Opinion
Index No. 602522/2019 Mot. Seq. No. 002 MD
06-30-2021
BALWINDER KAUR, Plaintiff. v. JEREMY R. COLEY, Defendant.
DELL & DEAN, PLLC Attorney for Plaintiff. GENTILE & TAMBASCO Attorney for Defendants.
Unpublished Opinion
DELL & DEAN, PLLC Attorney for Plaintiff.
GENTILE & TAMBASCO Attorney for Defendants.
PRESENT: Hon. GEORGE M. NOLAN JUDGE.
GEORGE NOLAN JUDGE.
Upon the following papers read on this motion for summary judgment: Notice of Motion/ Order to Show Cause and supporting papers by defendant, dated January 20. 2021: Notice of Cross Motion and supporting papers; Answering Affidavits and supporting papers by plaintiff, dated February 24. 2021; Replying Affidavits and supporting papers by defendant, dated March 3, 2021: Other: it is
ORDERED that the motion by defendant Jeremy Coley seeking summary judgment dismissing the complaint is denied.
Plaintiff Balwinder Kaur commenced this action to recover damages for injuries he allegedly-sustained as a result of a motor vehicle accident that occurred at the intersection of Pinelawn Road and North Service Road in the Town of Huntington on March 1, 2016. Plaintiff, by her complaint, alleges that the vehicle owned and operated by defendant struck the front driver's side of her vehicle as she was in the process of making a left turn from Pinelawn Road onto North Service Road when it failed to yield the right of way to her vehicle. At the time of the accident, plaintiff was traveling northbound on Pinelawn Road and defendant was traveling southbound on Pinelawn Road.
Defendant now moves for summary judgment contending that he did not breach any duty owed to plaintiff, and that his conduct was not the proximate cause of the subject accident. In particular, defendant argues that plaintiff failed to yield the right of way to his vehicle when she entered the intersection in violation of Vehicle and Traffic Law §1141. In support of the motion, defendant submits copies of the pleadings, the parties' deposition transcript, and an uncertified copy of the police accident report. Plaintiff opposes the motion on the grounds that defendant failed to meet his prima facie burden and that there are triable issue of fact as to the subject accident's happening.
A court's task on a motion for summary' judgment is issue finding rather than issue determination (see Sillman v. Twentieth Century Fox Film Corp., 3 N.Y.2d 395. 165 N.Y.S.2d 498 [1957]), and it must view the evidence in the light most favorable to the party opposing the motion (see Boyce v. Vazquez, 249 A.D.2d 724. 671 N.Y.S.2d 815 [3d Dept 1998]). Therefore, in determining a motion for summary judgment, the facts alleged by the nonmoving parly and all inferences that may be drawn are to be accepted as true (see Roth v. Barreto, 289 A.D.2d 557, 735 N.Y.S.2d 197 [2d Dept 2001 ]). In the first instance, the moving party bears the burden and must tender evidence sufficient to eliminate all material issues of fact (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851. 487 N.Y.S.2d 316 [1985]). However, a plaintiff does not bear the double burden of establishing a prima facie case of defendant's liability and the absence of his or her own comparative fault (Rodriguez v. City of New York, 31 N.Y.3d 312. 324, 76 N.Y.S.3d 898 [2018]). Once such showing has been made, the burden shifts to the nonmoving party to demonstrate the existence of material issues of fact (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923 [1986]). Mere conclusions and unsubstantiated allegations are insufficient to raise any triable issues of fact (see Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595 [1980]; Perez v. Grace Episcopal Church, 6 A.D.3d 596, 774 N.Y.S.2d 785 [2d Dept 2004]).
