Opinion
Index 601970/2017E
03-20-2018
William R. Voight and Darlene Voight, Plaintiffs, v. Linda S. Chan, Defendant.
Attorney for Plaintiffs: Rappaport, Glass, Levine & Zullo, LLP Attorney for Defendant: Russo & Tambasco
Unpublished Opinion
Motion Date: 12/20/17
Submitted: 12/20/17
Motion Sequence No. 001; MG
Attorney for Plaintiffs: Rappaport, Glass, Levine & Zullo, LLP
Attorney for Defendant: Russo & Tambasco
PRESENT: WILLIAM B. REBOLINI, JUSTICE
WILLIAM B. REBOLINI, JUDGE
Upon the E-file document list numbered 8 to 19 on this application by plaintiff for summary judgment on the issue of liability pursuant to CPLR 3212, it is
ORDERED that plaintiffs' motion is granted for the reasons set forth herein.
By the filing of a summons and complaint on February 1, 2017, plaintiffs commenced this action seeking damages for personal injuries allegedly sustained as a result of a motor vehicle accident on December 2, 2016, which occurred when defendant's vehicle made an unsafe lane change colliding into plaintiff William Voight's vehicle. Issue was joined on February 17, 2017 by the filing and service of an answer. A preliminary conference was held on April 17, 2017 and thereafter discovery proceeded pursuant to the preliminary conference order.
Plaintiffs now move for summary judgment on liability and in support of their motion submit a copy of the pleadings and verified bill of particulars, a certified copy of the police accident report, a copy of defendant's signed MV-104, a copy of plaintiff William Voight's examination before trial, and photographs of plaintiff William Voight's motor vehicle after the accident.
Plaintiff William Voight testified at his examination before trial that the motor vehicle accident occurred on December 2, 2016 at approximately 8:12 p.m. at or near the Northern State Parkway eastbound Route 110 exit ramp. Plaintiff testified that on the date of the accident, he was traveling eastbound in the right-hand lane of Northern State Parkway where the Route 110 exit intersects the Northern State Parkway. Plaintiff further testified that defendant Linda Chan also was driving eastbound on the Northern State Parkway in the left-hand lane. Plaintiff avers that as the two vehicles approached the exit for Route 110, the vehicles were side by side, when defendant suddenly and without warning, attempted to exit the Northern State Parkway at the Route 110 exit ramp from the left-hand lane of the Northern State Parkway. Plaintiff alleges that defendant made an unsafe lane change from the left lane directly into plaintiffs vehicle in the right lane. Plaintiff testified that when his vehicle was struck by defendant's vehicle, his vehicle was sent spinning into the center concrete barrier. Plaintiff alleges that defendant continued onto the Route 110 exit and returned to the scene of the accident after the police and ambulance had arrived. In opposition, defendant provides only her attorney's affirmation. No affidavit of defendant was submitted to refute the facts as alleged by plaintiff.
Summary judgment is a drastic remedy and should only be granted in the absence of any triable issues of fact (see Rotuba Extruders, Inc. v Ceppos, 46 N.Y.2d 223, 413 N.Y.S.2d 141 [1978]; Andre v Pomeroy, 35 N.Y.2d 361, 362 N.Y.S.2d 131 [1974]). It is well settled that the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient proof to demonstrate the absence of any material issues of fact (Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 925 [1986]; Zuckerman v City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595 [1980]). Failure to make such a showing requires a denial of the motion, regardless of the sufficiency of the opposing papers (Winegrad v New York Univ. Med. Ctr., 64N.Y.2d 851, 853, 487 N.Y.S.2d 316, 318 [1985]). Further, the credibility of the parties is not an appropriate consideration for the Court (5.7. Capelin Assoc., Inc. v Globe Mfg. Corp., 34 N.Y.2d 338, 357 N.Y.S.2d 478 [1974]), and all competent evidence must be viewed in a light most favorable to the party opposing summary judgment (Benincasa v Garrubbo, 141 A.D.2d 636, 637, 529 N.Y.S.2d 797, 799 [2d Dept 1988]). Once a prima facie showing has been made, the burden shifts to the party opposing the summary judgment motion to produce evidence in admissible form sufficient to establish the existence of a material issue of fact (see Alvarez v Prospect Hosp., 68 N.Y.2d at 324, 508 N.Y.S.2d 923, citing Zuckerman v City of New York, 49 N.Y.2d at 562, 427 N.Y.S.2d 595). The opposing party must assemble, lay bare and reveal his proof in order to establish that the matters set forth in his pleadings are real and capable of being established (Castro v Liberty Bus Co., 79 A.D.2d 1014, 435 N.Y.S.2d 340 [2d Dept 1981]). When a party fails to oppose matters advanced on a motion, the facts alleged in the moving papers may be deemed admitted by the Court (Kuehne & Naget, Inc. V Baiden, 36N.Y.2d 539, 369 N.Y.S.2d 667 [1975]; Madeline D'Anthony Enter., Inc. v. Sokolowsky, 101 A.D.3d 606, 957 N.Y.S.2d 88 [1st Dept 2012]; Argent Mtge. Co, LLC v Mentesana, 79 A.D.3d 1079, 915 N.Y.S.2d 591 [2nd Dept 2010]).
