Opinion
Index No. 621079/2016E Motion Sequence No. 002
03-22-2018
Hermione Lauture, Plaintiff, v. Edward Sampson, Defendant.
Attorney for Plaintiff: Bragoli & Associates, P.C. Attorney for Defendant: David J. Sobel, P.C.
Unpublished Opinion
Submitted: 11/15/17
Attorney for Plaintiff: Bragoli & Associates, P.C.
Attorney for Defendant: David J. Sobel, P.C.
PRESENT: WILLIAM B. REBOLINI Justice.
WILLIAM B. REBOLINI JUDGE.
Upon the E-file document list numbered 14-26 read on this application for partial summary judgment on the issue of liability; it is
ORDERED that defendant's motion pursuant to CPLR 3212 for partial summary judgment on the issue of liability is denied.
By summons and complaint dated December 22, 2016, plaintiff commenced this action to recover damages for personal injuries she alleges were the result of a motor vehicle accident that occurred on August 4, 2016 at approximately 3:00 p.m. in the afternoon at or near the intersection of Walt Whitman Road and South Service Road, in the Town of Huntington, County of Suffolk. Defendant joined issue by the service of a verified answer dated January 24,2017. In support of the motion, defendant submits copies of the pleadings, an affirmation of his attorney, discovery demands, plaintiffs verified bill of particulars, a certified copy of the Suffolk County Police Accident Report, plaintiffs duly executed deposition transcript, and defendant's duly executed deposition transcript. Defendant moves for summary judgment on liability on the grounds that plaintiff violated Vehicle and Traffic Law §1141 by failing to yield the right of way to defendant's vehicle. Defendant contends that plaintiff made a left hand turn into the subject intersection, without the right of way, colliding with defendant's vehicle. In opposition, plaintiff submits her attorney's affirmation and her affidavit which aver that plaintiffs vehicle was stopped for approximately one to two minutes at a red traffic signal at the intersection of Walt Whitman Road southbound and South Service Road, that the red traffic signal changed to a green left-turn arrow, at which time plaintiff proceeded to make a legal left turn onto South Service Road. After proceeding to make the left turn, defendant's vehicle, which was traveling northbound on Walt Whitman Road, struck the plaintiffs vehicle.
Summary judgment is a drastic remedy and should only be granted in the absence of any triable issues of fact (see Rotuba Extruders, Inc. v. Ceppos, 46 N.Y.2d 223,413N.Y.S.2d 141 [1978]; Andre v. Pomeroy, 35 N.Y.2d 361, 362 N.Y.S.2d 131 [1974]). It is well settled that the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient proof to demonstrate the absence of any material issues of fact (Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324,508 N.Y.S.2d 923, 925 [1986]; Zuckerman v. City of New York, 49 N.Y.2d 557,427 N.Y.S.2d 595 [1980]). Failure to make such a showing requires a denial of the motion, regardless of the sufficiency of the opposing papers (Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 318 [1985]). Further, the credibility of the parties is not an appropriate consideration for the Court (S.J. Capelin Assoc, Inc. v. Globe Mfg. Corp., 34 N.Y.2d 338, 357 N.Y.S.2d 478 [1974]), and all competent evidence must be viewed in a light most favorable to the party opposing summary judgment (Benincasa v. Garrubbo, 141 A.D.2d 636, 637, 529 N.Y.S.2d 797,799 [2d Dept 1988]). Once a prima facie showing has been made, the burden shifts to the party opposing the summary judgment motion to produce evidence sufficient to establish the existence of a material issue of fact (see Alvarez v. Prospect Hosp., 68 N.Y.2d at 324, 508 N.Y.S.2d 923, citing Zuckerman v. City of New York, 49 N.Y.2d at 562, 427 N.Y.S.2d 595). It is only in rare cases that a trial court is justified in holding that the acts of parties are negligent per se. The questions of negligence and contributory negligence are usually questions of fact (Kellegher v. Forty-Second Street, Manltattanville and St. Nicholas Avenue Railroad Company, 171 NY 309 [1902]).
