Silverman v City of N.Y.

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Silverman v City of N.Y. 2011 NY Slip Op 33441(U) December 19, 2011 Sup Ct, NY County Docket Number: 110968/08 Judge: Barbara Jaffe 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] SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNTY , PART 7 - Index Number 110968/2008 INDEX NO. JOHNSON, MARVIN LEE MOTION DATE '7LS7 I I i VS. CITY O f NEW YORK SEQUENCE NUMBER : 003 IWULIW .. si Y UI iviuiioni uraer t o Show Cause Answering Affidavlts Replylng Affidavits 2 - Affidavits - Exhibits ... - Exhibits m Cross-Motion: 0 Yes WNo DEC 21 2011 Upon the foregoing papers, it I ordered that this rnotlon s NEW YOHK COUNTY CLERKS OFFICE Dated: 120 r 1 Check if appropriate: 0 DO NOT POST n SUBMIT ORDER/ JUDG. 0 REFERENCE n SETTLE ORDER/ JUDG. [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK : PART 5 X r__________________f____________________---------------~~~~~~---------------~ KENNETH P. SILVERMAN, ESQ., AS TRUSTEE OF THE ESTATE OF MARVIN LEE JOHNSON, Index No. 110968/08 Argued: Motion Seq. No.: Motion Cal. No.: Plaintiff, -against- 9/27/11 003 52 DECISION AND ORDER THE CITY OF NEW YORK and CONTG SEGTJINOT, Defendants. -----lr---r---_______________l_l__r_____------~-------------------- For plaintiff: Robert Ackerman, Esq. Law Ofice of Kobei-t M. Weiss, Esq. 11 Broadway, Suite 1055 New York, NY 10004 212-233-0800 1LED For defendants: Lynn M. Leopold, ACC Michael A. Cardozo 21 C o y oration Counsel 100 Church Street NEW YOHK New York, NY 10007 COUNTY CLERKS oFF'CE,, 2-442-685 1 DEC 2011 By notice oImotioii dated May 30,201 1, plaintiff moves pursuant to CPLR 3212 for an order granting him summary judgment on the issue of liability. Defcndants opposc. I. BACKGROUND On June 11, 2007, at approximately 1 1 :45 pm, plaintiff, who was driving his vehicle east on 125'h Street in Manhattan, was stopped at its intersection with Third Avenue when he was stiuck by a police car driven by dekndant Ncw York City Police Officer Conte Scguinot. (Affirmation of Robert Ackerman, Esq., dated May 30,201 1 [Ackerman Aff.], Exh. A). On or about July 19, 2007, plaintiff served defendants with a notice of claim (Affirmation of Lynn M. Leopold, ACC, in Opposition, dated July 14,201 1 [Leopold Opp. Afi'.], Exh. A), and on or about August 7,2008, he commenced the instant action with the filing of a summons and complaint, asserting claims for negligence arising from the accident (Ackerman Aff., Exh. A). Sometimc thereafter, defendants joined issue with service of their answer. (Id). [* 3] At an examination before trial (EBTj hcld on June 8, 2009, plaintiff testified that belore the accidcnt, he and the four cars in front of him stopped at the intersection even though the light was green in order to pcrrnit a police olficer to drive through the intersection. The o f k e r then lost control of his vehiclc as lie turned lelt onto East 125 h Street, crossing over the double yellow line and hitting the driver s side of plaintiff s vehicle. (Id., Exh. Bj. At an EB P held the same day, Seguinot testified that he was responding to an officer s call for help when the accidciit occurred, and that he was unable to recall how fast hc was driving before reaching the interscction but was not traveling faster than 40 miles per hour, and was unable to recall how last he was driving oncc he reached thc intersection but that he slowed down and waitcd for the traffic along East 12ShStreet to stop, as he had a red light. (Id., Exh. C). Although he estimated that he was driving at approximately five miles per hour when he made the turn and the vehicle fishtailed, he also testified that he was unable to recall whether he was traveling more than 10 miles per hour in doing so, that he never looked at his speedometer, and that he was unable to estimate his speed at the time of impact. (Id.). When asked whether the vehicle fishtailed during thc tui-n or thereafter, he could not rccall, and although he testified that lie does not know what caused it do so, he noted that it was raining and that the pavement was wet. (Id.j. At an EBT held on October 23,2009, New York City Police Sergeant Cassandra Whitaker testified that she was i n Seguinot s vehicle when the accident occurred, that the highest speed at which Scguinot was driving as they approached the intersection was 40 miles per hour, that shc cannot estiinate the speed at which they were traveling as Seguinot made the turn, and that the vehicle started fishtailing as Seguinot made the turn but that thc accident occurred 2 [* 4] beyond the intersection. (Leopold Opp. Aff., Exh. E). 