Gershowitz v Cano

[*1] Gershowitz v Cano 2006 NY Slip Op 52095(U) [13 Misc 3d 1232(A)] Decided on September 13, 2006 Supreme Court, Orange County Horowitz, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on September 13, 2006
Supreme Court, Orange County

Barry Gershowitz, as Administrator of the Estate of Sarah Gershowitz and Christopher Clifton, as Parent and Natural Guardian of Louis Clifton, an Infant, Plaintiffs,

against

William E. Cano and Jenna L. Cano, Defendants.



8326/2004

Lawrence I. Horowitz, J.

Plaintiffs move for summary judgment pursuant to CPLR § 3212 on the issue of liability. Defendants oppose the motion asserting that questions of fact relating to whether or not Plaintiff's decedent was comparatively negligent preclude the relief Plaintiffs seek.

The undisputed facts of the underlying motor vehicle accident were that on September 8, 2003Sarah Gershowitz was a passenger in a car operated by Defendant Jenna L. Cano (hereinafter "Cano"). At approximately 11:15pm, on a road known as Route 17M, in the Town of Blooming Grove, Cano lost control of the vehicle, leaving the roadway and striking a tree, thereby resulting in the death of the Plaintiff's decedent Sarah Gershowitz. At her examination before trial, Cano testified: that the roads were dry; the weather was "fine"; she was aware of the speed limit; she drove in excess of the speed limit just prior to the accident; and just prior to the accident she had consumed Marijuana. There were no other cars involved in the accident. The foregoing allegations are not only testified to by Cano, but are also contained in Plaintiffs' complaint and in Plaintiffs' attorney's affirmation in support of the within motion for summary judgment.

For purposes of this motion, Defendants do not contest the foregoing factual allegations. But in opposition to the within motion, Cano testifies to additional facts no offered by Plaintiffs. To wit, Cano testified that after pulling her car off to the side of the road, she, along with the Plaintiffs' decedent and the two (2) other passengers in the vehicle, James McMahon and Daniel Scott, all shared and smoked marijuana in the presence of one another. After smoking the marijuana together, Cano pulled her car back onto the roadway and continued driving.

There is no allegation and no dispute that Sarah Gershowitz voluntarily and willingly was [*2]a passenger in the vehicle operated by Ms. Cano. There is no evidence offered that Sarah Gershowitz raised an objection to Ms. Cano's operation of the automobile.

In the case before the Court, there is uncontroverted evidence that on a clear night while driving on a dry roadway, Cano was speeding, lost control of the vehicle, leaving the roadway and striking a tree, thereby resulting in the death of the Plaintiff's decedent Sarah Gershowitz. There is evidence that no other motor vehicle was involved in the accident. But there is also evidence that Ms. Cano smoked an illegal substance just prior to the accident. There is testimony that Sarah Gershowitz was aware that Ms. Cano had smoked marijuana. There is no evidence that Sarah Gershowitz protested Ms. Cano's conduct or request that she be let out of the car.

"A passenger in a vehicle is required to exercise reasonable care for his or her own safety." Posner v. Hendler, 302 AD2d 509, 755 NYS2d 255 (2nd Dept., 2003), citing, Nelson v. Nygren, 259 NY 71(1932) and Stewart v. Taylor, 193 AD2d 1078 (4th Dept., 1993). Whether, under the circumstances of this case, Sarah Gershowitz's failure to protest Ms. Cano's conduct or to request that she be let out of the vehicle constitutes comparative negligence is a question of fact that cannot be resolved on a motion for summary judgment. Posner v. Hendler, supra .

Defendants have raised comparative negligence as a defense, and clearly factual issues remain with respect to that defense.

On account of the foregoing, Plaintiffs have established negligence as a matter of law. As such the court will grant summary judgment on the issue of negligence but declines to do so as to liability as questions of fact as to comparative negligence have arisen and cannot be resolved on a motion for summary judgment. See, Posner v. Hendler, supra , and Jorif v. Jorif, 188 AD2d 449, 591 NYS2d 48 (2nd Dept., 1992).

WHEREFORE, based on the foregoing, it is

ORDERED that the Plaintiffs' motion for summary judgment on the issue of liability is DENIED; and it is

ORDERED that Plaintiffs are GRANTED summary judgment that Defendant Jena L. Cano was negligent as a matter of law.

The Parties are directed to appear for conference on October 13, 2006.

The foregoing constitutes the decision of this Court.

Dated: Goshen, New York

September 13, 2006

_____________________________________HON. LAWRENCE I. HOROWITZ

SUPREME COURT JUSTICE