Opinion
Index No. 20320/2018E
08-31-2018
ANNA PLASENCIA, Plaintiff, v. RALPH CANZONE, JOEL PLASENCIA and VICENTE PLASENCIA, Defendants.
Unpublished Opinion
DECISION AND ORDER
John R. Higgitt, J.
Upon plaintiffs July 2, 2018 notice of motion and the affirmation, affidavit and exhibits submitted in support thereof; the August 8, 2018 affirmation in opposition and the affidavit and exhibit submitted therewith; plaintiffs August 11, 2018 affirmation in reply and the affidavit and exhibit submitted therewith; and due deliberation; plaintiffs motion for summary judgment is granted in part and denied in part.
Plaintiff passenger moves for partial summary judgment on the issue of the negligence of defendant Ralph Canzone, driver of the vehicle that collided with the vehicle in which plaintiff was a passenger, in causing the subject motor vehicle accident. Plaintiff submitted an affidavit in which she avers that while her vehicle proceeded through an intersection uncontrolled for her direction of travel, she observed the Canzone vehicle fail to stop for the stop sign controlling its direction of travel and collide with her vehicle. This adequately established prima facie entitlement to summary judgment on the issue of Canzone's liability (see Gonzalez v Bishop, 157 A.D.3d 460 [1st Dept 2018]).
Although she also submitted a certified police accident report, the exculpatory statements therein purportedly attributable to the drivers are not admissible evidence (see 76th & Broadway Owner LLC v Consol. Edison Co. of N.Y. inc., 160 A.D.3d 447 [1st Dept 2018]).
In opposition. Canzone submits an affidavit in which he avers that he did stop at the stop sign for a few seconds, then approached the curb and stopped for another few seconds. He looked to his left and right and, seeing no oncoming vehicles, entered the intersection, where his vehicle was struck on the passenger's side by the vehicle in which plaintiff was a passenger.
Canzone argues he had the right of way pursuant to Vehicle and Traffic Law § 1140. This provision is inapplicable, however, as it applies to uncontrolled intersections, and at least one direction of travel at the subject intersection was governed by a traffic control device (see Crespo v N.Y.C. Hous. Auth., 222 A.D.2d300 [1st Dept 1995]). In any event, given the lack of details regarding the size of the intersection, the width of the streets, the posted speed limits of the respective roadways or the speed of the vehicles, it cannot be determined which vehicle entered the intersection first and which would have had a duty to yield under the provision. The court notes, though, that the point of impact on the vehicle in which plaintiff was a passenger was not the side but the front corner of the vehicle and the point of impact on Canzone's vehicle was not the front but the passenger's side. These factors, and the differences in the parties' versions of the facts, militate against granting the relief sought (see Ampofo v Brydson, 144 A.D.3d 611 ). To the extent that plaintiff seeks a finding that Canzone's actions were the sole proximate cause of her injuries, her affidavit describing what she perceived is insufficient to establish that, as a matter of law, the driver of her vehicle (defendant Joel Plasencia) exercised reasonable care, particularly in light of the content of Canzone's affidavit.
Plaintiff also moves for an order dismissing Canzone's first affirmative defense alleging plaintiffs culpable conduct. As a passenger, her proof was sufficient to establish prima facie her freedom from negligence contributing to the accident.
Accordingly, it is
ORDERED, the plaintiffs motion for partial summary judgment on the issue of the liability of defendant Ralph Canzone and for an order dismissing that defendant's first affirmative defense is granted to the extent of striking said defendant's first affirmative defense alleging plaintiffs culpable conduct; and it is further
ORDERED, that the first affirmative defense of defendant Ralph Canzone is dismissed. This constitutes the decision and order of the court.