Opinion
Index No. 2020/51924 Motion Seq. No. 1
01-05-2021
BERNARD BOWMAN, CASSANDRA WILLIS-BOWMAN, Plaintiffs v. MASON WAYNE GERUNDO, SUSAN MARSHALL, Defendants.
Thomas L Lavin, Esq., The Law Office of Thomas J. Lavin, P.C., Attorneys for Plaintiffs. Matthew V. Mirabile, Esq. McCabe & Mack, LLP, Attorneys for Defendants.
Unpublished Opinion
Thomas L Lavin, Esq., The Law Office of Thomas J. Lavin, P.C., Attorneys for Plaintiffs.
Matthew V. Mirabile, Esq. McCabe & Mack, LLP, Attorneys for Defendants.
Present: Hon. HAL B. GREENWALD, Justice.
DECISION AND ORDER
Hon. Hal B. Greenwald, J.S.C.
The following papers were reviewed by the Court in reaching the within Decision and Order: NYSCEF Doc. Nos. 1,2,3-11, 14-17, 18, 19
This matter concerns an alleged cross-over, head-on motor vehicle accident that occurred on November 2, 2018. Plaintiffs BERNARD BOWMAND (owner and operator) and CASSANDRA WILLIS-BOWMAN (passenger) (BOWMAN) were traveling northbound on Rte 82 in the area of Creamery Rd in the Town of East Fishkill, Dutchess County. Defendant MASON WAYNE GERUNDO (operator) (GERUNDO) and Defendant SUSAN MARSHALL (owner) were at the same location and time traveling southbound. It is alleged that GERUNDO crossed over the yellow line on these two lanes (one in each direction) road and collided with the BOWMAN vehicle head-on. The instant motion by BOWMAN seeks Summary Judgment on the issue of liability against the Defendants. Defendants oppose the motion.
SUMMARY JUDGMENT STANDARD
As set forth in Sillman v. Twentieth Century Fox Film Corp.. 3 N.Y.2d 395 [1957], summary judgment is a drastic remedy which should not be granted where there is any doubt as to the existence of triable issues of fact, (see Rotuba Extruders, Inc. v. Ceppos, 46 N.Y.2d 223 [1978] Di Menna & Sons v. City of New York, 301 N.Y.118 [1950]; Greenbere v. Bar Steel Constr. Corp., 22 N.Y.2d 210[1968]; Barrett v. Jacobs, 255 N.Y. 520[1931]; Specifically, automobile accident cases do not generally lend themselves to disposition under summary judgment rules as the question of negligence is essentially one of fact. Andre v. Pomeroy, 35 N.Y.2d 361, 362 [1974] see (Schneider v. Miecznikowski, 16 A.D.2d 177[4th Dep't, 1962]: Barker v. Savage, 45 N.Y.191 [1871]: Salomone v. Yellow Taxi Corp., 242 N.Y. 251 [1926].).
When a court decides a motion for summary judgment: "...issue-finding not issue-determination is the key to the procedure. If and when the court reaches the conclusion that a genuine and substantial issue of fact is presented, such determination requires the denial of the application for summary judgment." Esteve v. Abad. 271 A.D. 725 (1st Dep't, 1947).
Generally, the basis for determining summary judgment is that: "[T]he proponent of a summary judgment motion must make a prima facie case showing entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material fact." Pullman v. Silverman, 28N.Y.3d 1060, 1062(2016), quoting Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324 (1986). Further as stated in Wineerad v. New York Univ. Med. Ctr., 64 N.Y.2d 851,853 (1985) "Bare conclusory assertions..." are insufficient to cause the court to grant summary judgment.
