Opinion
Index 52728/2016
10-25-2017
ANTHONY J. POMARICO, Plaintiff, v. BRIAN T. BEEHLER and JAMES ROMANO, Defendants. Sequence No. 1
Victor G. Grossman, Judge
Unpublished Opinion
Motion Date: 9/8/17
DECISION & ORDER
Victor G. Grossman, Judge
The following papers, numbered 1 to 11, were considered in connection with Plaintiffs Notice of Motion, dated August 14, 2017, for an Order, granting partial summary judgment on the issue of liability.
PAPERS NUMBERED
Notice of Motion/Affirmation/Exhs. 1-8 1-10
Affirmation in Opposition 11
On October 27, 2016 at about 6:30 a.m.. Plaintiff Anthony J. Pomarico was driving westbound on Route 55 when he collided with a vehicle being operated by Defendant Brian T. Beehler, and owned by Defendant James Romano. Beehler had been traveling on Harmony Hill Road, and as he approached the intersection of Route 55, he made a right-hand turn on to Route 55, failing to yield the right of way to Plaintiffs vehicle, driving into the path of Plaintiff s vehicle, and colliding with it. As a result of the accident. Plaintiff sustained lumbar spine fractures.
Plaintiff moves for summary judgment on the ground that Beehler failed to yield the right of way to him. In support of his application, Plaintiff proffers the Summons and Complaint, the Answer, the Verified Bill of Particulars, Plaintiffs deposition testimony, Beehler's deposition testimony, Romano's deposition testimony, the MV-104 report, and photographs.
Specifically, in his deposition, Plaintiff stated that at the time of the accident, the weather was clear and dry, and the roads were dry (Notice of Motion, Exh. 4 at 19). He was traveling westbound at about 55 to 58 mph in a 55 mph zone (Notice of Motion, Exh. 4 at 24, 26). Westbound traffic was light and he was traveling in the right lane on Route 55 (Notice of Motion, Exh. 4 at 25-27). The road curves slightly to the right prior to the intersection with Harmony Hill Road, and Plaintiff was unable to see Harmony Hill Road as he entered that curve (Notice of Motion, Exh. 4 at 29). According to Plaintiff, from about 200 yards away at the mid-point in the curve, he could see traffic that may be traveling on Harmony Hill Road (Notice of Motion, Exh. 4 at 29-30). Plaintiff saw Beehler's vehicle prior to the accident from about 100 feet away after he had already traveled the curve in the road (Notice of Motion, Exh. 4 at 32). Beehler's car was stopped at the time Plaintiff saw it (Notice of Motion, Exh. 4 at 32-33, 34-35). According to Plaintiff, he had an unobstructed view of Beehler's car (Notice of Motion, Exh. 4 at 35, 38-39). Before the accident, Plaintiff was unaware of a stop sign on Harmony Hill Road (Notice of Motion, Exh. 4 at 35). When Plaintiff observed Beehler's car, the front of Beehler's car was 10 or 15 feet from Route 55 (Notice of Motion, Exh. 4 at 36). 10 seconds passed from the time Plaintiff first noticed Beehler's car and the time they collided (Notice of Motion, Exh. 4 at 36-37). During those 10 seconds, Plaintiff took his eyes off Beehler, and the next time Plaintiff saw him, Beehler's car was right in front of him and entirely in his lane (Notice of Motion, Exh. 4 at 37). There was no sun glare and no obstruction at the lime he saw the vehicle stopped on Harmony Hill Road (Notice of Motion, Exh. 4 at 41-42). It was early morning, and Plaintiff had his headlights on because it was dark enough for them (Notice of Motion, Exh. 4 at 45). Beehler's car also had its headlights illuminated (Notice of Motion, Exh. 4 at 45). Reacting to lights and movement in his peripheral vision, Plaintiff attempted to brake, but was unsuccessful (Notice of Motion, Exh. 4 at 46-47). Plaintiff also attempted to turn his wheel to the left (Notice of Motion, Exh. 4 at 47). Plaintiff described the impact as "[e]xtremely heavy" (Notice of Motion, Exh. 4 at 47). The entire front of Plaintiff s vehicle struck the side of Beehler's vehicle (Notice of Motion, Exh. 4 at 47). Plaintiff did not lose consciousness as a result of the accident (Notice of Motion, Exh. 4 at 48).
