Opinion
Index 625549/2018E
08-28-2019
Dennis Magee, Plaintiff, v. Joanne Zeman, Defendant.
Attorney for Plaintiff: Rosenberg & Gluck, LLP Attorney for Defendant: Russo & Tambasco
Unpublished Opinion
Attorney for Plaintiff: Rosenberg & Gluck, LLP
Attorney for Defendant: Russo & Tambasco
HON. WILLIAM B. REBOLINI, J.S.C.
Upon the E-file document list numbered 8 to 17 read on plaintiffs motion for an order pursuant to CPLR 3212 granting summary judgment against defendant on the issue of liability and striking defendant's affirmative defense of comparative negligence; it is
ORDERED that plaintiff s motion for summary judgment on the issue of liability is granted and defendant's affirmative defense of comparative negligence is stricken.
Plaintiff Dennis Magee commenced this action by the filing of summons and complaint on December 31, 2018 to recover damages for personal injuries he allegedly sustained in a motor vehicle accident that occurred on May 24, 2017 at approximately 5:15 p.m., near the intersection of College Road and Palm Street in Suffolk County, New York. Issue was joined on January 17, 2019. Plaintiff now moves for summary judgment on the issue of liability and to strike defendant's affirmative defense of comparative negligence. In support of his motion, plaintiff submits an attorney affirmation, a sworn affidavit, a copy of the pleadings, and the certified police accident report By way of his sworn affidavit, plaintiff alleges that while he was traveling southbound on College Road within the posted speed limit, and after he entered the intersection with Palm Street, defendant Joanne Zeman, who was traveling northbound on College Road, suddenly and without warning crossed over both double yellow lines prior to reaching the intersection and traveled directly into the path of plaintiff s vehicle, striking it head-on. Plaintiff further alleges that he attempted to avoid the collision by applying his brakes, however, he only had a moment to react and was unable to avoid the accident. According to the certified police report, defendant advised that she was "going to make a left turn and started making the turn too soon, crossing into oncoming traffic." Plaintiff argues that defendant violated sections 1141, 1163, and 1120 of the Vehicle and Traffic Law and that these violations and her failure to keep a proper lookout and observe what she should have seen with proper use of her senses were the proximate cause of the collision. Defendant opposes the motion claiming summary judgment is premature as there has been no discovery, that the police report is inadmissible hearsay, and that plaintiff has failed to show that he acted reasonably under the circumstances. Plaintiff replies.
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, 413 N.Y.S.2d 141 [1978]; Andre v Pomeroy, 35 N.Y.2d 361, 362 N.Y.S.2d 131 (1974]). The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issue of fact (see Alvarez v Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923 [1986]; Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 487 N.Y.S.2d 316 [1985]). The burden then shifts to the party opposing the motion who must produce evidentiary proof in admissible form sufficient to require a trial of the material issues of fact (Roth v. Barreto, 289 A.D.2d 557, 735 N.Y.S.2d 197 [2d Dept 2001]; Rebecchi v. Whitmore, 172 A.D.2d 600, 568 N.Y.S.2d 423 [2d Dept 1991]; O'Neill v. Town of Fishkill, 134 A.D.2d 487, 521 N.Y.S.2d 272 [2d Dept 1987]). To defeat a motion for summary judgment, a party opposing such motion must lay bare his proof in evidentiary form; conclusory allegations are insufficient to raise a triable issue of fact (see Friends of Animals, Inc. v. Associated Fur Mfrs., 46 N.Y.2d 1065, 416 N.Y.S.2d 790; Burns v. City of Poughkeepsie, 293 A.D.2d 435, 739 N.Y.S.2d 458 (2d Dept 2002]). It is well settled that an affirmation of an attorney who lacks personal knowledge of the facts has no probative value (see Cullin v. Spiess, 122 A.D.3d 792, 997 N.Y.S.2d 460 [2d Dept 2014]) 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]). A motion for summary judgment should be denied where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility (see Chimbo v. Bolivar, supra; Benetatos v. Cometford, 78 A.D.3d 730, 911 N.Y.S.2d 155 [2d Dept. 2010]).
