liable under under (sic) VTL §388; vi. The evidence is undisputed that defendants are the sole proximate cause for the happening of this accident.''
Counsel for plaintiff further submits, in pertinent part, that, "[s]imply put, plaintiff was a passenger in the car operated by her husband, third party defendant ISRAEL, which was hit by the defendant, EDWARD STANKEWICK, when he made a left turn and then drove right through the red light governing the intersection of East Broadway and Franklin Boulevard in Long Beach, New York. Defendant violated New York State Vehicle and Traffic Law §1110; § 1111 and §1141, which is evidence of negligence per se. There is absolutely nothing that defendant STANKEWICK can actually dispute regarding his liability for causing this accident as he admitted to the responding police officer at the scene, and again at his deposition, that after he made his left turn he did not see the red light until after the accident happened. The record in this case clearly establishes that the collision giving rise to this action was caused entirely by the STANKEWICK defendants' negligence, and therefore this case is ripe for summary judgment. Furthermore, it is without question that plaintiff is free from any comparative fault as she was an innocent passenger in third-party defendant's vehicle and thus summary judgment should be granted in her favor. There is no evidence and no testimony that plaintiff did anything to cause or contribute to the happening of this accident and her resulting injuries. Additionally, the only evidence before the Court is that plaintiff was wearing her seatbelt. Thus, defendant's (sic) fifth, sixth and eighth affirmative defenses must be dismissed. Defendant [/third-party plaintiff] STANKEWICK completely failed to exercise due care in the use and operation of his motor vehicle, completely failed to obey the New York State Vehicle and Traffic Law, and completely failed to see that which there was to be seen, to wit, a steady red traffic light for his direction of travel." See Plaintiffs Affirmation in Support of Motion (Seq. No. 02) Exhibit B.
In opposition to plaintiffs motion (Seq. No. 02), counsel for defendants/third-party plaintiffs asserts, in pertinent part, that, "[t]he defendants cannot be held solely liable for the occurrence of the subject accident on summary judgment, where, as here, the testimony of George J. Israel, contradicted the testimony of the other parties to this action with regard to how the underlying accident occurred. The third party defendant, George J. Israel, testified ... that he saw the other vehicle before he entered the intersection and then changed his testimony ... to state that his vehicle and the other vehicle entered the intersection at the same time.... Third party defendant, George J. Israel, set forth ... [at] his deposition testimony that he was heading eastbound on East Broadway when the accident occurred.... He further set forth at... his deposition ... that the defendant-operator, Edward Stankewick, came from the north, from Franklin Boulevard.... In contrast, the defendant, Edward Stankewick, set forth at... his deposition testimony that he was heading westbound and was making a left turn to head southbound when the accident occurred.... With regard to the points of impact, the movant-third party defendant claimed that the right from of his vehicle was impacted by the defendant's vehicle.... But the plaintiff testified that the contact to the movant's vehicle was the front of the vehicle, not the right front of the vehicle.... Thus, there are factual inconsistencies in the testimony in this case, which cannot be decided on summary judgment. Thus, the motion of the third party defendant for summary judgment must be denied. This motion should be denied on the merits because the third party defendant failed to make a prima facie showing of entitlement to summary judgment where, as here, the movant submitted the conflicting deposition testimony of the defendant and third party defendant." See Plaintiffs Affirmation in Support of Motion (Seq. No. 02) Exhibits F, G and H.
Counsel for defendants/third-party plaintiffs adds, in pertinent part, that, "[i]n support of her motion, plaintiff d9id (sic) not submit any affidavit to set forth that she did not take any action prior to or during the accident to contribute to its cause. She never stated that she did not distract the driver before and up to the time of the accident. By seeking dismissal of the defendant's affirmative defense of culpable conduct, she raised the issue of her own culpable conduct in this motion."
The right of plaintiff, as an innocent passenger, to an award of summary judgment on the issue of liability against defendants/third-party plaintiffs is not barred or limited by the existence 11 of any unresolved questions as to the apportionment of fault between the driver of the vehicle in which plaintiff was a passenger and the defendants/third-party plaintiffs. See Brabham v. City of New York, 105 A.D.3d 881, 963 N,Y.S.2d 332 (2d Dept. 2013); Sharpion v. New York City Transit Authority, 136 A,D.3d 712, 24 N.Y,S.3d 385 (2d Dept. 2016); Balladares v. City of New York, 177 A,D,3d 942, 114 N,Y.S.3d 448 (2d Dept 2019).
Based upon the rulings of this Court in Motion Seq, No. 01, coupled with the applicable case law, plaintiffs motion (Seq. No. 02), pursuant to CPLR § 3212(b), for an order granting partial summary judgment against defendants/third-party plaintiffs on the issue of liability; and for an order dismissing all of the affirmative defenses alleging negligence: and for an order setting this matter down for trial on the issue of damages, is hereby GRANTED. And it is further
ORDERED that the remaining parties shall appear for Trial, in Nassau County Supreme Court, Differentiated Case Management Part (DCM), at 100 Supreme Court Drive, Mineola, New York, on July 18, 2022, at 9:30 a.m.
This constitutes the Decision and Order of this Court.