Simone v McFarlane

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Simone v McFarlane 2011 NY Slip Op 32261(U) August 4, 2011 Sup Ct, Nassau County Docket Number: 11874/10 Judge: Denise L. Sher Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SCAN SHORT FORM ORDER SUPREME COURT OF THE STATE OF NEW YORK PRESENT: HON. DENISE L. SHER Acting Supreme Court Justice TRIAL/IS PART 32 NASSAU COUNTY ROSE SIMONE and PIETRO SIMONE Plaintiffs - against - No. :11874/10 Motion Seq. No. : 01 05/27/11 Motion Date: Index LORRE McFARLANE and KIRK McFARLANE Defendants. The followinl: papers have been read on this motion: Papers Numbered Notice of Motion Affirmation and Exhibits Affirmation in Opposition Upon the foregoing papers , it is ordered that the motion is decided as follows: Plaintiffs move , pursuant to CPLR 3212 , for an order granting parial sumar against defendants on the issue of liabilty. Defendants oppose the motion. This action arises from a motor vehicle accident which occured on April 17 , 2010 , at approximately 12:37 p. , on West John Street , near Alpha Plaza and Cantiague Park Hicksvile , Town of Oyster Bay, Nassau County, New York. The accident involved a 2003 Honda operated by defendant Lorraine McFarlane and owned by defendant Kirk McFarlane and a 2002 Toyota owned and operated by plaintiff Rose Simone. Plaintiffs commenced the action by the filing and service of a Sumons and Verified Complaint on or about June 21 , 2010. Issue was joined on or about July 8 , 2010. [* 2] Briefly, it is plaintiff Rose Simone s contention that , on the date and time in which the accident occured , her vehicle was traveling in an westbound direction on West John Street. Defendant Lorraine McFarlane was also traveling on West John Street in an eastbound direction. According to plaintiff Rose Simone s testimony at her Examination Before Trial EBT" ), while she was traveling westbound on West John Street, she was stopped for a red traffic light at its intersection with Cantiague Park. According to plaintiff Rose Simone , when the light tured green she proceeded to drive straight ahead. At that same time , defendant Lorraine McFarlane suddenly and unexpectedly made a left tu from the eastbound side of West John Street towards the entrance ofCantiague Park. Plaintiff Rose Simone testified that she applied the brakes and tried to swerve to the right, but defendants ' vehicle struck plaintiff Rose Simone s vehicle , pushing plaintiff Rose Simone s vehicle into a vehicle that was stopped waiting to exit Cantiague Park. Plaintiffs fuher submit that defendant Lorraine McFarlane testified at her EBT that she did not see plaintiff Rose Simone s vehicle at any point until the actual impact itself occured. In support of their arguents , plaintiffs provided an affidavit of Francesca Simone , daughter of plaintiffs , who was a front seat passenger in the vehicle operated by plaintiff Rose Simone. With respect to the subject accident, Francesca Simone states amongst other things ( w Je were stopped for approximately 15 seconds unti the light tured green. I observed a car stopped for the same red light facing eastbound on West John Street. When the light tued green my mother proceeded approximately 1 to 2 car lengts into the intersection when suddenly and without waring the other vehicle made a left tur towards the entrance of Cantiague Park. My mother slammed on the brakes and tried to swerve to the right to avoid the other vehicle. However , the front left of the other vehicle struck the driver side of [* 3] our vehicle and pushed our vehicle into a third vehicle that was stopped waiting to exit Cantiague Park." Plaintiff also submitted an affidavit from Robert Rothstein , who was an independent witness to the subject accident. Mr. Rothstein states , " I was traveling in the left lane of West John Street next to Cantiague Park. In front of my vehicle was a 2003 Honda. There was a 2002 Toyota traveling westbound on West John Street as well. The 2002 Toyota proceeded to drive straight in the westbound direction on West John Street. At the same time , the 2003 