Vehicle and Traffic Law § 1141 requires that "[t]he 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." A driver with the right of way is entitled to anticipate that other motorists will obey traffic laws that require them to yield the right of way (see Lebron v Mensah, 161 A.D.3d 972, 76 N.Y.S.3d 219 [2d Dept. 2018]; Bullock v. Calabretta, 119 A.D.3d 884 [2d Dept 2014]; Kucar v. Town of Huntington, 81 A.D.3d 784, 917 N.Y.S.2d 646 [2d Dept 2011]; Todd v Godek, 71 A.D.3d 872 [2d Dept 2010] 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]; Gabler v. Marly Bldg. Supply Corp., 27 A.D.3d 519, 813 N.Y.S.2d 120 [2d Dept 2006]). A driver is not required to anticipate that an automobile going in the opposite direction will cross over [ a double yellow line] into oncoming traffic" (Barbaruolo v. Difede, 73 A.D.3d 957, 900 N.Y.S.2d 671 [2d Dept. 2010]). Vehicle and Traffic Law §1163 provides, in pertinent part, that "no person shall turn a vehicle at an intersection unless the vehicle is in proper position ... or tum a vehicle from a direct course or move right of left upon a roadway unless and until such movement can be made with reasonable safety." Further, the general rule under Vehicle and Traffic Law§ 1120 is that a "vehicle shall be driven upon the right half of the roadway," with limited exceptions not applicable herein. A violation of a standard of care imposed by the Vehicle and Traffic Law constitutes negligence per se (Lebron v. Mensah, 161 A.D.3d 972; 76 N.Y.S.3d 219 [2d Dept. 2018]; Barbaruolo v. Difede, 73 A.D.3d 957, 900 N.Y.S.2d 671 [2d Dept. 2010]; Ciatto v. Lieberman, 266 A.D.2d 494, 698 N.Y.S.2d 54 [2d Dept. 1999]; see also Barbieri v. Vokoun, 72 A.D.3d 853, 856, 900 N.Y.S.2d 315 [2d Dept. 2010]; Smith v. State of New York, 121 A.D.3d 1358, 1358-59, 955 N.Y.S.2d 329 [3d Dept. 2014]. Further, a driver is negligent when an accident occurs because the driver failed to see that which through proper use of the driver's 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]; Berner v. Koegel, 31 A.D.3d 591, 819 N.Y.S.2d 89 [2d Dept 2006]; Bongiovi v. Hoffman, 18 A.D.3d 686, 795 N.Y.S.2d 354 [2d Dept 2005]). However, "a driver who has the right-of-way has a duty to exercise reasonable care to avoid a collision with another vehicle" (Gause v. Martinez, 91 A.D.3d 595, 936 N.Y.S.2d 272 [2d Dept. 2012] quoting Todd v. Godek, 71 A.D.3d 872, 895 N.Y.S.2d 861 [2d Dept. 2010]; Bonilla v. Calabria, 80 A.D.3d 720 [2d Dept 2011]; Gardner v. Smith, 63 A.D.3d 783 [2d Dept 2009]; Cox v Nunez, 23 A.D.3d 427 [2d Dept 2005]). There can be more than one proximate cause of an accident and the issue of comparative negligence is generally a question of fact for the jury to decide (see Bullock v. Calabretta, 119 A.D.3d 884, 989 N.Y.S.2d 862 [2d Dept. 2014]; Bonilla v. Calabria, 80 A.D.3d 720 [2d Dept 2011]; Todd v. Godek, 71 A.D.3d 872, 895 N.Y.S.2d 861 [2d Dept. 2010]). The fact that a party violated the Vehicle and Traffic Law would not preclude a finding that comparative negligence by another party contributed to the accident (see Gardner v. Smith, 63 A.D.3d 783 [2d Dept 2009]; Cox v. Nunez, 23 A.D.3d 427 [2d Dept 2005]). However, a plaintiff need not prove that he or she was free from comparative fault in order to establish his or her prima facie entitlement to summary judgment (see Rodriguez v. City of New York, 31 N.Y.3d 312, 2018 NY Slip Op 02287 [2018]; Edgerton v. City of New York, 160 A.D.3d 809, 74 N.Y.S.3d 617 [2d Dept 2018]).
