Gautreau v Goldberg
Annotate this CaseDecided on May 16, 2017
Supreme Court, Warren County
Thorhan B. Gautreau, Plaintiff,
against
Glenn I. Goldberg, Defendant.
63006
Martin, Harding and Mazzotti, LLP, Albany (Robert S. Bruschini of counsel), for plaintiff.
Bowitch & Coffey, LLC, Albany (Daniel W. Coffey of counsel), for defendant.
Robert J. Muller, J.
This negligence action arose from an automobile/motorcycle collision that occurred in the northbound lane of Lakeshore Drive (a/k/a State Route 9N) at its intersection with Sunnyview Lane, in the Town of Lake George, Warren County, New York. At the time the plaintiff was operating his 1974 Harley Davidson motorcycle - which he had owned and ridden for the past several years - generally northbound on Lakeshore Drive. At the same time, the defendant was operating his 2013 Toyota motor vehicle generally westbound on Sunnyview Lane and intending to turn left onto Lakeshore Drive and, ultimately, to travel generally southbound. The defendant stopped at the intersection and then pulled onto Lakeshore Drive, into plaintiff's lane of travel and directly into the path of the plaintiff's motorcycle. The motorcycle was lawfully registered and inspected and the plaintiff was licensed to operate it. Plaintiff was well acquainted with the location of the crash site as he traveled the same route nearly daily to his workplace as a boatbuilder in Hague, New York.
The testimony submitted in support of the plaintiff's motion for partial summary judgment on liability establishes he was traveling generally northbound on Lakeshore Drive and recalled that there were cars in front and behind him. At Lakeshore's intersection with Sunnyview Lane, the topography is described as generally flat and straight with the plaintiff describing:
"...traveling northbound. I was in between multiple cars. There was a car ahead of me, I can't estimate how far, quite a ways, and vehicles behind traveling northbound, and all of a sudden. I was eating metal. That's basically all I recall [and that there] was no time."The defendant, also well accustomed to this crash site, testified that he drove his 2013 Toyota to the Sunnyview Lane's intersection with Lakeshore Drive and stopped fully for "10-15 seconds" to allow Lakeshore traffic to clear and then attempted to turn left and proceed [*2]southbound on Lakeshore, crossing over Lakeshore's northbound lane without "at any time appreciat[ing] that there was a motorcycle approaching going northbound." The collision occurred entirely within the motorcycle's lane of travel and the defendant concedes in his testimony there was no opportunity for the plaintiff to have taken any evasive action to avoid the collision. Indeed the defendant could not recall seeing plaintiff's motorcycle at any time prior to the accident.
In opposition the defendant urges the Court to recognize there are several issues of fact: that the plaintiff does not have any recollection as to how the accident happened, that neither party can testify whether the motorcycle's speed was appropriate prior to impact, and that there are two eyewitnesses, either of whom might testify as to whether the plaintiff's speed was excessive. Additionally, since the plaintiff testified in his deposition concerning an emergency record admission after a medical flight transport to Albany Medical Center that he tested positive for opioids and marijuana, this is indicative of having driven while impaired. The Court is unpersuaded.
"To prevail on a motion for summary judgment, the moving party must establish prima facie entitlement to judgment as a matter of law by adducing sufficient competent evidence to show that there are no issues of material fact" (Staunton v. Brooks, 129 AD3d 1371, 1372 [2015]; see Gilbert Frank Corp. v. Federal Ins. Co., 70 NY2d 966, 967 [1988]). "Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" (Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986]; see Giuffrida v. Citibank Corp., 100 NY2d 72, 81 [2003]).
Although the proof is viewed in the light most favorable to the nonmovant (see e.g. George v. Albert, 141 AD3d 1004, 1005 [2016])," 'mere conclusions, expressions of hope or unsubstantiated allegations or assertions are insufficient' "to defeat a motion for summary judgment (Gilbert Frank Corp. v. Federal Ins. Co., 70 NY2d at 967 [brackets omitted], quoting Zuckerman v. City of New York, 49 NY2d 557, 562 [1980]). See also, Peltier v. Smith, 53 Misc 3d 1208(A), 48 N.Y.S.3d 266 [2016].
The presence of opiates in the plaintiff's system is well documented as having been introduced by medical personnel following the accident. Similarly, the plaintiff's admission of marijuana use several days beforehand is hardly a substitute for the proximate cause defendant asks this Court to locate.
Therefore, having considered the Affirmation of Robert S. Bruschini, Esq., dated March 2, 2017 together with Exhibits "A" through "G" submitted in support of the motion including a supporting Memorandum of Law dated March 2, 2017; the Affirmation of Daniel W. Coffey, Esq., dated March 20, 2017 together with Exhibits "A" through "D" submitted in opposition to the motion; defendant's Memorandum of Law dated March 20, 2017, submitted in opposition to the motion, a Reply Affirmation of Robert S. Bruschini, Esq., dated March 28, 2017 together with Exhibit "A , and oral argument held before the Court on May 12, 2017, with Robert S. Bruschini, Esq. appearing in support of the motion and Daniel W. Coffey, Esq. appearing in opposition thereto, it is hereby
ORDERED that plaintiff's motion for partial summary judgment on the issue of liability is granted in its entirety; and it is further
ORDERED that any relief not specifically addressed herein has nonetheless been considered and is expressly denied.
The original of this Decision and Order has been filed by the Court together with the Notice of Motion dated March 2, 2017 and the submissions enumerated. Counsel for plaintiff is hereby directed to promptly obtain a filed copy of the Decision and Order for service with notice of entry upon all parties in accordance with CPLR§ 5513.
Dated:May 16, 2017
Lake George, New York
ROBERT J. MULLER, J.S.C.
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