Honda which was in front of me tured left heading into the drveway for Cantiague Park. All of the vehicles had green lights. The 2003 Honda failed to yield the right of way to the 2002 Toyota which was traveling straight in the opposite direction of West John Street. The 2003 Honda and . the 2002 Toyota collded pushing the 2002 Toyota into a third vehicle which was fuly stopped and waiting at the light to exit the Cantiague Park driveway. Plaintiffs submit that defendant Lorraine McFarlane violated New York State Vehicle and Traffic Law (" VTL") ~ 1141 by making a left tu directly into plaintiff Rose Simone vehicle and thereby failed to yield the right of way of plaintiff Rose Simone. Plaintiffs argue that defendant Lorraine McFarlane was negligent in failing to see that which though the proper use of her senses should have been seen. In opposition to the instant motion , defendants argue that plaintiffs have failed to eliminate an issue offact as to whether plaintiff Rose Simone failed to act reasonably under the circumstances and failed to see that which she should have seen thought the proper use of her senses. Defendants submit that plaintiff Rose Simone admitted that she only observed defendants ' vehicle a split second before the accident happened even though plaintiff Rose [* 4] See Simone testified that she was stopped at a red light just before the accident happened. Plaintiffs ' Affrmation in Support Exhibit F. Defendants add that plaintiffs ' daughter , Francesca Simone , stated in her affidavit that she observed defendants ' vehicle stopped facing the opposite direction at the same traffic light where her mother was stopped and that non-par Robert Rothstein, stated in his affdavit that both defendants ' witness and plaintiff Rose Simone vehicles entered the intersection at the same time. Furhermore , the points of impact to each of the vehicles was the front driver s side. Defendants therefore argue that the plaintiff, (iJt is incredible that Rose Simone , did not observe the McFarlane vehicle enter the intersection under . these circumstances and that there was nothing she could have done to avoid the subject accident. For example , if the plaintiff, Rose Simone , had actually observed the McFarlane vehicle and not accelerated as soon as the light tured green, this accident may have been avoided. " Defendants claim that the failure of plaintiff Rose Simone to observe the defendants vehicle more than a " split second" before the accident raises an issue of the plaintiff Rose Simone s own negligence. It is well settled that the proponent of a motion for sumar prima facie judgment must make a showing of entitlement to judgment as a matter of law by providing sufficient See Silman v. Twentieth evidence to demonstrate the absence of material issues of fact. Century- Fox Film Corp. 3 N. 2d 395 , 165 N. Y.S. 2d Hospital 68 N. Y.2d 320 508 N. 557 427 N. Y.S. 2d 595 (1980); S.2d 923 (1986); Alvarez v. Prospect 498 (1957); Zuckerman v. City of New York, 49 N. Y.2d Bhatti v. Roche 140 A.D. 2d 660 528 N. Y.S. 2d 1020 (2d Dept. 1988). To obtain sumar judgment, the moving par must establish its claim or defense by tendering sufficient evidentiar proof, in admissible form , sufficient to warant the cour , as a matter of law , to direct judgment in the movant' s favor; See Friends of Animals, Inc: [* 5] Associated Fur Mfrs. , S.2d 790 (1979). Such evidence may Inc. 46 N. Y.2d 1065 416 N. include deposition transcripts , as well as other proof anexed to an attorney CPLR See s affrmation. Olan v. Farrell Lines Inc. 64 N. Y.2d 1092 489 N. Y.S. 2d 884 (1985). 