Generally, an uncertified MV-104 police accident report constitutes hearsay and is inadmissible, unless it is subject to an exception to the hearsay rule (see Siemucha v. Garrison, 111 A.D.3d 1398, 1399, 975 N.Y.S.2d 518 [4th Dept. 2013]; see also Lacagnino v. Gonzalez, 306 A.D.2d 250, 760 N.Y.S.2d 533 [2d Dept. 2003]; Hegy v. Coller, 262 A.D.2d 606, 692 N.Y.S.2d 463 [2d Dept. 1999]). Here, however, the police accident report is certified, and the statement by defendant that she was "going to make a left turn and started making the turn too soon, crossing into oncoming traffic" is admissible under the admission against interest exception to the hearsay rule (see Lebron v. Mensah, 161 A.D.3d 972, 76 N.Y.S.3d 219 [2d Dept. 2018]; Jackson v. Trust, 103 A.D.2d 851, 852, 962 N.Y.S.2d 267 [2d Dept. 2013]; Scott v. Kass, 48 A.D.3d 785, 851 N.Y.S.2d 649 [2d Dept. 2008]; Wu v. Continental Truck body Corp., 2019NY Slip Op. 30571, 2019 WL 1093458 [Sup. Ct. NY Cty. 2019]). This admission, as well, supports the facts as presented by plaintiff (see Rosenblatt v. Venizelos, 49 A.D.3d 519, 853 N.Y.S.2d 578 [2d Dept. 2008]; see also Lariviere v. New York City Transit Authority, 82 A.D.3d 1165, 920 N.Y.S.2d 231 [2d Dept. 2011]).
Here, plaintiff demonstrates his prima facie entitlement to judgment as a matter of law on the issue of liability by establishing that defendant violated Vehicle and Traffic Law sections 1141, 1163, and 1120, in that while plaintiff was traveling southbound on College Road, defendant, who was traveling northbound on College Road, crossed over both double yellow lines prior to reaching the intersection of Palm Street and traveled directly into the path of plaintiff s vehicle, at a time when it was not reasonably safe to do so, colliding head-on with plaintiffs vehicle, and that defendant's violations were the sole proximate cause of the accident (see, e.g., Kerolle v. Nicholson, 172 A.D.3d 1187, 101 N.Y.S.3d 387 [2d Dept. 2019]; Yu Mei Liu v. Weihong Liu, 163 A.D.3d 611, 81 N.Y.S.3d 75 [2d Dept. 2018]; Lebron v. Mensah, 161 A.D.3d 972, 76 N.Y.S.3d 219 [2d Dept. 2018]; Ahearn v. Lanaia, 85 A.D.3d 696, 924 N.Y.S.2d 802 [2d Dept. 2011]; Heath v. Liberato, 82 A.D.3d 841, 918 N.Y.S.2d 353 [2d Dept. 2011]; Berner v. Koegel, 31 A.D.3d 591, 819 N.Y.S.2d 89 [2d Dept 2006]; Moreback v. Mesquita, 17 A.D.3d 420, 793 N.Y.S.2d 148 [2d Dept 2005]; Foster v. Sanchez, 17 A.D.3d 312, 792 N.Y.S.2d 579 [2d Dept. 2005]).
Having made the requisite prima facie showing of entitlement to summary judgment on the issue of liability, the burden shifted to defendant to rebut the presumption of negligence or raise a triable issue of fact (see Kerolle v. Nicholson, 172 A.D.3d 1187, 101 N.Y.S.3d 387 [2d Dept. 2019]; Yu Mei Liu v. Weihong Liu, 163 A.D.3d 611, 81 N.Y.S.3d 75 [2d Dept. 2018]; see also Bene v. Dalessio, 135 A.D.3d 679, 22 N.Y.S.3d 237 [2d Dept. 2016]; Cortes v. Whelan, 83 A.D.3d 763, 922 N.Y.S.2d 419 [2d Dept. 2011]; Balducci v. Velasquez, 92 A.D.3d 626, 938 N.Y.S.2d 178 [2d Dept. 2012]). Here, however, defendant only submits the affirmation of her attorney, who lacks personal knowledge of the facts, and thus, it has no probative value (see Lazarre v. Gragston, 164 A.D.3d 574, 81 N.Y.S.3d 541 [2d Dept. 2018]; Cullin v. Spiess, 122 A.D.3d 792, 997 N.Y.S.2d 460 [2d Dept 2014]). Being that defendant has not opposed the facts alleged by plaintiff as to how the accident occurred, the facts as presented in plaintiffs moving papers may be deemed admitted by the Court (Kuehne & Nagel, Inc. v. Baiden, 36 N.Y.2d 539, 369 N.Y.S.2d 667 [1975]; Madeline D'Anthony Enter., Inc. v. Sokolowsky, 