Vehicle and Traffic Law Section 1128 provides in pertinent part that:
[w]henever any roadway has been divided into two or more clearly marked lanes fro traffic the following rules in addition to all others consistent herewith shall apply:
(a) 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.VTL§1128.
Vehicle and Traffic Law Section 1122 (a) provides, in pertinent part, that "the driver of a vehicle overtaking another vehicle proceeding in the same direction shall pass to the left at a safe distance and shall not again drive to the right side of the roadway until safely clear of the overtaken vehicle."
It is well-established that a violation of the Vehicle and Traffic Law constitutes negligence as a matter of law (see Vainer v. DiSalvo, 79 A.D.3d 1023 [2d Dept. 2010]; see also Elliott v. City of New York, 95 N.Y.2d 730, 724 N.Y.S.2d 397 [2001 ]). It is further well-settled that a driver with the right-of-way is entitled to anticipate that other drivers will obey traffic laws (see Kahn v. Maggies Paratransit Corp., 63 A.D.3d 792 [2d Dept. 2009]) and that a driver is negligent in failing to see that which under the facts and circumstances he should have seen by the proper use of his senses (see Barbieri v. Vokoun, 72 A.D.3d 853, 900 N.Y.S.2d 315 [2d Dept.2010]; Domanova v. State of New York, 41 A.D.3d 633, 838 N.Y.S.2d 644 [2d Dept. 2007]; Lester v Jolicofur et al, 120 A.D.2d 574; 502 N.Y.S.2d61 [2d Dept 1986]).
Based upon the adduced evidence, plaintiff William Voight established his prima facie entitlement to judgment as a matter of law on liability by demonstrating that he was traveling lawfully in the eastbound right lane of the Northern State Parkway when defendant's vehicle entered into his lane of travel and collided with his vehicle (see Vehicle and Traffic Law §§1122 (a) and 1128 (a); Reyes-Diaz v. Quest Diagnostics, Inc., 123 A.D.3d 790, 999 N.Y.S.2d 98 [2d Dept. 2014]; Davidoff v. Mullokandov, 74 A.D.3d 862, 903 N.Y.S.2d 107 [2d Dept. 2010]; Rivera v. Corbett, 69 A.D.3d 916, 892 N.Y.S.2d 790 [2d Dept. 2010]). The plaintiff, having the right of way, was entitled to anticipate that defendant would obey the traffic laws and not change lanes when it was unsafe to do so (see Vehicle and Traffic Law §§ 1122 (a) and 1128 (a); Walker v. Patrix Trucking NY Corp., 115 A.D.3d 943, 982 N.Y.S.2d 552 [2d Dept. 2014]). In addition, a driver is negligent, when, as here, an accident occurs because he or she failed to see that which through the proper use of his or her senses he or she ought to have seen (see Laino v. Lucchese, 35 A.D.3d 672, 827 N.Y.S.2d 249 [2d Dept. 2006]; Bongiovi v. Hoffman, 18 A.D.3d 686, 795 N.Y.S.2d 354 [2d Dept. 2005]).
Being that plaintiff William Voight met his initial burden, defendant was required to present evidence in admissible form sufficient to establish a question of fact. Defendant's assertions that the collision may have been caused by the speed of plaintiff s vehicle or by some evasive actions plaintiff took in order to avoid the accident, which are based only upon defendant attorney's affirmation, are unsupported by any probative evidence in admissible form and amount to sheer conjecture and speculation (see Clark v. Amboy Bus Co., 117 A.D.3d 892, 985 N.Y.S.2d 901 [2d Dept. 2014]; Constantino v. Webel, 57 A.D.3d 472, 869 N.Y.S.2d 179 [2d Dept. 2008]; Trzepacz v. Jara, 11 A.D.3d 531, 782 N.Y.S.2d 852 [2d Dept. 2004]). Moreover, a violation of a statute constituting negligence per se places a duty on a party to provide a reasonable excuse for its failure to comply with the statutorily imposed standard of care (Dalas v. City of New York, 262 A.D.2d 596, 692 N.Y.S.2d 468 [2d Dept. 1999]). Here, nothing has been offered in that regard by defendant. The court further notes that the defendant's signed MV-104, which she does not contest herein, states that she did not see the defendant's vehicle until after the impact and that the accident happened when she was making a lane change. Thus, defendant's own uncontroverted statements establish her negligence as a matter of law (see Vehicle and Traffic Law §§ 1122 (a) and 1128 (a)).
Thus, the testimony and evidence presented on plaintiffs' motion establishes that the defendant was not operating her vehicle with due care and caution, as required of a prudent person under similar circumstances and conditions (Fillippazzo v. Santiago, 277 A.D.2d 419, 716 N.Y.S.2d 710 [2000]); Stewart v State of New York, 29 Misc.2d 525, 208 N.Y.S.2d 402 [Ct of Claims I960]). Therefore, the defendant's negligence was the proximate cause of the accident.
Accordingly, the plaintiff s motion for summary judgment in his favor on the issue of liability is granted.