The conduct of motorists at an intersection controlled by traffic signals is subject to the provisions of Vehicle and Traffic Law § 1111 and not the more general provisions of the Vehicle and Traffic Law such as those set forth in §§ 1140 and 1141, which govern the conduct of drivers at intersections that are not controlled by traffic lights (see Dicke v. And, 31 A.D.3d 696,821 N.Y.S.2d 93 [2d Dept. 2006]; Saggio v. Ladone, 21 A.D.3d 407, 799 N.Y.S.2d 586 [2d Dept. 2005]; Rudolph v. Kahn, 4 A.D.3d408,771 N.Y.S.2d 370 [2d Dept. 2004]; LeClari Pratt, 270 A.D.2d 612,704N.Y.S.2d 354 [3d Dept. 2000]). Section 1111 of the Vehicle and Traffic Law permits motorists approaching an intersection with a green traffic signal to proceed through the intersection provided they yield to vehicles lawfully within the intersection and exercise reasonable care under the circumstances (see Schiskie v. Fernan, 277 A.D.2d 441, 716 N.Y.S.2d 702 [2d Dept. 2000]; see also Shea v. Judson, 283 NY 393 [1940]). Vehicle and Traffic Law § 1111 (a) (2) provides that "[t]raffic ... facing a steady green arrow signal may cautiously enter the intersection only to make the movement indicated by such arrow... [and] shall yield the right of way to other traffic lawfully within the intersection or an adjacent cross walk at the time such signal is exhibited." While a driver who has the right-of-way is entitled to anticipate that the other driver will obey traffic laws which require him or her to yield, the driver who has the right-of-way has a duty of care to exercise reasonable care to avoid a collision with another vehicle which was already in the intersection (see Wilson v. Rosedom, 82 A.D.3d 970, 919N.Y.S.2d59[2d Dept 2011]).
A motorist facing a green traffic signal usually has the right to assume that the light is red for cross traffic and that such traffic will obey the law by stopping for the red light and remaining stationary until the light has changed to green (see Baughman v. Libasci, 30 A.D.2d 696, [2d Dept. 1968]). That is to say, a motorist is entitled to proceed through an intersection confident that other vehicles will comport themselves with the obligations imposed on its driver by Vehicle and Traffic Law § 1111 and without having to anticipate any sudden movement across her lane of travel (see Berner v. Koegel, 31 A.D.3d 591, 819 N.Y.S.2d 89 [2d Dept. 2006]; Perez v. Brux Cab Corp., 251 A.D.2d 157, 674N.Y.S.2d343 [1st Dept. 1998]). Although a motorist proceeding under a green light is not authorized to blindly and wantonly enter the intersection without keeping a proper lookout or employing a reasonable speed, (see Nuziale v. Paper Transport of Green Bay Incorporated, 39 A.D.3d 833, 835 N.Y.S.2d 316 [2d Dept. 2007]), there is no requirement that the motorist reduce his or her speed at every intersection as a reduction in speed is required only where warranted by prevailing conditions (see VTL § 1180(a) (e); Wallace v. Kulm. 23 A.D.3d 1042,804 N.Y.S.2d 187 [4th Dept. 2005]; Mosclt v. Hansen, 295 A.D.2d 717,744 N.Y.S.2d 222 [3rd Dept. 2002]; Barile v. Carroll, 280 A.D.2d 988, 720 N.Y.S.2d 674 [4th Dept. 2001]; Wilke v. Price, 221 A.D.2d 846, 633 N.Y.S.2d 686 [3rd Dept. 1995]).
In this instance, defendant has failed to make a prima facie showing of entitlement to relief, however, even if such a showing can be said to have been attained, plaintiff has demonstrated that there are genuine issues of material fact. In opposition, the plaintiffs deposition testimony raised triable issues of fact as to whether the plaintiff had the right-of-way when she entered the intersection, and whether defendant used reasonable care to avoid the collision after the plaintiff was already in the intersection(see Pollack v. Margolin, 84 A.D.3d 1341,924 N.Y.S.2d 282 [2d Dept 2011]; Acosta v. Blatt Plumbing Inc., 55 A.D.3d 466, 865 N.Y.S.2d 592 [1st Dept 2008]). Specifically, the plaintiff testified that when the left turning arrow turned green, she did not see any vehicles traveling northbound through the intersection and she proceeded to make a left turn onto South Service Road. In reply, defendant asserts that plaintiff violated Vehicle and Traffic Law § 1141 by failing to see what was there to be seen, that being defendant's northbound vehicle. It would appear, however, that if the plaintiff had a green turning arrow, defendant would not have been lawfully proceeding into the intersection, as he would have had a red light as he approached the intersection (see VTL §1111). Here, there clearly are sharp discrepancies and gaps in the accounts of the parties as to who had the right-of-way. Both parties testified that they had the green light and, giving plaintiff every favorable inference, the Court finds that there are material questions of fact which preclude the grant of summary judgment (see Goulet v. Anastasio, 148 A.D.3d 783, 48 N.Y.S.3d 731 [2d Dept. 2017]; Nuziale v. Paper Transport of Green Bay Inc., 39 A.D.3d 833, 835 N.Y.S.2d 316 [2d Dept. 2007]; Munter v. Hubert, 34 A.D.3d 544, 825 N.Y.S.2d 490 [2d Dept. 2006]).
Accordingly, defendant's motion for summary judgment on liability is denied.
The parties' attorneys are scheduled to appear for a pretrial conference on Wednesday, April 18, 2018 at 9:30 a.m. at Part 7of the Supreme Court, 1 Court Street, Riverhead, New York.