Opinion
Index 619956/2018
06-03-2019
TRACEY L. TOSADO, Plaintiff, v. VIRGINIA GRIECO and RACHEL GRIECO, Defendants. VIRGINIA GRIECO and RACHEL GRIECO Third-Party Plaintiffs, v. HECTOR AVILA, Third-Party Defendant.
PLTF'S ATTORNEY: CELLINO & BARNES ATTORNEY FOR DEFT/THIRD-PARTY PLTFS: RUSSO & TAMBASCO ATTORNEY FOR THIRD-PARTY DEFT: MONTFORT, HEALY, MCGUIRE & SALLEY
Unpublished Opinion
ORIG. RETURN DATE: February 19, 2019
FINAL RETURN DATE: March 19, 2019
PLTF'S ATTORNEY:
CELLINO & BARNES
ATTORNEY FOR DEFT/THIRD-PARTY PLTFS:
RUSSO & TAMBASCO
ATTORNEY FOR THIRD-PARTY DEFT:
MONTFORT, HEALY, MCGUIRE & SALLEY
HON. PAUL J. BAISLEY, JR., J.S.C.
Upon the following papers e-filed and read on these motions for summary judgment: Notice of Motion and supporting papers by plaintiff, dated January 30, 2019; by third-party defendant Hector Avila. dated February 6, 2019; Answering Affidavits and supporting papers by defendants, dated March 7, 2019; Replying Affidavits and supporting papers by plaintiff, dated March 14, 2019; by third-party defendant Avila. dated March 18, 2019; (and after hearing counsel in support and opposed to the motion) it is, ORDERED that plaintiffs motion for an order pursuant to CPLR 3212 (e) granting partial summary judgment in her favor on the issue of liability is granted; and it is further
ORDERED that the motion by third-party defendant Hector Avila for summary judgment dismissing the third-party complaint as against him is denied; and it is further
ORDERED that the parties to this action shall appear for a preliminary conference on July 2, 2019 at 10:00 a.m. at the DCM-J Part of the Supreme Court, One Court Street, Riverhead, New York.
This is an action to recover damages for personal injuries allegedly sustained by plaintiff as a result of a motor vehicle accident which occurred on August 28, 2018. The accident allegedly happened when a vehicle owned by defendant Virginia Grieco, and driven by defendant Rachel Grieco collided with the vehicle in which plaintiff was a passenger, when it attempted to make a left turn in an intersection without yielding the right-of-way to plaintiffs vehicle in violation of Vehicle and Traffic Law §1141. Third-party defendant Hector Avila was the owner and operator of the vehicle that plaintiff was a passenger in when the collision occurred.
Plaintiff now moves for an order granting partial summary judgment in her favor on the issue of negligence, arguing that defendant Rachel Grieco improperly made a left turn, failed to yield the right of way to plaintiffs vehicle and was the sole proximate cause of her injuries. In support of his motion, plaintiff submits her own affidavit, copies of the pleadings, pictures of the subject vehicles, and a certified police accident report.
Plaintiff submits her own affidavit which was made in Florida and contains a certificate of acknowledgment. In her affidavit, plaintiff states that on the date of the accident, at approximately 8:10 p.m., she was a front-seat passenger in a vehicle owned and operated by her husband, Hector Alvia. She states that their vehicle was proceeding northbound on Main Street near its intersection with Furrows Road in the Town of Islip, New York, and that there is one lane of travel in each direction and a turning lane at the intersection. She states that there is a traffic light at the intersection, that it was illuminated green for the direction they were traveling, and that it was illuminated red for traffic traveling on Furrows Road.
Tosado states that her vehicle was traveling at a rate of 30 mph, and that it was approximately two to three car lengths from the vehicle directly in front of it which had passed through the intersection before her vehicle entered it. She states that when her vehicle was one to two feet into the intersection, she observed defendants' vehicle making a left turn directly in front of her vehicle, and that within a second her vehicle was struck by defendant's vehicle with a heavy impact. She states that Avila steered his vehicle to the right to avoid the collision, but he was unable to avoid it.
It is well settled that a party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, offering sufficient evidence to demonstrate the absence of any material issues of fact (see Alvarez v Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923 [1986]; Zuckerman v City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595 [1980]). Once such a showing has been made, 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, 508 N.Y.S.2d 923; Zuckerman v City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595).
The Vehicle and Traffic Law establishes standards of care for motorists, and an unexcused violation of such standards of care constitutes negligence per se (Ming-Fai Jon v Wager, 165 A.D.3d 1253, 87 N.Y.S.3d 82 [2d Dept 2018]; Katikireddy v Espinal, 137 A.D.3d 866, 26 N.Y.S.3d 77 [2d Dept 2016]; Vainer v DiSalvo, 79 A.D.3d 1023, 914 N.Y.S.2d 236 [2d Dept 2010]). Vehicle and Traffic Law §1141 provides "[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." The operator of the right-of-way vehicle is entitled to assume that the oncoming vehicle will obey the traffic laws and yield the right of way (Gobin v Delgado, 142 A.D.3d 1134, 38 N.Y.S.3d 63 [2d Dept 2016]; Kassim v Uddin, 119 A.D.3d 529, 987 N.Y.S.2d 878 [2d Dept 2014]). However, every driver must operate his or her vehicle in a reasonable manner, and even a right-of-way driver has an obligation to use his or her senses to avoid colliding with other vehicles (Frey v Richmond Hill Lbr. & Supply, 132 A.D.3d 803, 18 N.Y.S.3d 407 [2d Dept 2015]).
