Campbell v Tiberi

[*1] Campbell v Tiberi 2009 NY Slip Op 50614(U) [23 Misc 3d 1107(A)] Decided on March 9, 2009 Supreme Court, Richmond County McMahon, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 9, 2009
Supreme Court, Richmond County

Mary Campbell, Plaintiff(s),

against

David Tiberi and ROSEMARIE D. TIBERI, Defendant(s).



102759/2007

Judith N. McMahon, J.

On August 5, 2005, the plaintiff allegedly sustained personal injuries after the vehicle she was operating collided with the vehicle operated by defendant David Tiberi and owned by defendant Rosemarie D. Tiberi. The accident occurred on Crystal Avenue in Staten Island, New York. It is undisputed that at the time of the accident the plaintiff was proceeding down Crystal Avenue when defendant's vehicle backed out of a driveway and the two vehicles collided. The collision sent defendant's vehicle into a parked car. Plaintiff thereafter commenced this action on or about July 10, 2007. After issue had been joined, discovery was completed and the plaintiff's is now moving for summary judgment on liability on the ground that defendants violated New York Vehicle and Traffic Law § 1211.

New York Vehicle and Traffic Law § 1211(a) provides that "[t]he driver of a vehicle shall not back the same unless such movement can be made with safety and without interfering with other traffic." The right-of-way in such a situation is given to the driver proceeding down the roadway, in other words, "[t]he driver of a vehicle about to enter and/or cross a roadway from any place other than another roadway shall yield the right of way to all vehicles approaching on the roadway to be entered or crossed" (NY Veh. & Traffic Law § 1143; Jacino v. Sugarman, 10 AD3d 593, 596 [2d Dept., 2004][holding that drivers with the right of way are entitled to assume other cars will obey traffic laws and yield]). However, "[a] driver who has the right-of-way can be held negligent for failing to take evasive action" but it must be shown that the right-of-way "driver must have [had] sufficient time to act and the conduct of the other driver must be foreseeable. The driver who has the right-of-way is entitled to anticipate' compliance with the obligation to yield" (Pena v. Santana, 5 AD3d 649, 650 [2d Dept. 2004][internal citations omitted]; Spivack v. Erickson, 40 AD3d 962, 963 [2d Dept., 2007]; Fernet v. Morvillo, 30 AD3d 670, 672 [3d Dept., 2006][finding that speculative assertions regarding the time the right-of-way driver had were insufficient to defeat a motion for summary judgment]).

Here, the plaintiff has successfully established her prima facie entitlement to summary judgment as a matter of law (Alvarez v. Prospect Hosp., 68 NY2d 320 [1986]; Winegrad v. NY Univ. Med. Ctr., 64 NY2d 851 [1985]; White v. Gooding, 21 AD3d 485 [2d Dept., 2005]). The plaintiff testified that she saw defendant's car about fifteen feet away from her car and the resulting impact occurred "instantly", providing no time to take evasive action. In a similar case [*2]the Court found summary judgment was appropriate in favor of the driver where he was proceeding down a street and collided with a truck backing out of a driveway (Pena v. Santana, 5 AD3d 649, 650 [2d Dept., 2004]). The Court found that the driver "had no reason to anticipate that a truck would back out of a driveway across the northbound lane of traffic and into the southbound lane of traffic without yielding the right-of-way" and granted summary judgment finding that the failure on the right-of-way driver's part to take evasive action was mere speculation (id.).

In opposition, the defendant has failed to raise a triable issue of fact (Alvarez v. Prospect Hosp., 68 NY2d 320 [1986]; Winegrad v. NY Univ. Med. Ctr., 64 NY2d 851 [1985]). Defendant's contentions that questions of fact exist as to whether the plaintiff could have used evasive action to avoid the accident is mere speculation and insufficient to defeat a motion for summary judgment (Pena v. Santana, 5 AD3d at 650 [holding that "the question of whether the appellant could have taken evasive action involves pure speculation insufficient to defeat his motion for summary judgment"]; Jacino v. Sugarman, 10 AD3d at 666 [finding that defendant's contention that plaintiff "had time to brake and blow her horn, [that] she also had time to contemplate other evasive action such as safely swerving into another lane is pure speculation" and insufficient to defeat summary judgment]. There is no evidence presented that the plaintiff had time to take evasive action and as such summary judgment on liability is appropriate in favor of the plaintiff.

Additionally, the court notes that New York has long recognized the emergency doctrine whereby "when a person is faced with a sudden and unexpected circumstance which leaves little or no time for thought, deliberation, or consideration,' he or she will not be held liable upon a finding that he or she took reasonable and prudent [action] in the emergency context'" (Ward v. Cox, 38 AD3d 313, 314 [1st Dept., 2007]; Bello v. New York City Transit Auth., 12 AD3d 58 [2d Dept., 2004]). While generally, determinations of reasonableness are left up to the jury, "summary resolution is possible when the individual presents sufficient evidence to support the reasonableness of his or her actions and there is no opposing evidentiary showing sufficient to raise a legitimate issue of fact on the issue" (id.). Here, plaintiff's awareness of the vehicle "instantly" before impact clearly establishes an emergency situation where she was unable to avoid. Further, defendant has failed to raise any issues of fact, beyond mere speculation sufficient to defeat a motion for summary judgment.

Accordingly, it is,

ORDERED that the plaintiff's motion for summary judgment on the issue of liability is hereby granted, and it is further

ORDERED that the case shall proceed on the issue of damages only, and it is further

ORDERED that the Clerk enter Judgment accordingly.

E N T E R,

Dated: March 9,2009___________________________________

Hon. Judith N. McMahon

Justice of the Supreme Court