Rolfs v Medina

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Rolfs v Medina 2018 NY Slip Op 34237(U) December 31, 2018 Supreme Court, Westchester County Docket Number: Index No. 59515/2017 Judge: Sam D. Walker Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. FILED: WESTCHESTER COUNTY CLERK 01/07/2019 11:18 AM NYSCEF DOC. NO. 79 INDEX NO. 59515/2017 RECEIVED NYSCEF: 01/07/2019 II commence the statutory To commence the statutory time for for appeals of right time appeals as of right (CPLR 5513[a]), 5513[3]), you are (CPLR you are advised serve a copy copy advised to serve of this this order; order; with notice of with notice of of entry, entry, upon upon all parties. parties. ,I , SUPREME COURT COURT OF THE THE STATE STATE OF NEW NEW YORK SUPREME YORK COUNTY WESTCHESTER COUNTY OF WESTCHESTER PRESENT: HON. HON. SAM D. WALKER, WALKER, J.S.C. J.S.C. PRESENT: 11 ___________ Iit _______________________________________________ x -----------~-----------------------------------------------x MELINDA: MELINDA ROLFS, ROLFS, DECISION & ORDER ORDER DECISION Index Index No. 59515/2017 59515/2017 Plaintiff, Plaintiff, Seq. # 3 Seq.# -against-against-i.i JOSEPH MEDINA and ARILEYDA ORTIZ, JOSEPH MEDINA ARILEYDA M. ORTIZ, · Defendant(s). Defendant(s). - - - - - - - ', - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x JOSEPH rylEDINA ARILEYDA M. ORTIZ, JOSEPH IYlEDINA and ARILEYDA ORTIZ, Third-Party Plaintiff, Plaintiff, ·. Third-Party -against-against- MARK MARK ROLFS, ROLFS, Third-Party Defendant. Defendant. Third-Party - - - - - - - -~-- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x ' The papers numbered numbered 1 to 18 were Plaintiff's motion motion for summary The following following papers were read on Plaintiff's for summary judgment issue of liability: liability: judgment pn the issue Notice of Motion/Affirmation Motion/Affirmation in Support/Exhibits Support/Exhibits A-H Notice Affirmaiion Opposition/Exhibits A Affirmation in Opposition/Exhibits Reply Affirmation/Exhibits A-D Reply Affirmation/Exhibits A-D 11 [* 1] 1 of 8 1-10 11-12 11-12 13-17 13-17 FILED: WESTCHESTER COUNTY CLERK 01/07/2019 11:18 AM NYSCEF DOC. NO. 79 INDEX NO. 59515/2017 RECEIVED NYSCEF: 01/07/2019 Factual Factual and Procedural Procedural Background Background The plaintiff, commenced this this action action on June June 23, 2017, The plaintiff, Melinda Melinda L. L. Rolfs ("Rolfs") ("Rolfs") commenced 23,2017, allegedly sustained sustained in a motor vehicle accident accident which which to recover recover damages damages for injuries injuries she allegedly motor vehicle occurred on April Medina ("Medina") ("Medina") made made a left left turn at the occurred April 23, 2017, 2017, when when Joseph Joseph Medina intersection of North North Goodwin Goodwin Avenue East Main Street Street in Elmsford, Elmsford, New New York, Avenue and East York, and intersection collided with the plaintiff's vehicle passenger. the plaintiff's vehicle in which which she was was a passenger. collided The plaintiff now files instant motion motion for an order order pursuant pursuant to CPLR CPLR 3212 3212 The plaintiff files the instant granting summary summary judgment against the defendants defendants on the issue issue of liability; liability; pursuant pursuant to judgment against granting CPLR 1412, dismissing dismissing the defendants Medina and Arileyda Ortiz's first CPLR defendants Joseph Joseph Medina Arileyda Ortiz's first and fourth affirmative defenses; defenses; and setting matter down down for trial on the issue issue of damages. damages. fourth affirmative setting the matter The third-party third-party defendant, cross-motion, which which by Decision The defendant, Mark Mark Rolfs filed a cross-motion, Decision and Order Order dated September September 18, 2018, 2018, this Court (Ruderman, untimely and denied. this Court (Ruderman, J.) found found to be untimely denied. dated The plaintiff argues that that no genuine genuine question question of fact fact exists The plaintiff argues exists as to Medina's Medina's negligence negligence and that that his negligence negligence is the sole proximate proximate cause cause of of the accident accident because because turn into the path of oncoming vehicle vehicle when when it was was hazardous Fuentes Fuentes made made a left turn of an oncoming hazardous to causing a collision collision while while he had an unobstructed unobstructed view do so causing view of of oncoming oncoming traffic traffic in violation violation Traffic Law §1141. 