Brandt v Zahner
2012 NY Slip Op 31092(U)
April 10, 2012
Sup Ct, Nassau County
Docket Number: 3670/11
Judge: Denise L. Sher
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SHORT FORM ORDER
SUPREME COURT OF THE STATE OF NEW YORK
PRESENT: HON. DENISE L. SHER
Acting Supreme Court Justice
TRIAL/IAS PART 31
JAMES E. BRANDT
Index No. : 3670/11
Motion Seq. No. : 01
Motion Date: 02/08/12
- against -
The followin papers have been read on this motion:
Notice of Motion Affirmation and Exhibits
Affirmation in O osition and Exhibits
Defendant moves , pursuant to CPLR
due to plaintiff s failure to prove a
3212 , for an order granting her summar judgment
case of liability against her. Plaintiff opposes the
This action arises out of a motor vehicle accident that occurred on December 22 , 2010 , at
approximately 6:30 p.
, on LU. Wilets Road, approximately one hundred fifty (150) feet east
of Campbell Parkway, Town of North Hempstead , Nassau County, New York. The accident
involved a 2004 Mercedes owned and operated by defendant and plaintiff, who was a pedestrian
at the time of the incident. Plaintiff commenced the action by the filing and service of a
Summons and Verified Complaint on or about Februar
2011. Issue was joined on or about
It is alleged that the accident occured when plaintiff, a pedestrian , entered the roadway
ofLU. Wilets Road in the middle of the block , from in between parked vehicles , and walked in
front of defendant's vehicle. Defendant contends that , at the time of the accident , her vehicle had
just begun moving from a stopped position at the railroad crossing located near the accident
location and that said vehicle had reached a maximum of approximately twenty miles per hour
while traveling approximately one car length behind the motor vehicle located in front of her
vehicle. Defendant testified at her Examination Before Trial (" EBT" ) that she saw plaintiff take
approximately one to two steps into the roadway and she applied her car brakes before the impact
occurred. Defendant argues that the actions of plaintiff placed defendant in an emergency
situation since said situation "
was not of her own makng as it was unexpected and unanticipated
that Mr. Brandt would enter the roadway from the middle of the block , and enter into the travel
lane where Ms. Zaher was operating her vehicle. " Defendant
fuer contends that "
no issues of fact to inculpate the defendant , RELI ZAHNER, in any way as responsible paries
for this loss , as the plaintiff, JAMES E. BRANDT , canot recall how the subject accident
occurred. Furthermore , the actions of Mr. Brandt placed Ms. Zaher in an emergency situation
which she could not avoid the contact with his body, due to the fact that he entered the roadway
from the middle of the block from in- between parked cars after having exited the train station in
In opposition to defendant's motion , plaintiffs counsel argues that " (tJhe description of
the accident scene by counsel for defendant leaves the court with a highly mistaken
impression.... Earlier in the day Mr. Brandt had taken the Long Island Railroad from the
Albertson station to a Court appearance in Manhattan , and was returing
6:30 p. m... .In
the vicinity where the accident occurred the train tracks proceed in a north south direction
heading towards Oyster Bay. LU. Wilets
crosses the tracks in an east west direction.... there
is a sidewalk on the north side of 1. U. Wilets Road for pedestrians to safely walk east from the
station or west to the station. On the south side ofLD. Wilets there is no sidewalk , so that a
pedestrian seeking to walk east from the tracks on the south side would be jeopardizing his safety
by walking in the roadway and past cars who enter and exit from several parking lots.. .. Mr.
Brandt had parked his car on the south side of1.U. Wilets facing east.. Therefore the only safe
way for him to get from the station to the car would have been to walk eastbound along the
sidewalk on the north side until he was opposite his car and then to cross 1.U.
Wilets. This is
what he did... The place where he parked his car is east of and past the parking lots. There is
nothing legally or practically which prevented him from crossing directly to his car...
pedestrian is entitled to cross in mid block and is not restricted to crossing at an intersection.
Plaintiff's counsel also submits that the place where defendant' s vehicle struck plaintiff is
approximately four hundred (400) feet from the location where defendant' s vehicle had been
stopped waiting for the train to pass. Plaintiffs
adds that " (aJnother misconception one
might get from reading the moving papers was that the plaintiff walked right out in front of her
vehicle from the near curb without warning. However , the defendant's vehicle was traveling
eastbound... and the plaintiffMr. Brandt was crossing from north to south. That means he was
coming from her left and before he could have come into her path he would have had to traverse
the parking lane on the north side ofI.D. Wilets , the westbound lanes oftravel , and that portion
of the east bound lane which would have taken him to the passenger side of her vehicle which
struck him , and where his head made a hole in her windshield.... This is not the case of a step out
into the immediate path of a vehicle.
Plaintiffs counsel also asserts that defendant testified at her EBT that she did not see
plaintiff at any time before actual contact between her car and him.
With respect to defendant' s argument that plaintiff, himself, canot recall how the subject
accident occurred , plaintiffs counsel states that , plaintiff testified at his EBT that he has no
memory of the accident as a result of the head injur
that he sustained
from said accident. Said
affects his abilty to remember the accident.
Plaintiffs counsel contends that there are serious factual issues as to the negligence of the
paries and the
relative degree of their negligence , if any, which must await determination by a
In reply to plaintiffs opposition , defendant argues that "plaintiffs own testimony canot
establish that the defendant , RELI ZAHNER was negligent as a matter of law.... Although Mr.