11. CONTENTIONS Plaintiff denies that Seguitiot was engagcd in any of the conduct set i'orth in Vehicle and Traffic Law (V'I'L) 8 1104(b), and thus asserts that his conduct is not privileged, and as he crossed over the double yellow line in violation of V'I'L 5 1126(a), that he was negligent as a matter of law rcgardless or whethcr the paveinent was wet. (Ackerman Af'f.). In opposition, defendants asscrt that Seguinot's conduct was privileged because he ran a red light before thc accident occurred, and even if it was not privileged, that triable issues of fact exist as to whether he was negligent, givcn the wet pavement. (1,eopold Opp. Aff.). In any cvent, they claim that plaintiff's failurc to demonstrate that he sustained a scxious physical injury precludes summary judgment in his favor. (Id.j. In reply, plaintiff maintains that as the accident was not caused by Seguinot running a red light but by hiin losing control o ¬his vehicle, that the wet pavement was foreseeable and does not cxcuse the violation of VTL 5 1 126(a), and that he need not denioiistrate that he sustained a serious physical injury in order to be entitled to summary judgment on the issue of liability. (Affirmation of Robert Ackerman, Esq., in Reply, dated July 25,201 1). 111. ANALYSIS A party secking summary judgment must demonstrate, primu facie, entitlement to judgment as a inattcr of law by presenting sufficient evidence to negate any material issues o f fact. (Winegmdv New I'oork Univ. Med, Ctr., 64 NY2d 851, 853 [19&5]). If the movant meets this burden, the opponent must rebut thc prima fircie showing by subinittiiig admissible evidence, demonstrating thc existence of factual issues that require trial. (Zuckerman v Ct ofNew York, iy 3 [* 5] 40 NY2d 557,562 [ 19801; Bethlehem Steel Corp. v Solow, 51 NY2d 870, 872 [1980]). Otherwise, the motion must be denied, regardless of the sufficiency of the opposition. (Winegrad) 64 NY2d at 853). A. VTL 8 1104 Pursuant to VTL 5 1104(a) and (b), the driver of an authorized cniergency vehicle engaged in an emergency operation is privileged in performing the followiiig acts, as relevant here: 2. Procecd past a steady red signal . . . , but only aftcr slowing down as may be necessary for safe operation; 3. Exceed the maximum speed limits so long as he does not endanger life or property; 4. Disregard regulations governing directions of movement or turning in specified directions. If such conduct causes injury, the driver may only be held liable for it if he failed to drive with due regard for the salety of all persons . . .[, or] reckless disregard for the safety of otlicrs. (VTL 5 1104[e]). If such driver engages in any other injury-causing conduct not specifically enumerated in section 1 104(b), he may be held liable pursuant to ordinary negligence principles. (Kubir v County ($Monroe, 16 NY3d 217 [2011]; Tulishev v City cfNew York,84 AD3d 656 [l Dept 201 11). Here, there is no dispute that Seguinot was driving an authorized emergency vehicle and was engaged in an cmergency operation when the accident occurred. Although he ran a red light and crossed over the double yellow line just before the accident, the parties dispute whether the accident was proximately caused by his conduct or by his subsequent loss of control of the vehicle. Consequently, triable issues of fact exist as to whether his conduct was privileged 4 [* 6] ~ pursuant to VTL 8 1104(b)(2) and/or (4). Moreover, absent any evidence as to the speed liinit in effect at the accident location, and as the testimony offered is inconsistent as to the speed at which Seguinot was driving before and during the turn and whether his vehiclc fishtailed during or after the turn, triable issues of fact also exist as to whether his conduct was privilcged pursuant to VTL 8 1104(b)(3). B. Serious physical iniurv In light or the above dcterrnination, thc parties coiiieiitions as to plaintiffs demonstration of a serious physical injury need not be considered at this point in the action. IV. CONCLUSION Accordingly, it is hereby ORDERED, that plaintiff s motion for summary judgment on the issue of liability is denied. FILE 5

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