31141. ln In opposition, defendants argue issue of Vehicle Vehicle & Traffic opposition, the defendants argue that that a genuine genuine issue of material material fact remains as to whether exercised reasonable reasonable care of fact still remains whether or not Rolfs exercised care to avoid collision and whether Rolfs' vehicle excessive speed. the collision whether Rolfs' vehicle was was travelling travelling at an excessive speed. The defendants also also argue argue that Rolfs' motion motion is procedurally procedurally defective because she failed defendants that Rolfs' defective because failed to include the pleadings pleadings of of the third-party third-party action, action, the depositions depositions were signed and the were not signed include police report report is uncertified uncertified and contains contains hearsay. hearsay. police 2 [* 2] 2 of 8 FILED: WESTCHESTER COUNTY CLERK 01/07/2019 11:18 AM NYSCEF DOC. NO. 79 INDEX NO. 59515/2017 RECEIVED NYSCEF: 01/07/2019 review of the the facts facts and relevant relevant case case law, the Court Court hereby hereby grants Rolfs' Upon review grants Rolfs' motion for the issue issue of liability, liability, but denies denies that that portion portion of the motion motion judgment on the motion for summary summary judgment to dismiss defenses. dismiss the defendants' defendants' first first and fourth fourth affirmative affirmative defenses. In support support of the the motion, deposition and Medina's motion, Rolfs submitted submitted her deposition Medina's deposition, deposition, police report, report, and copies copies of the pleadings pleadings of the plaintiff's plaintiff's action. a police action. Discussion Discussion for summary judgment bears A party party moving moving for summary judgment bears the initial initial burden burden of affirmatively affirmatively demonstrating entitlement to summary summary judgment matter of (see Winegrad Winegrad v demonstrating its entitlement judgment as a matter of law (see New Alvarez v Prospect New York Univ. Med. Ctr., 64 NY2d NY2d 851, 853 [1985]; [1985]; Alvarez Prospect Hospital, Hospital, 68 NY2d NY2d 320, 324 [1986]). [1986]). To demonstrate demonstrate its entitlement entitlement to relief, the moving moving party party must must come forward evidentiary proof proof that establishes the absence absence of any any material material issues issues come forward with evidentiary that establishes of McDonald v Mauss, Mauss, 38 AD3d Dept 2007]). Once the moving moving of fact, (see McDonald AD3d 727, 728 [2d Dept 2007]). Once party established its prima facie entitlement summary judgment, judgment, the burden shifts party has established prima facie entitlement to summary burden shifts to the opposing opposing party party to submit proof in admissible form to establish establish material material submit evidentiary evidentiary proof admissible form issues of (see Alvarez, NY2d at 324; Winegrad, Winegrad, 64 NY2d NY2d at 853). issues of fact fact (see Alvarez, 68 NY2d The assert that that the plaintiff's plaintiff's motion because she The defendants defendants assert motion should should be dismissed dismissed because of the third-party third-party pleadings pleadings with with her motion. failed to include failed include a copy copy of motion. However, However, "[n]otwithstanding that CPLR 3212(b) 3212(b) requires requires that that motions motions for for summary summary judgment judgment be "[n]otwithstanding that CPLR of the pleadings, stage of an supported by a copy supported copy of pleadings, CPLR CPLR 2001 permits permits a court, court, at any stage action, to '"disregard "'disregard a party's party's mistake, mistake, omission, omission, defect, irregularity if a substantial defect, or irregularity substantial action, party is not not prejudiced'" prejudiced'" (see (see Wade v Knight Knight Transp., Inc., 151 AD3d right of of a party AD3d 1107, 1109 2017]). Here, Here, the record record is sufficiently complete and the defendants/third-party defendants/third-party [2dfd Dept 2017)). sufficiently complete 3 [* 3] 3 of 8 FILED: WESTCHESTER COUNTY CLERK 01/07/2019 11:18 AM NYSCEF DOC. NO. 79 INDEX NO. 59515/2017 RECEIVED NYSCEF: 01/07/2019 the pleadings. failure to include plaintiffs have hav.e not been been prejudiced prejudiced by the plaintiffs plaintiff's failure include the pleadings. plaintiffs ;i;) access Court has access the Court electronically, the Furthermo~e,, since motion was filed filed electronically, action and motion since this action Furthermo~e i of the copy of submitting a copy error by submitting to all docur:nents documents in the file and the plaintiff rectified rectified her her error the plaintiff III/ AD3d 805 [2d Dept LLP v Sitomar, pleadings with her reply reply papers papers (see (see Jones, LLP Sitomar, 139 AD3d Dept with her pleadings 2016]). 