Opinion
703310 2013
10-09-2018
Ana Maria RODRIGUEZ, Plaintiff, v. COCA-COLA REFRESHMENTS USA, INC., et ano., Defendants.
Counsel for Plaintiff: The Flomenhaft Law Firm, PLLC, 90 Broad Street, Suite 1901, New York, New York 10004, 646-747-0300 Counsel for Defendants: Goldberg Segalla LLP, 200 Garden City Plaza, Suite 520, Garden City, New York 11530, 516-281-9800
Counsel for Plaintiff: The Flomenhaft Law Firm, PLLC, 90 Broad Street, Suite 1901, New York, New York 10004, 646-747-0300
Counsel for Defendants: Goldberg Segalla LLP, 200 Garden City Plaza, Suite 520, Garden City, New York 11530, 516-281-9800
David Elliot, J. It is ordered that the motions are consolidated for purposes of a single disposition and are determined as follows:
Plaintiff commenced this action to recover damages for personal injuries alleged to have been sustained as a result of a motor vehicle accident which occurred on May 6, 2013. Plaintiff previously moved for "partial summary judgment on the issue of liability under CPLR 3212(b) in this ‘left turn’ case." Defendants opposed the motion, and plaintiff submitted her reply thereto.
By order dated June 25, 2015, this court denied plaintiff's motion, stating the following, in relevant part:
"Though the evidence submitted by plaintiff establishes that defendant Fearon operated his truck in violation of Vehicle and Traffic Law § 1160 (c) (see Howell v. RS Cab Corp. , 63 A.D.3d 1002 [2009] ; Mora v. Garcia , 3 A.D.3d 478 [2004] ; Lowden v. Wilson , 8 Misc. 3d 128 [A] [2005] ), plaintiff failed to eliminate issues of fact as to whether her actions with respect to the operation of her own vehicle may have contributed to the accident (see Francis v. J.R. Bros. Corp. , 98 A.D.3d 940 [2012] ; Shin Sook Jin v. Kwon , 42 A.D.3d 445 [2007] ;
Eastmond v. Wen Po Wong , 300 A.D.2d 344 [2002] ). In support of her motion, plaintiff merely states in a conclusory manner that defendant Fearon's negligence was the sole proximate cause of the accident, and that plaintiff had the right of way. Though plaintiff was certainly entitled to anticipate that defendant Fearon would obey traffic rules and regulations, plaintiff, too, had an obligation to operate her vehicle with due care (see generally Adobea v. Junel , 114 A.D.3d 818 [2014] ; Lu Yuan Yang v. Howsal Cab Corp. , 106 A.D.3d 1055 [2013] ; Colpan v. Allied Cent. Ambulette, Inc. , 97 A.D.3d 776 [2012] ), and the record presents issues of fact in that regard."
Plaintiff now seeks leave to renew its motion on the ground of a change in the law, namely, the Court of Appeals' April 2, 2018 Decision of Rodriguez v. City of New York , 31 N.Y.3d 312, 76 N.Y.S.3d 898, 101 N.E.3d 366, which plaintiff states "reversed long-standing law in holding that a plaintiff no longer bears the burden of establishing the absence of his or her own comparative negligence in order to obtain partial summary judgment." Plaintiff goes on to say that, since this court had acknowledged in its June 25, 2015 order that plaintiff had established defendant's negligence, its decision to deny the motion rested on plaintiff having failed to meet her burden as to the absence of comparative fault.
In opposition to the motion, defendants argue: (1) that plaintiff's motion is procedurally improper as it relies upon new arguments not previously offered; and (2) issues of fact exist as to whether defendant's actions were the proximate cause of the occurrence. As to the former, defendants point out that plaintiff previously argued that defendant's negligence was the sole proximate cause of the accident; she never sought summary judgment notwithstanding any issues of comparative fault. As to the latter, defendants argue that the record presents an issue as to whether it was plaintiff, and not defendant, who failed to see what there was to be seen and thus, was solely at fault. In reply, plaintiff states that, but for defendant's violation of the Vehicle and Traffic Law, the accident would not have occurred. As such, summary judgment on the issue of liability is warranted.
