Opinion
Index 612057/2018
01-24-2019
MICHAEL MURRAY, Plaintiff, v. BROADWAY HEIGHTS DAIRY, INC., ELIAS CANTILLO, and HUB TRUCK RENTAL, CORP., Defendants. Mot. Seq. No. 001 MG
PLTF'S ATTORNEY: CELLINO & BARNES, P.C. DEFT'S ATTORNEY: BELLO & LARKIN, ESQS.
Unpublished Opinion
ORIG. RETURN DATE: October 30, 2018
FINAL RETURN DATE: November 30, 2018
PLTF'S ATTORNEY:
CELLINO & BARNES, P.C.
DEFT'S ATTORNEY:
BELLO & LARKIN, ESQS.
Paul J. Baisley, Jr., Judge
Upon the following papers read on this motion for summary judgment; Notice of Motion/ Order to Show Cause and supporting papers by plaintiff, dated October 5, 2018; Notice of Cross Motion and supporting papers __; Answering Affidavits and supporting papers by defendants, dated November 16, 2018; Replying Affidavits and supporting papers by. plaintiff, dated November 26, 2018; Other __; (and after healing counsel in support and opposed to the motion) it is
ORDERED that the motion by plaintiff Michael Murray for summary judgment in his favor on the issue of negligence is granted; and it is further
ORDERED that parties in the instant action shall appear on February 21, 2019 at 10:00 a.m. at the DCM-J Part of the Supreme Court, 1 Court Street, Riverhead, New York for a preliminary conference.
Plaintiff Michael Murray 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 Express Drive North and Commack Road in the Town of Smithtown on April 2, 2018. It is alleged that the accident occurred when the vehicle owned by defendant Hub Truck Rental Corp., leased by defendant Broadway Heights Dairy, and operated by defendant Elias Cantillo struck the blade on the passenger side of the snow plow operated by plaintiff and owned by New York State Department of Transportation while it was stopped at a red traffic light on Express Drive North. At the time of the accident, plaintiff, who was employed with the New York State Department of Transportation and defendant Cantillo, who was employed with Broadway Heights Dairy, were both operating vehicles within the scope of their employment.
Plaintiff now moves for summary judgment in his favor on the issue of negligence on the bases that the accident was caused by defendant Cantillo's negligent operation of defendant Broadway Heights Dairy's leased vehicle, and that, since plaintiff was performing snow plow operations, defendant violated Vehicle and Traffic Law § 1144-a(b) when he failed to use due care as he approached the snow plow. In support of the motion, plaintiff submits, among other things, copies of the pleadings, his own affidavit, a certified copy of the police accident report, and photographs of the snow plow operated by plaintiff. Defendant opposes the instant motion on the grounds that there are material triable issues of fact as to plaintiffs comparative negligence for the happening of the subject accident, and that plaintiffs motion is premature, since discovery has not been conducted. In opposition to the motion, defendant submits his own affidavit.
To establish prima facie entitlement to judgment as a matter of law, a movant must come forward with evidentiary proof, in admissible form, demonstrating the absence of any material issues of fact (see Rodriguez v City of New York, 31 N.Y.3d 312, 76 N.Y.S.3d 898 [2018]; Alvarez v Prospect Hasp., 68 N.Y.2d 320, 508 N.Y.S.2d 923 [1986]; Sillman v Twentieth Century Fox Film Corp., 3 N.Y.2d 395, 165 N.Y.S.2d 498 [1957]). The failure to make such showing requires a denial of the motion, regardless of the sufficiency of the opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 N.Y.2d 851, 487 N.Y.S.2d 316 [1985]). Moreover, 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, 3\ NY3d 312, 324: 76 N.Y.S.3d 898 [2018]).
A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety (Vehicle and Traffic Law § 1128 (a); Gluck v New York City Tr. Auth, 118 A.D.3d 667, 668-669, 987 N.Y.S.2d 89 [2d Dept 2014]; see Truckenmiller v Duran, 125 A.D.3d 639, 3 N.Y.S.3d 367 [2d Dept 2015]). A violation of a standard of care imposed by the Vehicle and Traffic Law constitutes negligence per se (see Barbieri v Vokoun, 72 A.D.3d 853, 856, 900 N.Y.S.2d 315 [2d Dept 2010]; Bolero v Erraez, 289 A.D.2d 274, 734 N.Y.S.2d 565 [2d Dept 2001]).