Beehler testified that because he sustained a "grade one concussion" in the accident, he was unable to remember the day of the accident (Notice of Motion, Exh. 5 at 17). He did not recall whether he was conscious at the scene (Notice of Motion, Exh. 5 at 19-20). Based on his familiarity of Harmony Hill Road at the intersection of Route 55, Beehler was aware that there was a stop sign that controlled his point of travel, and he was obligated to stop at that stop sign on the day of the accident (Notice of Motion, Exh. 5 at 20).
In opposition, Defendants argue that there is a question of fact as to whether Plaintiff exercised reasonable care to avoid the collision.
It is axiomatic that summary judgment is a drastic remedy and should not be granted where triable issues of facts are raised and cannot be resolved on conflicting affidavits. See Millerton Agway Coop, v. Briarcliff Farms, 17 N.Y.2d 57.61 (19661: Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 404 (1957). Initially, "the proponent... must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issue of tact.' However, once a movant makes a sufficient showing, "the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action." Alvarez v. Prospect Hosp., 68 N.Y.2d 320. 324 (1 986Y Where the moving papers are insufficient, the court need not consider the sufficiency of the opposing papers. Id.; see also Fabbricatore v. Lindenhurst Union Free School Dist, 259 A.D.2d 659 (2d Dept. 1999).
"A driver who fails to yield the right-of-way after stopping at a stop sign controlling traffic is in violation of Vehicle and Traffic Law §§1142(a) and 1172(a), and is negligent as a matter of law." Luke v. McFadden, 119 A.D.3d 533 (2d Dept. 2014); Fuertes v. City of New York, 146 A.D.3d 936 2d Dept. 2017). "Moreover, the driver with the right of way is entitled to anticipate that the driver subject to the traffic control device would obey the traffic law." Luke v. McFadden, supra. "A driver traveling with the right of way may be entitled to summary judgment if he can demonstrate that the driver subject to the traffic control device proceeded through the intersection and failed to yield the right of way.' Luke v. McFadden, supra. ''However, "'[t]here can be more than one proximate cause of an accident'" (Rabenstein v. Suffolk County Department of Public Works, 131 A.D.3d 1145 [2d Dept. 2015], quoting Cox v. Nunez, 23 A.D.3d 427 [2d Dept. 2005]), "and thus, the proponent of a summary judgment motion has the burden of establishing freedom from comparative fault as a matter of law." Ruggiero v. Lentini, 123 A.D.3d 998, 999 (2d Dept. 2014). Finally, "a driver traveling with the right-of-way may nevertheless be found to have contributed to the happening of the accident if he or she did not use reasonable care to avoid the accident." Rabenstein v. Suffolk County Department of Public Works, supra at 1146.
Here, based on the Court's review of the evidence before it, the Court finds that there is a triable issue of fact. While it is undisputed that there were no obstructions at this intersection,
Plaintiff testified that he saw Beehler's stopped vehicle from a distance of about 100 feet. However, Plaintiff also admitted that about 10 seconds passed between the time he first observed Beehler and the time the collision occurred, which could have allowed him time to slow down or to take reasonable steps to avoid the crash. Plaintiff conceded that during these 10 seconds, he took his eyes off of Beehler. Plaintiff also stated he was very familiar with this road and intersection. In addition, because this was early in the morning in late October, it was still dark out. Finally, Plaintiff noted that the road curved prior to this intersection, causing him to be unable to see the right-side intersection on Harmony Hill Road until he was midway around the curve. As such, there are questions of fact as to whether Plaintiff exercised reasonable care as he approached the intersection after coming out of the right-turning curve in the road.
As such, it is hereby
ORDERED that Plaintiffs motion is denied; and it is further
ORDERED that the parties and counsel are reminded to appear before the undersigned on Monday, October 30, 2017 at 9:30 a.m. for a pre-trial conference.
The foregoing constitutes the Decision and Order of the Court.