2016]). that found that Wit~ Second Department Department has found the Second transcripts, the unsigned transcripts, regard to the unsigned With regard ,\ !\ ' I~ once certified judgment motion, unsigned transcripts submitted in support support of a summary motion, once certified summary judgment transcripts submitted unsigned ' admissible and opponents, are admissible by the stenographer unchallengedd in accuracy accuracy by the opponents, stenographer and unchallenge by AD3d New York, 124 AD3d Thomas v City should considered by the Court, motion. ((Thomas City of of New Court, on the motion. should be considered !) 'I AD3d 872 [2d Dept Dept 2015]; United Parcel Parcel Service, Service, Inc., 117 AD 3d 1004 1004 [2d Dept Dept Montalvo v United 2015]; Montalvo 2014]). 2014]). The The ,, deposition deposition transcripts, transcripts, although although unsigned, unsigned, were were certified certified by the ; motion proponents' that the motion found that stenograp0er/reporter The Courts Courts have have further proponents' further found r/reporter The stenograp~e CPLR under CPLR were admissible their motions, unsigned depositions, submitted in support support of their motions, were admissible under depositions, submitted unsigned themselves and accordingly, 3116(a), since since they party deponents deponents themselves accordingly, the party submitted by the they are submitted 3116(a), Dept AD3d 970 [2d Dept vane v Marte, 109 AD3d are adopt~d adopted as accurate (Pavane deponents (Pa those deponents accurate by those 2013]; David v Chong Chong Sun Lee, 106 AD3d 1044 [2d Dept Dept 2013]). 2013]). AD3d 1044 2013]; David ,, ~, counsel sent to opposing was sent The plaintiff's attorney attorney also letter which opposing counsel which was submitted a letter also submitted ThE? plaintiff's days or be within sixty requesting that signed and returned returned within sixty days transcript be signed deposition transcript the deposition that the requesting ,, fully used as if fully the transcript deemed signed pursuant to CPLR CPLR 3116. Therefore, Therefore, the transcript can be used signed pursuant deemed , ' AD3d Associates, LLC, 119 AD3d signed (s~e Rosenblatt Rosenblatt v St. George George Health and Racquetball Racquetball Associates, Health and signed (s~e ; 45 [2d Dept Dept 2014]). 2014)). 'I 4 [* 4] 4 of 8 FILED: WESTCHESTER COUNTY CLERK 01/07/2019 11:18 AM NYSCEF DOC. NO. 79 INDEX NO. 59515/2017 RECEIVED NYSCEF: 01/07/2019 turn a left of law matter of Rolfs alleges law by making making a left turn negligent as a matter was negligent Medin a was that Medina alleges that Rolfs Vehicl e State Vehicle York State of New violation of into an an interse intersection New York hazard ous to do so in violation was hazardous when it was ction when into that: nt part that: states in pertine and pertinent which states §1141, which Traffic Law S1141, and Traffic an within an the left within turn to the ing to turn "The vehicle intend intending of a vehicle driver of "The driver yield shall ay drivew shall yield intersection private road, or driveway ction or into an alley, private interse oppos ite the opposite from the ching the right of way to any vehicle approaching from approa vehicle any way the right to as to close so or ction direction intersection close as within the interse which is within on which directi §1141. VTL S1141. constitute immediate hazard."