Here, plaintiff established her prima facie entitlement to summary judgment by demonstrating that the Grieco vehicle failed to yield the-right-of way to plaintiffs vehicle by making a left turn into the path of oncoming traffic when it was not reasonably safe to do so in violation of Vehicle and Traffic Law § 1141 (Shashaty v Gavitt, 158 A.D.3d 830, 71 N.Y.S.3d 560 [2d Dept 2018]). Plaintiff also established her prima facie entitlement to summary judgment by demonstrating that she was a nonculpable passenger in the vehicle that was struck by defendants" vehicle (see Gallo v Jairath, 122 A.D.3d 795, 996 N.Y.S.2d 682 [2d Dept 2014]). The burden, therefore, shifted to defendants to proffer evidence in admissible form raising a triable issue of fact (CPLR 3212 [b]; Zuckerman v City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595).
In opposition, defense counsel argues that the affidavit submitted by Tostado is inadmissible, as it is not accompanied by a certificate of conformity pursuant to CPLR 2309 (c). The affidavit was made in Florida, it was notarized by Vanessa Sanchez, a notary public in Florida, and it contains a Uniform Certificate of Acknowledgment with the requisite language demonstrating that it complies with New York statutes (see Real Property Law §§ 299 (3), 311 (5) and 309-b). Under these circumstances, a certificate of conformity is not necessary (see Meikle v Fremont Inv. & Loan Corp., 125 A.D.3d 616, 3 N.Y.S.3d 393 [2d Dept 2015]). In any event, the absence of a certificate of conformity is not a fatal defect (Midfirst Bank v Agho, 121 A.D.3d 343, 991 N.Y.S.2d 623 [2d Dept 2014]).
Defendants submit the affidavit of Rachel Grieco. In her affidavit, Grieco states that she entered the subject intersection to turn left on to Furrows Road, and that she stopped momentarily to look for traffic in the opposite direction. She states that she did not see any cars coming in the opposite direction, so she began to turn and was three quarters of the way through her turn when she observed plaintiffs vehicle approaching northbound towards the intersection moving at an excessive rate of speed. She states that she applied the brakes and stopped her vehicle, but plaintiffs' vehicle continued through the intersection and sideswiped her vehicle.
Grieco's affidavit in opposition to plaintiffs motion is insufficient to raise a triable issue of fact, as plaintiff was an innocent passenger, whose right to summary judgment on the issue of liability is not restricted by possible issues of comparative negligence between the drivers of the vehicles involved in the accident (Gallo v Jairath, 122 A.D.3d 795, 996 N.Y.S.2d 682).
Defendants also oppose the motion on the grounds that it is premature as they have not conducted discovery. However, defendants fail to demonstrate that additional discovery may lead to relevant evidence or that facts essential to oppose the motion are exclusively within the knowledge and control of plaintiff (see CPLR 3212 [f]; Skura v Wojtlowski, 165 A.D.3d 1196, 87 N.Y.S.3d 100 [2d Dept 2018]; Richards v Burch, 132 A.D.3d 752, 18 N.Y.S.3d 87 [2d Dept 2015]; Suero-Sosa v Cardona, 112 A.D.3d 706, 977 N.Y.S.2d 61 [2d Dept 2013]). The "mere hope or speculation that evidence sufficient to defeat a motion for summary judgment may be uncovered during the discovery process" is an insufficient basis for denying the motion (Gasis v City of New York, 35 A.D.3d 533, 534-535, 828 N.Y.S.2d 407, 409 [2d Dept 2006]; see also Dyer Trust 2012-1 v Global World Realty, Inc., 140 A.D.3d 827, 33 N.Y.S.3d 14 [2d Dept 2016]; Savage v Quinn, 91 A.D.3d 748, 937 N.Y.S.2d 265 [2d Dept 2012]). Accordingly, plaintiffs motion for an order pursuant to CPLR 3212 (e) granting partial summary judgment in her favor on the issue of liability is granted.
The motion by third-party defendant Hector Avila for summary judgment dismissing the third-party complaint against him is denied. In support of his motion, Avila relies on the documents submitted in support of plaintiff s motion for summary judgment. He claims that the certified police accident report establishes his prima facie entitlement to summary judgment. The police accident report contains a statement by Avila, which is inadmissible hearsay, and a statement by Rachel Grieco which is an admission and is admissible. However. Rachel Grieco's statement that "she thought the lane was clear when turning''' does not establish that Grieco was the sole proximate cause of the accident. Absent an affidavit by Avila, a prima facie case for summary judgment in his favor cannot be established, as no proof has been submitted to prove that he was not at fault in the happening of the accident and that defendants were the sole proximate cause of the accident (see Giannone v Urdahl, 165 A.D.3d 106, 286 N.Y.S.3d 562 [2d Dept 2018]; Shashaty v Gavitt, 158 A.D.3d 830, 71 N.Y.S.3d 560 [2d Dept 2018]; Hartsuff v Michaels, 139 A.D.3d 1005, 33 N.Y.S.3d 333 [2d Dept 2016]).
Every driver must operate his or her vehicle in a reasonable manner, and even a right-of-way driver has an obligation to use of his or her senses to avoid colliding with other vehicles (Frey v Richmond Hill Lbr. & Supply, 132 A.D.3d 803, 18 N.Y.S.3d 407 [2d Dept 2015]). Having failed to submit competent proof to eliminate triable issues of fact regarding Avila's conduct and the reasonableness of his actions, the motion for summary judgment by third-party defendant Avila is denied.