For a summary judgment motion to be denied, the one opposing the motion must demonstrate the existence of facts that have a probative value that indicates there is an unresolved material issue .See e.g. Piedmont Hotel Co. v. A.E. Nettle ton Co., 263 N.Y. 25, 188 N.E. 145 (1933); If the opposition can show there are questionable issue of fact that require a trial of the action, than summary judgment must be denied. In determining a motion for summary judgement, the court must look at the proof being offered in the light most favorable to the nonmoving party and then deny the motion when there is:....even arguably any doubt as to the
VEHICLE & TRAFFIC LAW VIOLATIONS DEMONSTRATE LIABILITY
Moreover, there is no requirement to anticipate a cross over collision. Wasson v Szafarski, 6 A.D.3d 1182 (4th Dep't, 2004); Wenck v Zillioux, 246 A.D.2d 717 (3rd Dep't, 1998). The action by Defendant to cross over into Plaintiffs lane violates various Vehicle & Traffic statutes including V&T 1126(a); 1128(a) and 1163(a).
As indicated in Palmer v Palmer, 31 A.D.2d 876 (3rd Dep't, 1969) where there was a crossover, quoting from Rowlands v Parks, 2 N.Y.2d 64 (1956), "Where a defendant is faced with an emergency without opportunity for deliberation, thought or consideration, the ensuing accident may be within the field on nonliability for injury...". Changing "DEFENDANT" to "PLAINTIFF" in the case before the court indicates no liability on the part of the Plaintiff.
Lastly, movant's position is set forth in Gadon v Oliva, 294 A.d.2d 397 (2nd Dep't, 2002) which states: "Cross a double yellow line into the opposing line of traffic, in violation of Vehicle and Traffic Law 1126(a) constitutes negligence as a matter of law, unless justified by an emergency." There has not been any claim by Defendant GERUNDO, the driver, that there was any emergency that caused him to cross over the yellow line into Plaintiffs vehicle.
It appears that movant has mad their case for summary judgment as to liability, and accordingly the burden shifts to the other party to refute and for the court to deny summary judgment.
OPPOSITION CLAIMS THERE WAS A DIFFERENT ACCIDENT
Defendants do not even respond to most of Plaintiffs' moving papers, rather they concentrate on demonstrating there are issues of fact that will preclude the granting of summary judgment. The defense is that there are two different stories as to how the accident occurred. Defendants compare the Westchester Medical Center Emergency Room Reports for the Plaintiff with the Plaintiffs own description of the accident. In the Affidavits, BERNARD BOWMAN claims he was driving along and suddenly, Defendant's car crossed over the yellow line and hit him head on. The ER Reports claims something else happened as follows:
NYSCEF #15 (Exhibit 1 to Opposition) states in relevant part:
PATIENT: BOWMAN, BERNARD
HISTORY OF PRESENT ILLNESS: Is a 50 year old Female TRA UMAMHMEXICO who was the restrained drive involved in a 3-vehicle MVC whereby impacted a vehicle head-on and another vehicle impacted them.
NYSCEF #16 (Exhibit 2 to Opposition) states in relevant part:
PATIENT: BOWMAN, CASSANDRA
HISTORY OF PRESENT ILLNESS: Is a 50 year old Female TRA UMAMH OGDENSBURG who was the restrained passenger involved in a 3-vehicle MVC whereby the driver impacted another vehicle head-on and another vehicle impacted them,
As the court is well aware, when there are triable issues of fact that present themselves in summary judgment motions, invariably such a motion will be denied. The instant Motion was filed barely 2 weeks after the Answer was filed. There has been no discovery. There has been no claim for "serious injury". There are issues of fact that preclude the granting of summary judgment.
By reason of the foregoing it is
ORDERED that the Motion by Plaintiffs seeking Summary Judgment against the Defendants on the issue of liability is denied; and it is further
[THIS SPACE INTENTIONALLY LEFT BLANK]
ORDERED that counsel is directed to complete the attached Preliminary Conference Order and return same to the Court on or before February 1, 2021.
Any relief not specifically granted herein is denied.
The foregoing constitutes the Decision and Order of this Court. Dated: January 5, 2021
Poughkeepsie, NY 12601
Pursuant to CPLR Section 5513, an appeal as of right must be taken within thirty days after' service by a party upon the appellant of a copy of the judgment or order appealed from and written notice of its entry, except that when the appellant has served a copy of the judgment or order and written notice of its entry, the appeal must be taken within thirty days thereof.
When submitting motion papers to Justice Greenwald's Chambers, please do not submit any copies. Submit only the original papers.