101 A.D.3d 606, 957 N.Y.S.2d 88 [1st Dept 2012]; Argent Mtge. Co., LLC v. Mentesana, 79 A.D.3d 1079, 915 N.Y.S.2d 591 [2d Dept 2010]). Thus, defendant has not raised a triable issue of fact to rebut the presumption of negligence. Instead, defendant argues that the motion is premature and that she is entitled to discovery prior to consideration of plaintiff s motion for summary judgment. This argument, however, is unfounded, as defendant fails to adequately demonstrate how discovery might lead to relevant evidence or that facts essential to justify opposition to the motion are exclusively within the knowledge or control of plaintiff (see CPLR 3212 (f); Williams v. Spencer-Hall, 113 A.D.3d 759, 979 N.Y.S.2d 157 [2d Dept. 2014]; Cajas-Romero v. Ward, 106 A.D.3d 850, 965 N.Y.S.2d 559 [2d Dept. 2013]; Romero v. Greve, 100 A.D.3d 617, 953 N.Y.S.2d 296 [2d Dept. 2012]). Indeed, "mere hope or speculation that evidence sufficient to defeat a motion for summary judgment may be uncovered during the discovery process is insufficient to deny the motion" (Cajas-Romero v. Ward, supra, 106 A.D.3d at 852). Defendant provides no evidentiary basis for her claim that further discovery may reveal facts known only to plaintiff (see Lazarre v. Gragston, 164 A.D.3d 574, 81 N.Y.S.3d 541 [2d Dept. 2018]; Yu Mei Liu v. Weihong Liu, 163 A.D.3d 611, 81 N.Y.S.3d 75 [2d Dept. 2018]). Indeed, defendant has personal knowledge of what occurred immediately prior to and during the time of the accident, and thus, defendant could have presented her version of the accident but declined to submit an affidavit to that effect. Under these circumstances, a denial of summary judgment as premature is unwarranted (see Kerolle v. Nicholson, 172 A.D.3d 1187, 101 N.Y.S.3d 387 [2d Dept. 2019]; Deleg v. Vinci, 82 A.D.3d 1146, 919 N.Y.S.2d 396 [2d Dept. 2011]; see also Williams v. Spencer-Hall, 113 A.D.3d 759, 979 N.Y.S.2d 157 [2d Dept. 2014]; Cajas-Romero v. Ward, 106 A.D.3d 850, 965 N.Y.S.2d 559 [2d Dept. 2013]; Kimyagarov v. Nixon Taxi Corp., 45 A.D.3d 736, 846 N.Y.S.2d 309 [2d Dept. 2007]; Abramov v. Miral Corp., 24 A.D.3d 397, 398 [2d Dept. 2005]).
Moreover, plaintiff is entitled to an order striking the defendant's affirmative defense of comparative negligence. It is well established that plaintiff is not required to show an absence of comparative fault to be entitled to summary judgment on the issue of liability (Rodriguez v. City of New York, 31 N.Y.3d 312, 76 N.Y.S.3d 898 [2018]; Harrinarain v. Sisters of St. Joseph, -N.Y.S.3d-, 173 A.D.3d 983 [2d Dept. 2019]). Here, however, plaintiff has the burden on a motion to dismiss to demonstrate that same is without merit (see Poon v. Nisanov, 162 A.D.3d 804, 808, 79 N.Y.S.3d 227 [2d Dept. 2018]). Inasmuch as plaintiff indicates he was unable to avoid the accident, and has otherwise demonstrated he was not at fault in the happening of the accident, and defendant has not offered any evidence in admissible form to raise a triable issue of fact in that regard, the affirmative defense of comparative negligence is stricken (Id.). The Court has considered the remaining contentions of defendant on the issue of liability and finds them to be without merit. Thus, the Court concludes that based upon the admissible evidence presented by plaintiff, which have not been refuted by any admissible evidence from defendant, the negligence of defendant was the proximate cause of the accident.
Accordingly, the motion by plaintiff for summary judgment against defendant on the issue of liability is granted and defendant's affirmative defense of comparative negligence is stricken.