Brandt was entitled to cross the street in the middle of the roadway, he was required to yield the
right of way to motor vehicles already moving on the roadway, specifically, the defendant's
vehicle. Since he did not yield the right of way, and improperly crossed the roadway, he violated
Vehicle and Traffic Law ~1152(a), and created the emergency situation the defendant was faced
with.... since the plaintiff canot offer any testimony which would demonstrate that the defendant
operated her vehicle in a negligent matter , he has failed to rebut the defendant' prima facie
showing of entitlement to summar judgment as a matter of law. Since the plaintiff canot recall
the facts and circumstances surrounding the subject accident , the plaintiff is unable to rebut the
fact that the accident occured in the middle of the roadway, not near an intersection , where the
plaintiff was required to yield the right of way to the motor vehicles already traveling on the
roadway.... Further , the plaintiff cannot contradict the testimony of the defendant that she was
proceeding on the roadway in a non-negligent maner , at a reasonable rate of speed when the
plaintiff failed to yield the right of way.
Defendant further states that plaintiff has failed to submit expert evidence which
establishes that plaintiff actually lost his memory and the causal connection of that the
defendant' s conduct. Defendant argues that the anexed hospital records
submitted by plaintiffs
counsel are uncertified and , therefore , inadmissible. Defendant argues that " since plaintiff canot
offer any testimony which would demonstrate that the defendant operated her vehicle in a
negligent matter , he was failed to rebut the defendant'
showing of entitlement to
summary judgment as a matter of law.
It is well settled that the proponent of a motion for summar judgment must make a
showing of entitlement to judgment as a matter of law by providing sufficient
evidence to demonstrate the absence of material issues of fact.
Fox Film Corp.
3 N. Y.2d 395 , 165 N.
508 N. Y.S. 2d 923 (1986);
Y.S. 2d 595 (1980);
2d 498 (1957);
Prospect Hospital, 68
City of New York,
49 N. Y.2d 557, 427
Roche 140 A.D.2d 660 528 N. Y.S.2d 1020 (2d Dept. 1988). To
obtain summar judgment , the moving pary 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.
Mfrs. , Inc. 46 N. Y.2d 1065 416 N. Y.S.2d 790 (1979). Such evidence may include deposition
transcripts, as well as other proof anexed to an attorney
Farrell Lines Inc.
If a suffcient
CPLR ~ 3212 (b);
489 N. Y.S.2d 884 (1985).
showing is demonstrated, the burden then shifts to the
non-moving par to come forward with competent evidence to demonstrate the existence of a
material issue of fact , the existence of which necessarily precludes the granting of sumar
judgment and necessitates a trial.
Y.S.2d 595 (1980),
City of New York 49 N. Y.2d 557 , 427
When considering a motion for summar judgment , the fuction of
the court is not to resolve issues but rather to determine if any such material issues of fact exist.
Twentieth Century- Fox Film Corp. 3 N. Y.2d
395 , 165 N. Y.S. 2d 498 (1957),
Mere conclusions or unsubstantiated allegations are insuffcient to raise a triable issue.
See Gilbert Frank Corp.
Federal Ins. Co. 70 N. Y.2d 966 525 N.
2d 793 (1988).
Further, to grant sumar judgment , it must clearly appear that no material triable issue
of fact is presented. The burden on the cour in deciding this tye
is not to resolve
issues of fact or detern1ine matters of credibility, but merely to determine whether-such issues
50 N. Y.2d 247 428 N. Y.S. 2d 665 (1980);
Johnson 147 AD.2d 312 543 N. Y.S. 2d 987 (2d Dept. 1989). It is the existence of an issue , not
its relative strength that is the critical and controllng consideration.
Y. 520 (1931);
Jacobs , 255
Cross 112 AD.2d 62 491 N. Y.S. 2d 353 (1S! Dept. 1985). The
evidence should be construed in a light most favorable to the par moved
Garfield 21 AD.2d 156 249 N. Y.S. 2d
458 (3d Dept. 1964).
Defendant , in her motion , has demonstrated
entitlement to sumar
judgment on the issue of liabilty against plaintiff. Therefore , the burden shifts to plaintiff to
demonstrate anissue of fact which precludes summar judgment.
City of New
After applying the law to the facts in this case , the Cour finds that plaintiff has failed
meet his burden and demonstrate and issue of fact which preclude summar judgment. While the
Court is cognizant of the
charge as set forth in plaintiffs opposition , defendant is
correct in her assertion that plaintiffs request that the
doctrine be applied in the
instant matter must fail since plaintiff failed to submit expert evidence which establishes that
plaintiff actually lost his memory and the causal connection of that to defendant's conduct. The
hospital records anexed as Exhibit A to plaintiff s Affirmation in Opposition were uncertified
and , therefore , inadmissable.
CPLR ~ 4518. Plaintiffs counsel's Affirmation in Opposition
therefore , is uncorroborated and speculative.
The Court finds that plaintiff is unable to rebut defendant' s EBT testimony that she was
proceeding on the subject roadway at the time of the accident in a non-negligent maner , at a
reasonable rate of speed and that it was plaintiff who failed to yield the right of way to
defendant' s oncoming vehicle.
Accordin ly, defendant's motion , pursuant to CPLR ~ 3212 , for an order granting her
summar judgment due to plaintiffs failure to prove
case of liabilty against her
is hereby GRANTED.
This constitutes the Decision and Order of this Cour.
hENISE L. SHER, A.
Dated: Mineola , New York
April 10 ,