Here, plaintiff has submitted an affidavit attesting to the fact that the vehicle he was operating, a snow plow owned by New York State Department of Transportation ("NYSDOT"), was struck in the rear passenger side plow wing by the vehicle operated by defendant Cantillo while it was stopped at a red traffic light on the north service road of the Long Island Expressway ("LIE"). In addition, plaintiff avers that at the time of the accident he was engaged in snow clearing operations on the service road of the LIE during the course of an ongoing snow storm as an employee of the NYSDOT, that he was operating one snow plow and his supervisor was operating another snow plow directly behind his vehicle in the same lane, and that the snow plow he was operating was the very first vehicle stopped at the red light in the left turning lane of the north service road of the LIE. Plaintiff explained that the snow plow had overhead flashing amber lights, three steady smaller amber lights on the side and five smaller steady amber lights above the windshield, that it has a plow in the front and "plows/wings" on the driver and passenger sides, that there are steady white beam lights which illuminate the "plows/wings" on both sides and the front plow and back sander, and that there are numerous other flashing lights on the back of the snow plow. Plaintiff further avers that he felt an impact to the rear passenger plow/wing while he was stopped at the red light in the left turning lane waiting for the light to change so he could make a left turn and travel on the south service road, and that immediately following the first impact he felt another one to the same area. Plaintiff avers that the impacts were the result of the dairy truck operated by defendant Cantillo striking the rear wheel of the back passenger "plow/wing" of the snow plow he was operating. Lastly, plaintiff attests that the impacts to the snow plow caused an 8 inch by 3 inch piece of steel to be torn off the plow blade, that the truck operated by defendant Cantillo traveled through the intersection with the wheels on its driver's side elevated and came to a rest after its wheels slammed back down onto the roadway.
This submission is sufficient to establish plaintiffs prima facie entitlement to judgment as a matter of law (see Rodriguez v City of New York, supra; Singh v Thomas, 113 A.D.3d 748, 978 N.Y.S.2d 865 [2d Dept 2014]; Rivera v Corbett, 69 A.D.3d 916, 892 N.Y.S.2d 790 [2d Dept 2010]). Plaintiffs evidence demonstrated that defendant Cantillo was negligent when he made an unsafe lane change in violation of Vehicle and Traffic Law § 1128 [a] (see Meng Wai Wang v Dailly News, L.P., 90 A.D.3d 624, 933 N.Y.S.2d 888 [2d Dept 2011]; Harrison v Bailey, 79 A.D.3d 811, 914 N.Y.S.2d 187 [2d Dept 2010]), and that his negligent operation of the diary truck was the sole proximate cause of the subject accident (see Raza v Gunik, 129 A.D.3d 700, Reyes-Diaz v Quest Diagnostic Inc., 123 A.D.3d 790, 999 N.Y.S.2d 98 [2d Dept 2014]; Walker v Patrix Trucking NY Corp., 115 A.D.3d 943, 982 N.Y.S.2d 552 [2d Dept 2014]).
In addition, the evidence shows defendant Cantillo violated Section 1144-a of the Vehicle and Traffic Law by entering the lane immediately adjacent to the snow plow being operated by plaintiff (see Matter of Forman v New York State Dept. of Motor Vehs., 110 A.D.3d 1075, 973 N.Y.S.2d 780 [2d Dept 2013]; Matter of Russell v Adduci, 140 A.D.2d 844, 528 N.Y.S.2d 232 [3d Dept 1988]). Vehicle and Traffic Law § 1144-a requires every operator of a motor vehicle to exercise due care to avoid colliding with a hazard vehicle which is parked, stopped or standing on the shoulder or any portion of such highway and displaying one or more amber lights pursuant to Vehicle and Traffic Law § 375 (41) (3), and that such due care shall include, but is not limited to moving from a lane which contains or is immediately adjacent to the shoulder where such hazard vehicle is displaying one or more amber light is parked, stopped or standing to another lane. Plaintiff stated in his affidavit that he was engaged in snow plowing operations, that the amber lights, along with numerous other lights, on the snow plow were illuminated while he was stopped in the left turning lane of the north service road of the LIE, and that defendant Cantillo approached the lane adjacent to the snow plow by crossing over three lanes of traffic from the far right lane.
In opposition to the motion, defendants have failed to raise a triable issue of fact. Defendants' failed to submit any evidence in opposition to the motion, relying instead on speculative assertions that are inadequate to withstand summary judgment (see Colandrea v Choku, 94 A.D.3d 1034, 943 N.Y.S.2d 166 [2d Dept 2012]; Vainer v DiSalvo, 79 A.D.3d 1023, 914 N.Y.S.2d 236 [2d Dept 2010]). Of note, defendants did not submit an affidavit by defendant Cantillo setting forth his own version of how the accident occurred in opposition to the motion.
Furthermore, defendants' assertion that plaintiffs summary judgment motion on the issue of negligence is premature, because discovery has yet to be conducted, is without merit. Before a party can defeat or delay a motion for summary judgment claiming ignorance of fact due to unconducted discovery (see CPLR 3212 [f]), a party must demonstrate that the needed proof is within the exclusive knowledge of the moving party (see Berkeley v Fed. Bank & Trust v 229 E. 53rd St. Assoc, 242 A.D.2d 489, 662 N.Y.S.2d 481 [1st Dept 1997]), that the claims in opposition are supported by something more than mere hope or conjecture (see Neryaev v Solon, 6 A.D.3d 510, 775 N.Y.S.2d 348 [2d Dept 2004]), and that the party has made reasonable attempts to discover these facts and that the facts sought would give rise to a triable issue (see Cruz v Ortis El. Co.. 238 A.D.2d 540, 656 N.Y.S.2d 688 [2d Dept 1997]). Here, defendants failed to make such showing. Accordingly, plaintiffs motion for partial summary on the issue of negligence is granted.