Since there can be more than one proximate cause of an accident (Cox v. Nunez, 23 A.D.3d 427, 427, 805 N.Y.S.2d 604 [2d Dept 2005]), a defendant must establish that he did not owe plaintiff a duty of care and is free from fault in the happening of the subject accident to obtain summary judgment (see Flores v. Westchester County Bee Line, 186 A.D.3d 676, 126 N.Y.S.2d 922 [2d Dept 2020]; Boulos v. Lerner-Harrington, 124 A.D.3d 709, 2 N.Y.S.3d 526 [2d Dept 2015]). Vehicle and Traffic Law § 1141 states, in pertinent part, that: [a] driver of a vehicle intending to turn left within an intersection 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" (see Gabler v. Marly Bldg. Supply Corp., 27 A.D.3d 519, 813 N.Y.S.2d 120 [2d Dept 2006]). A driver with the right of way is entitled to anticipate that the driver of the other vehicle will obey the traffic laws that require him or her to yield the right of way (see Kucar v. Town of Huntington. 81 A.D.3d 784. 917 N.Y.S.2d 646 [2d Dept 2011]; Kann v. Maggies Paratransit Corp., 63 A.D.3d 792, 882 N.Y.S.2d 129 [2d Dept 2009]; Berner v. Koegel, 31 A.D.3d 591, 819 N.Y.S.2d 89 [2d dept 2006]). However, a driver with the right of way has a duty to exercise reasonable care to avoid a collision with another vehicle already in the intersection (see Todd v. Godek, 71 A.D.3d 872. 895 N.Y.S.2d 861 [2d Dept 2010]; Demant v. Rochevet, 43 A.D.3d 981. 842 N.Y.S.2d 74 [2d Dept 2007]). Further, a driver is negligent when an accident occurs because he or she failed to see that which through the proper use of his or her senses he or she should have seen (see Laino v. Lucchese, 35 A.D.3d 672, 827 N.Y.S.2d 249 [2d Dept 2006]; Bongiovi v. Hoffman, 18 A.D.3d 686. 795 N.Y.S.2d 354 [2d Dept 2005]; Bolta v. Lohan, 242 A.D.2d 356, 661 N.Y.S.2d 286 [2d Dept 1997]).
Plaintiff testified at an examination before trial that prior to the accident she made a left turn onto Pinelawn Road after exiting the parking lot of the Estee Lauder warehouse, her place of employment, that she entered into the right lane of Pinelawn Road, but immediately moved into the left lane to make a left turn onto North Service Road, and that she was traveling approximately 20 to 25 miles per hour. She testified that there was no traffic light controlling her direction of travel at the intersection, and that as soon as she made a left turn onto North Service Road her vehicle was struck by defendant's vehicle. Plaintiff further testified that she did not see defendant's vehicle prior to the accident's occurrence, but that "his vehicle must have come from the back and fast," and that she realized she had been involved in an accident when her vehicle's airbags deployed, striking her in the face.
Defendant testified at an examination before trial that prior to the accident he was traveling straight on Pinelawn Road, heading home from work, that he was traveling in the left lane, and that he did not change lanes prior to the subject accident"s occurrence. He testified that the traffic light was green as he approached the intersection, that his rate of speed was "probably less than 30 mph" as he approached the intersection, that he observed plaintiffs vehicle stopped at the red light on the opposite of Pinelawn Road in the turning lane as he approached the intersection, that the traffic light turned yellow as he was going through the intersection, and that his vehicle was struck once in the front driver's side, causing it to strike the guard rail on the southbound side of Pinelawn Road and the vehicle's airbags to deploy. Defendant further testified that he was unable to avoid the accident because he did not observe plaintiffs vehicle move from its stopped position at the red traffic light, and that he did not hear any horns blowing or tires screeching prior to the impact.
Here, although defendant submitted evidence that plaintiff failed to yield the right of way in violation of Vehicle and Traffic Law § 1141, he failed to establish his entitlement to judgment as a matter of law dismissing the complaint, since he did not demonstrate, prima facie, that plaintiffs failure to yield was the sole proximate cause of the subject accident, or that he was completely free from fault in the subject accident's occurrence (see Tornabene v. Seickel, 186 A.D.3d 645. 129 N.Y.S.3d 110 [2d Dept 2020]; Sirot v. Troiano, 66 A.D.3d 763, 886 N.Y.S.2d 504 [2d Dept 2009]; Nevarez v. S.R.M. Mgt. Corp., 58 A.D.3d 295. 298. 867 N.Y.S.2d 431 ). Moreover, "[a] driver who lawfully enters an intersection may still be found partially at fault for an accident if he or she fails to use reasonable care to avoid a collision with another vehicle in the intersection" (Siegel v. Sweeney, 266 A.D.2d 200, 202, 697 N.Y.S.2d 317 [2d Dept 1999]). Thus, there are issues of fact as to whether defendant used reasonable care to avoid the collision (see M.M.T. v. Relyea, 177 A.D.3d 1013, 114 N.Y.S.3d 385 [2d Dept 2019]; Bullock v. Calabretta, 119 A.D.3d 884, 989 N.Y.S.2d 862 [2d Dept 2014J: Demant v. Rochevert, 43 A.D.3d 981. 842 N.Y.S.2d 74 [2d Dept 2007]). In light of the foregoing, the Court need not consider the sufficiency of the opposition papers (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923 [1986]; Volpetti v. Yoon Kap, 28 A.D.3d 750, 814 N.Y.S.2d 237 [2d Dept 2006]). Accordingly, defendant's motion for summary judgment dismissing the complaint is denied.