." VTL iate hazard constitute an immed of liability the issue "A plaintifff driver driver is entitled rnatter of law on the issue of liability if if judgm ent as a matter entitled to judgment "A plaintif ant the defend was the nt was of an accide cause of ate cause he or she 9emon (jemonstrates proximate accident defendant sole proxim the sole that the strates that or she he f's the plaintif of the the path driver'ss violation S1141 directlyy into the path of plaintiff's turning left directl 1141 in turning VTL § of VTL violation of driver' Martinez, Gause v (see Gause intersection" (see the intersection" oncoming lawfullyy presen presentt in the v Marlinez, was lawfull which was vehicle which ing vehicle ·oncom ate one proxim than one there may 91 AD3d [2d Dept Dept 2012]) 2012]).. Howev However, may be more more than proximate er, there 596 [2d 595, 596 AD3d 595, 91 the burden bears the judgm ent motion summ ary judgment cause of proponent of a summary motion bears burden ent of the propon accide nt and the an accident of an cause driver a driver since a of law ence as a matter of establi establishing negligence matter of law (Id), (lei), since compa rative neglig from comparative freedo m from shing freedom of Aft/ vv avoid a collisio able care with a right-o right-of-way reasonable care to avoid collisionn (see (see Attl duty to use reason also has a duty f-way also with a right-ofthe right-ofwith the driver with heless, "a driver Spetler,r, 137 137 AD 3d 1176, 1176, 1176 1176 [2d Dept Dept 2016]). Nevertheless, 2016]). Nevert AD3d Spetle not yield is to yield failed to which has way has only has failed is not vehicle which react to a vehicle secon ds to react only seconds who has way who s, see also collision" (Id); comparatively negligent (lei); see also Smith Smith v. v. Omane Omanes, the collision" avoid the failing to avoid for failing ent for compa rativel y neglig 014]). 123 AD3d 691, 691 Dept 2014]). 1 [2d Dept2 3d 691,69 123AD has she has or she ent if he or driver is neglig The Secondd Depar Department also held that negligent that "[a] driver tment has also The Secon senses, should failed proper use of senses, should have have been been seen" seen" (see (see the proper throug h the which, through that which, see that to see failed to the with the vehicle with operat or of a "The operator Bernerr v v Koegel, 31 AD3d [2d. Dept Dept 2006]) 2006]).. "The a vehicle AD3d 591, 592 [2d._ Koegel, 31 Berne 5 [* 5] 5 of 8 FILED: WESTCHESTER COUNTY CLERK 01/07/2019 11:18 AM NYSCEF DOC. NO. 79 INDEX NO. 59515/2017 RECEIVED NYSCEF: 01/07/2019 right-of-way is entitled entitled to assume that the opposing opposing driver driver will obey obey the the traffic traffic laws right-of-way assume that requiring him or her her to yield" yield" (see Gause, Gause, 91 91 AD3d AD3d at 596). requiring claims that Medina's failing failing to yield yield the right of way to her In this case, Rolfs claims that by Medina's of way vehicle approaching from vehicle which which vehicle approaching from the opposite opposite direction, direction, and his failing failing to see see her vehicle should hav~ have been seen seen with proper proper use of his senses, senses, constituted constituted negligence negligence as a matter matter should of the the accident. of law and was the sole sole proximate proximate cause cause of accident. Since the evidence evidence shows that Medina Medina did not have have the right of making Since shows that the right of way way when when making his left turn, admitted admitted to not seeing seeing the vehicle vehicle prior prior to beginning beginning to execute execute his turn, had unobstructed view view of of traffic proceeded into the intersection, intersection, the Court finds that an unobstructed traffic and proceeded the Court finds that of entitlement entitlement to judgment judgment as a matter Rolfs Rolfs has established established a prima prima facie facie showing showing of matter of law. The burden burden now shifts evidentiary proof proof establishing establishing the The shifts to the defendants defendants to set set forth forth evidentiary existence of a material material issue issue of of fact. existence opposition to Rolfs' Rolfs' motion, motion, the defendants In opposition defendants submit submit an attorney's attorney's affirmation affirmation and the deposition husband, Mark Mark Rolfs, and assert that there deposition testimony testimony of of the Rolfs' husband, assert that there are issues of material material fact fact as to whether Mark Rolfs was comparatively negligent negligent for failing failing to issues whether Mark was comparatively brake avoid the collision for speeding. The defendants _are brake and/or and/or avoid