3212 (b); If a suffcient showing is demonstrated , the burden then shifts to the prima facie non-moving par to come forward with competent evidence to demonstrate the existence of a material issue of fact , the existence of which necessarly precludes the granting of sumar See Zuckerman judgment and necessitates a trial. Y.S. 2d 595 (1980), v. 2d 557 , 427 City of New York 49 N. When considering a motion for sumar judgment, the fuction supra. of the court is not to resolve issues but rather to determine if any such material issues of fact exist. (1957), supra. issue. v. See Silman Twentieth Century- Fox Film Corp. 3 N. Y.2d 395 , 165 N. Y.S. 2d 498 Mere conclusions or. unsubstatiated allegations are insufficient to raise a triable See Gilbert Frank Corp. v. Federal Ins. Co. 70 N. Y.2d 966 , 525 N. Y.S. 2d 793 (1988). Furer, to grant sumar judgment , it must clearly appear that no material triable issue of fact is presented. The burden on the cour in deciding ths tye of motion is not to resolve issues of fact or determine matters of credibilty, but merely to determine whether such issues exist. See Barr v. 50 N. Y.2d 247 428 N. Y.S.2d 665 (1980); Albany County, Daliendo Johnson 147 AD. 2d 312 543 N. Y.S. 2d 987 (2d Dept. 1989). It is the existence of an issue , not See Barrett v. Jacobs , 255 its relative strengt that is the critical and controllng consideration. Y. 520 (1931); Cross v. Cross 112 A. D.2d 62 , 491 N. Y.S.2d 353 (1 st Dept. 1985). The evidence should be construed in a light most favorable to the par moved Garfield 21 AD. 2d 156 249 N. against. See Weiss S.2d 458 (3d Dept. 1964). Plaintiffs , in their motion , have demonstrated prima facie entitlement to parial sumar judgment as a matter of law on the issue of liability against defendants by establishing that [* 6] defendant Lorraine McFarlane violated VTL ~ 1141 in making a left tu when it was not reasonably safe to do so , directly into the path of plaintiff Rose Simone s oncoming vehicle which was lawflly present in the intersection. Since plaintiff Rose Simone had the right of way, she was entitled to assume that defendant Lorraine McFarlane would obey the traffic laws requiring her to yield to plaintiff Rose Simone 924 N. Y.S.2d 802 (2d Dept. 2001); Palomo v. s vehicle. See Ahern v. Lanaia 85 AD.3d 696 Pozzi 57 AD.3d 498 869 N. S.2d 153 (2d Berner v. Koegel 31 A. D.3d 591 818 N. Y.S. 2d 89 (2d Dept. 2006). Furhermore Dept. 2008); based upon the facts presented before it , the Cour finds that defendant Lorraine McFarlane was negligent with respect to the subject accident because she failed to see that which , through proper use of her own senses , she should have seen; to wit , plaintiff Rose Simone s vehicle in the intersection. v. See Toddv. Godek 71 AD.3d 872 , 895 N.Y.S. 2d 861 (2d Dept. 2010); Berner Koegel, supra. Since plaintiffs have demonstrated prima facie entitlement to parial sumar judgment the burden shifts to defendants to demonstrate an issue of fact which precludes sumar See Zuckerman v. City of New York 49 N. Y.2d 557 , 427 N. Y.S.2d 595 (1980). judgment. The Cour finds that defendants have failed to raise a trable issue of fact since the evidence in the record does not support defendants ' speculative assertions of comparative fault on the par of plaintiff Rose Simone. See Ahern v. Lanaia 85 AD.3d 696 924 N. S.2d 802 (2d Dept. 2011). Based upon the record , the Cour concludes that , when defendant Lorraine McFarlane began her left tu , plaintiff was either in the intersection or so close to it that she was not comparatively negligent in the happening of subject accident , thus precluding the imposition of liabilty on plaintiff Rose Simone. Defendant Lorraine McFarlane testified at her EBT that she never saw plaintiff Rose Simone s vehicle before the collsion occured , but it is [* 7] evident that plaintiffs vehicle was already in the intersection at the time of the collsion and had the right of way. Therefore , based upon the foregoing, plaintiffs ' motion, pursuat to CPLR ~ 3212 , for an order granting parial summar judgment as to the liabilty against defendants is hereby GRANTED. This matter shall proceed with the issue of damages only. All paries shall appear for Trial in Nassau County Supreme Cour , Differentiated Case Management Par (DCM), at 100 Supreme Cour Drive , Mineola, New York, on August 25 2011 , at 9:30 a. This constitutes the Decision and Order of this Cour. DENISE L. SHER, A. ENTERED Dated: Mineola, New York August 4 2011 AUG 08 2011 NASSAU COUNTY COUNTY CLERK' S OFFICE

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