Opinion
2019-12847 Index No. 610231/17
08-16-2023
LIBERTY MUTUAL INSURANCE COMPANY, etc., plaintiff-respondent, v. Terence NORTON, et al., defendants-respondents, Town of Brookhaven, appellant.
Zaklukiewicz, Puzo & Morrissey, LLP, Islip Terrace, NY (Joseph M. Puzo of counsel), for appellant. Carman Callahan & Ingham, LLP, Farmingdale, NY (Jami C. Amarasinghe of counsel), for plaintiff-respondent. Mintzer Sarowitz Zeris Ledva & Meyers, LLP, New York, NY (Thomas G. Darmody of counsel), for defendants-respondents.
Zaklukiewicz, Puzo & Morrissey, LLP, Islip Terrace, NY (Joseph M. Puzo of counsel), for appellant.
Carman Callahan & Ingham, LLP, Farmingdale, NY (Jami C. Amarasinghe of counsel), for plaintiff-respondent.
Mintzer Sarowitz Zeris Ledva & Meyers, LLP, New York, NY (Thomas G. Darmody of counsel), for defendants-respondents.
ROBERT J. MILLER, J.P., LINDA CHRISTOPHER, BARRY E. WARHIT, LILLIAN WAN, JJ.
DECISION & ORDER In a subrogation action to recover certain damages paid by the plaintiff to its insured, the defendant Town of Brookhaven appeals from an order of the Supreme Court, Suffolk County (William G. Ford, J.), dated October 10, 2019. The order granted the motion of the defendants Terence Norton and Mercedes Norton for summary judgment dismissing the complaint and all cross-claims insofar as asserted against them and denied the cross-motion of the defendant Town of Brookhaven for summary judgment dismissing the complaint and all cross-claims insofar as asserted against it.
ORDERED that the appeal from so much of the order as granted that branch of the motion of the defendants Terence Norton and Mercedes Norton which was for summary judgment dismissing the complaint insofar as asserted against them is dismissed, as the defendant Town of Brookhaven is not aggrieved by that portion of the order (see CPLR 5511 ; Mixon v. TBV, Inc., 76 A.D.3d 144, 156–157, 904 N.Y.S.2d 132 ); and it is further, ORDERED that the order is modified, on the law, by deleting the provision thereof denying the cross-motion of the defendant Town of Brookhaven for summary judgment dismissing the complaint and all cross-claims insofar as asserted against it, and substituting therefor a provision granting that cross-motion; as so modified, the order is affirmed insofar as reviewed; and it is further,
ORDERED that one bill of costs is awarded to the defendant Town of Brookhaven, payable by the plaintiff.
The plaintiff commenced this subrogation action to recover damages that it paid to its insured driver as a result of a motor vehicle collision. The defendants Terence Norton and Mercedes Norton (hereinafter together the Nortons) moved for summary judgment dismissing the complaint and all cross-claims insofar as asserted against them. The defendant Town of Brookhaven cross-moved for summary judgment dismissing the complaint and all cross-claims insofar as asserted against it. In an order dated October 10, 2019, the Supreme Court granted the Nortons’ motion and denied the Town's cross-motion. The Town appeals.
"A defendant moving for summary judgment in a negligence action has the burden of establishing, prima facie, that he or she was not at fault in the happening of the subject accident" ( Shuofang Yang v. Sanacore, 202 A.D.3d 1120, 1121, 163 N.Y.S.3d 605 [internal quotation marks omitted]). "A municipality has a duty to maintain its roads in a reasonably safe condition, and that duty includes the trimming of trees in highway rights-of-way to assure the visibility of stop signs" ( Rivera v. Town of Wappinger, 164 A.D.3d 932, 934, 83 N.Y.S.3d 178 [internal quotation marks omitted]). "No liability will attach for the breach of that duty, however, unless the municipality's failure to maintain its roads in a reasonable condition is a proximate cause of the accident" ( id. at 934, 83 N.Y.S.3d 178 ). "Such proximate cause may be found only where it is shown that it was the very [obstruction] of the stop sign ... which rendered the driver[ ] unaware of the need to stop before proceeding across the intersection" ( id. [internal quotation marks omitted]). "Where the driver had all the warning, all the notice of danger, that a stop sign would have afforded, there is no basis for finding that the obstruction of a sign caused the driver to do anything other than [he or] she would have done had it been present" ( id. [internal quotation marks omitted]).
Here, the Town demonstrated, prima facie, that the plaintiff could not establish that the allegedly obstructed stop sign was a proximate cause of the crash without resorting to speculation (see Theard v. G. Fazio Constr. Co., Inc., 192 A.D.3d 942, 943, 140 N.Y.S.3d 717 ; Lopez v. County of Nassau, 137 A.D.3d 1227, 1228, 27 N.Y.S.3d 389 ). Neither the insured driver nor his passenger had any memory of the collision or the events leading up to it, and therefore, it could not be established whether the insured driver saw or stopped at the stop sign. A witnesses to the collision also did not see whether the insured driver stopped at the stop sign. In light of this evidence submitted by the Town, it was equally likely that a factor other than the stop sign being obstructed caused the insured driver to enter the intersection without yielding to the driver who had the right-of-way (see Theard v. G. Fazio Constr. Co., Inc., 192 A.D.3d at 943, 140 N.Y.S.3d 717 ; Lopez v. County of Nassau, 137 A.D.3d at 1228, 27 N.Y.S.3d 389 ). Similarly, the Town's evidence demonstrated that the plaintiff would not be able to establish that its insured driver lacked the notice of danger that a stop sign would have provided without resorting to speculation (see Murray v. State of New York, 38 N.Y.2d 782, 784, 381 N.Y.S.2d 866, 345 N.E.2d 338 ; Theard v. G. Fazio Constr. Co., Inc., 192 A.D.3d at 943, 140 N.Y.S.3d 717 ; Lopez v. County of Nassau, 137 A.D.3d at 1228, 27 N.Y.S.3d 389 ). In opposition, the plaintiff failed to raise a triable issue of fact. Accordingly, the Supreme Court should have granted the Town's cross-motion for summary judgment dismissing the complaint and all cross-claims insofar as asserted against it.
The Town's remaining contentions need not be reached in light of the foregoing determination or are not properly before this Court.
MILLER, J.P., CHRISTOPHER, WARHIT and WAN, JJ., concur.