collision and for speeding. The defendants argue argue that that there there are triable issues of fact how the accident occurred, occurred, including including who who had entered entered the triable issues fact as to how the accident intersection first, first, and whether whether Mark Mark Rolfs began began his left-turn left-turn at a time Medina's intersection time when when Medina's vehicle within the intersection intersection and not so close close as to constitute constitute an immediate immediate vehicle was not within hazard. hazard. However, "[t]he "[t]he right right of innocent passenger passenger to an award award of judgment of an innocent judgment on the However, issue of liability liability against against one driver driver is not barred barred or restricted restricted by potential potential issues issues of issue 6 [* 6] 6 of 8 FILED: WESTCHESTER COUNTY CLERK 01/07/2019 11:18 AM NYSCEF DOC. NO. 79 INDEX NO. 59515/2017 RECEIVED NYSCEF: 01/07/2019 comparative fault as between that driver and the driver another vehicle vehicle involved in the comparative driver of another accident" (Rodriguez (Rodriguez vFarre/1, vFarrell, 115 AD3d 929 [2d Dept 2014]). Medina also disregards disregards the fact that Mark Rolfs, who had the right of way was entitled to anticipate anticipate that Medina would obey the traffic laws requiring him to yield (see AD3d Vehicle and Traffic ). Gause, 91 91 AD 3d at 596; Yelder, 64 AD3d at 764; see Vehicle Traffic Law§ Law 3 1141 1141). The courts have held that "a driver right-of-way who has only seconds driver with the right-of-way seconds to react to comparatively negligent negligent for failing to avoid the a vehicle which has failed to yield is not comparatively Spetler, 137 AD3d 1176, 1176 [2d Dept 2016), quoting Yelder Yelder v Attl v Spetler, 20161, quoting collision" (see AttJ Walters, 64 AD3d 762, 764 [2d Dept 2009]) [citations omitted]. Even if the vehicle failed to brake or avoid the collision, an error of judgment judgment or wrong choice of action is not negligence when one is called upon to act quickly in the face of sudden and unexpected unexpected negligence circumstance deliberation or consideration. circumstance which leave little or no time for thought, deliberation consideration. (14 37:15; Rivera Rivera v New New York City City Transit Transit Authority, N.Y.Prac., New York Law of Torts §7:15; Authority, 77 [1991]). NY2d 322, 327 [1991 ]). vehicle was speeding Additionally, the defendants' Additionally, defendants' assertion that the plaintiffs plaintiffs vehicle when the accident speculation and not supported accident occurred is mere speculation supported by the evidence. estimate the speed at which Rolfs' vehicle was Medina testified that he could not estimate travelling. Therefore, Therefore, that argument argument is insufficient insufficient to defeat summary summary judgment. judgment. (see Batts v Page, Page, 51 51 A.D.3d McCain v Larosa, Larosa, 41 41 AD3d 792, 793 A.D.3d 833, 834 [2d Dept 2008]; McCain Batts Meliarenne v Prisco, Prisco, 9 AD3d 353, 354 [2d Dept 2004]). Therefore, [2d Dept 2007]; Me/iarenne Therefore, the defendants have not raised an issue of material fact to rebut the Court finds that the defendants plaintiffs prima facie showing of entitlement entitlement to judgment plaintiff's judgment as a matter of law. 7 [* 7] 7 of 8 FILED: WESTCHESTER COUNTY CLERK 01/07/2019 11:18 AM NYSCEF DOC. NO. 79 INDEX NO. 59515/2017 RECEIVED NYSCEF: 01/07/2019 Accordingly, Accordingly, it is ,; Ii " ORDERED that the the plaintiff's summary judgment judgment on liability ORDERED that plaintiff's motion motion for for summary liability is GRANTED; and it is further GRANTED; further ,I ,, " ORDERED that the defendants' affirmative affirmative defenses defenses as to comparative ORDERED that the defendants' comparative negligence negligence ;I'I parties are directed appear in the Settlement Settlement Conference Conference Part in are dismissed. dismissed. The The parties directed to appear courtroom i1600 ,1600 on February February 5 at 9:15 a.m., to schedule schedule a date for a trial courtroom date for trial on damages. damages. ''II i Dated: White Plains, New York York Dated: White Plains, December 31,2018 December 31, 2018 ., &_. ~ ~&.~ SAM D. WALKER, J.S.C. N. SAM WALKER, J.S.C. 8 [* 8] 8 of 8

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