Opinion
Index No. EF001408-2019
10-08-2020
BERNICE YOUNG, PLAINTIFF, v. JESSANDRA BJORK, LAURA BJORK, (ANA MARIA MONTANO & HARRY THOMAS) removed DEFENDANTS.
Unpublished Opinion
Motion Date: 7/29/20
DECISION & ORDER
MARIA S. VAZQUEZ-DOLES, J.S.C.
The following papers numbered 1-10 were read on Plaintiffs motion for partial summary judgment on the issue of liability;
Notice of Motion /Affirmation of Richard Bernsley, Esq./Exhibits A-F........... 1-8
Affirmation of Tara McCoy-Evans, Esq.......................................................................... 9
Affirmation in Reply of Richard Bernsley, Esq.............................................................. 10
This is an action in negligence arising out of a motor vehicle collision which occurred on November 21, 2018 in the parking lot of 360 Route 21 IE, Town of Wallkill, New York, at approximately 7:10pm. Issue was joined on or about April 1, 2019 by service of a verified answer. On March 11, 2020 Plaintiff filed a discontinuance as to Defendants Ana Montano and Harry Thomas. Plaintiff alleges that she was a passenger in a taxi (2100 Ford) owned by Defendant Thomas and driven by Defendant Montano when Defendant Jessandra Bjork disregarded a stop sign and collided with Plaintiff Defendant Laura Bjork is the owner of the 2011 Kia vehicle.
By the instant motion, Plaintiff seeks partial summary judgment on the issue of liability, and a determination that Jessandra Bjork was 100% responsible for the accident. In support of the motion, Plaintiff submits an Affidavit from Sandra Glover, a front seat passenger of the taxi who witnessed the event. Ms Glover avers that the Bjork vehicle advanced to the intersection, failed to stop at the stop sign, and then proceeded to make a left turn. Plaintiff further submits the transcript testimony of Montano, which confirms that Ms Bjork failed to stop at the stop sign and hit the rear passenger side of the taxi before driving off. Ms Bjork was later called to the Town of Wallkill Police department as part of the accident investigation and was cited for Failure to Yield and Disregarding a traffic control device. Plaintiff submits a certified copy of the accident report as proof of this investigation. Plaintiff argues that she is an innocent passenger, entitled to summary judgment, and was in no way at fault for the happening of the accident. Plaintiff relies upon Romaine v City of New York, 177 A.D.3d 590[2nd Dept. 2019] in support of her argument.
Defendant opposes this motion and argues that there are issues of fact which preclude summary judgment. Defendant points to her deposition testimony at pages 9-22 wherein she testified that she stopped at the stop sign for 5 seconds before moving forward. In essence, Defendant argues that the driver of the Taxi may have some culpability so summary judgment should not be granted.
Upon a review of all the papers submitted, Plaintiffs motion must be granted. Plaintiff has made a. prima facie showing of entitlement to summary judgment as a matter of law, and Defendants have failed to raise a triable issue of fact. The issue of failing to stop and failing to yield the right of way was squarely addressed in the case of Rahaman v Abodeledhman, 64 A.D.3d 552, 553 [2d Dept 2009]. In that case, the Court held, "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 is negligent as a matter of law" (citing Klein v Crespo, 50 A.D.3d 745, 745 [2008])." Rahaman v Abodeledhman, 64 A.D.3d 552, 553 [2d Dept 2009]. The Court there further added, "[a] driver is required to see that which through proper use of his or her senses he or she should have seen, and a driver who has the right-of-way is entitled to anticipate that the other motorist will obey the traffic law requiring him or her to yield (id at 745-746)". Rahaman v Abodeledhman, 64 A.D.3d 552, 553 [2d Dept 2009]. Thus Defendant's arguments that she stopped at the stop sign for 5 seconds is not sufficient to deny summary judgment to the Plaintiff, because Defendant also did not yield the right of way
Furthermore, the Plaintiff in this instant action was an innocent passenger in the vehicle which was hit by Defendant. The Court in Romaine v City of New York addressed this issue and held that Supreme Court should have granted summary judgment in favor of Plaintiff when it stated;
"The Supreme Court should not have denied the plaintiffs' motion, in effect, for summary judgment against the defendants on the issue of whether the injured plaintiff was at fault in the happening of the accident. The right of an innocent passenger to summary judgment on the issue of whether he or she was at fault in the happening of an accident is not restricted by potential issues of comparative negligence as between two defendant drivers (see CPLR 3212 [g]; Jung v Glover, 169 A.D.3d 782, 783 [2019]; Phillip v D&D Carting Co., Inc., 136 A.D.3d 18, 24-25 [2015]; Anzel v Pistorino, 105 A.D.3d 784, 786 [2013]; Medina v Rodriguez, 92 A.D.3d 850, 850 [2012]; Garcia v Tri-County Ambulette Serv., 282 A.D.2d 206, 207 [2001]; Silberman v Surrey Cadillac Limousine Serv., 109 A.D.2d 833, 833-834 [1985]). Here, the plaintiffs made a prima facie showing of entitlement to summary judgment on their motion, and in opposition, the defendants failed to raise a triable issue of fact (see generally Alvarez v Prospect Hosp., 68 N.Y.2d 320, 324 [1986]). It is uncontested that the injured plaintiff was a passenger seated in the rear passenger seat of the Freed vehicle. While both drivers involved in the accident submitted affidavits in which each maintained that they were free from fault, neither driver suggested that the injured plaintiff bore any fault in the happening of the accident (see Phillip v D&D Carting Co., Inc., 136 A.D.3d at 25)." Romain v City of New York, 177A.D.3d 590, 591 [2d Dept 2019].
Based upon the above, it is hereby
ORDERED that Plaintiffs motion for summary judgment on the issue of liability is granted, and it is further
ORDERED that upon review of the record, Plaintiff, Bernice Young was an innocent passenger and bore no "fault in the happening of the accident. (Citation omitted)". Romain v City of New York, 177 A.D.3d 590, 591 [2d Dept 2019], and it is further
ORDERED that all parties appear as previously scheduled for a virtual settlement conference on October 22, 2020 at 3:45 p.m..
The foregoing constitutes the Decision and Order of the Court.