CPLR § 2221 (e) (2) provides that a motion for leave to renew shall demonstrate that there has been a change in the law that would change the prior determination (see Cioffi v. Target Corp. , 150 A.D.3d 665, 53 N.Y.S.3d 671 [2d Dept. 2017] ). Plaintiff failed establish that the Rodriguez Decision created a change in the law that would alter the court's prior determination in this matter and, thus, the motion is denied (see generally Kajo v. E.W. Howell Co., Inc. , 120 A.D.3d 1195, 991 N.Y.S.2d 891 [2d Dept. 2014] ).
This court finds that the Rodriguez Court did not, by its holding, require the reexamination of years-old trial court orders which, at the time, followed precedent regarding a plaintiff's burden on a summary judgment motion on the issue of liability (see e.g. Gurnee v. Aetna Life & Cas. Co. , 55 N.Y.2d 184, 191-192, 448 N.Y.S.2d 145, 433 N.E.2d 128 [1982] ). Indeed, in interpreting Rodriguez , the Appellate Division, Second Judicial Department, has said that "a plaintiff is no longer required to show freedom from comparative fault in establishing his or her prima facie case" ( Lopez v. Dobbins , 164 A.D.3d 776, 79 N.Y.S.3d 566 [2018] [emphasis supplied]; see Tsyganash v. Auto Mall Fleet Mgt., Inc. , 163 A.D.3d 1033, 83 N.Y.S.3d 74 [2018] ; Edgerton v. City of New York , 160 A.D.3d 809, 74 N.Y.S.3d 617 [2018] [implying that, if the courts required it pre- Rodriguez , it was good law] ). The court finds that judicial economy requires that those issues already resolved years ago remain that way (see Gurnee , 55 N.Y.2d at 191-192, 448 N.Y.S.2d 145, 433 N.E.2d 128 ). Furthermore, and to that end, particularly given the procedural posture of this case, there is no prejudice in declining to award renewal.
Further, though provided to the court post-submission of the motion, the court finds it appropriate to address plaintiff's argument that the case of Outar v. Sumner , 164 A.D.3d 1356, 81 N.Y.S.3d 751 (2d Dept. 2018) supports retroactive application of Rodriguez . It does not. Rather: the plaintiff in Outar timely appealed an order of the trial court; the appeal was pending on the date that Rodriguez was decided; and the Second Department rendered its Decision and Order after Rodriguez became controlling. Contrastingly, here, among other things, plaintiff's application to withdraw her appeal of this court's June 25, 2015 order was granted on March 10, 2016 (see 2016 N.Y. Slip Op. 66949[U], 2016 WL 938028 [2d Dept.] ).
It should also be noted that, as correctly pointed out by defense counsel, plaintiff previously proceeded on the theory that there was no question as to her own culpable conduct, as defendant's actions were the sole proximate cause of the accident. Plaintiff affirmatively sought a ruling from this court as to her absence of comparative fault. Per her counsel's affirmation in support of the underlying motion, plaintiff averred that defendant was negligent as a matter of law and that his negligence was the sole proximate cause of the accident; thus, there was "no triable issue as to Plaintiff's conduct." Counsel concluded by submitting that, since defendant was negligent in his violation of certain Vehicle and Traffic Law sections, which violation was the sole proximate cause of the accident, there was "no need to burden the court with a trial as to liability in this case." The court found that plaintiff did not meet her burden as to her absence of comparative fault by determining that issues of fact existed as to plaintiff's use of reasonable care (see Lopez v. Dobbins , 164 A.D.3d 776, 79 N.Y.S.3d 566 [2d Dept. 2018] ; Poon v. Nisanov , 162 A.D.3d 804, 79 N.Y.S.3d 227 [2d Dept. 2018] [when a plaintiff specifically argues the absence of comparative fault, it is to be addressed] ).
Accordingly, plaintiff's motion for renewal is denied. Plaintiff's separate motion under sequence no. 7 is granted. The matter is restored to active status. Plaintiff is directed to file a new note of issue, with payment of any requisite fees, on or before, but no later than, November 30, 2018. Plaintiff shall then serve the Clerk of the ex parte department with a copy of this order together with notice of entry, together with the filed note of issue, within 20 days of such filing, which Clerk is then directed to place the matter on the Trial Calendar for March 1, 2019, for purposes of a pretrial conference.