GARY BEYERS v. ANTHONY PENNELLO

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

GARY BEYERS and RUBIA BEYERS,

his wife,

Plaintiffs-Appellants,

v.

ANTHONY PENNELLO,

Defendant-Respondent.

_________________________________

GARY BEYERS and RUBIA BEYERS,

his wife,

Plaintiffs,

v.

JERRY CAPORALE, TAXI & LIMOUSINE

ONE,

Defendants.

__________________________________

September 9, 2016

Submitted September 6, 2016 Decided

Before Judges Hoffman and Currier.

On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Docket Nos. L-2389-13 and L-2667-13.

Manning, Caliendo & Thomson, P.A., attorneys for appellants (Vincent P. Manning, on the brief).

Camassa Law Firm, P.C., attorneys for respondent (Ronald S. Yuro, of counsel and on the brief; Christopher M. Brady, on the brief).

PER CURIAM

Plaintiff Gary Beyers appeals the grant of summary judgment in favor of defendant Anthony Pennello. After a review of the record, and arguments advanced on appeal, and in light of the applicable law, we affirm.1

The undisputed facts presented to the motion judge from the parties' respective depositions are as follows. Plaintiff was traveling northbound on Arthur Avenue in Point Pleasant and stopped at a stop sign at its intersection with Route 88. Plaintiff desired to make a left turn onto Route 88 westbound. Traffic was heavy and backed up on both directions on Route 88 at the intersection. When another driver stopped his car to plaintiff's left and waved to him, plaintiff pulled out from the stop sign and stopped his vehicle at the yellow line dividing the lanes of Route 88. After checking for traffic in both directions, plaintiff looked to the left (westbound) and as he began to pull into the westbound lane he was struck by defendant's vehicle in the area of his front bumper, tire, and fender. Plaintiff entered a guilty plea without a civil reservation for unsafe driving, in violation of N.J.S.A. 39:4-97.2.

Defendant testified that he was traveling westbound on Route 88 when he was struck by plaintiff, who came into his lane. Defendant stated that there was a large van or SUV in the eastbound lane of Route 88 that was blocking his view of Arthur Street.

In granting summary judgment to defendant, the judge noted plaintiff was governed by the stop sign at the intersection. He stated

[Plaintiff] may have stopped but he didn't yield to oncoming traffic, was relying on apparently a driver to his left who waved him into oncoming traffic. The fact that he pled guilty, he did not take a civil reservation and that would be admissible. Under the circumstances I think it's just so one-sided that as a matter of law the defendant must prevail.

Plaintiff argues on appeal that a genuine issue of fact exists as to which driver had the right of way at the time of the accident, requiring the denial of summary judgment. We disagree.

Summary judgment is warranted when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. R. 4:46-2; Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). An issue of fact is considered genuine "only if, considering the burden of persuasion at trial, the evidence submitted by the parties on the motion, together with all legitimate inferences therefrom favoring the non-moving party, would require submission of the issue to the trier of fact." R. 4:46-2(c). When "there exists a single, unavoidable resolution of the alleged disputed issue of fact, that issue [is] insufficient to constitute a 'genuine' issue of material fact for purposes of Rule 4:46-2." Brill, supra, 142 N.J. at 540 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202, 213 (1986)).

We review an order granting summary judgment de novo, applying the same standard used by the trial court. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998).

Viewing the facts in the light most favorable to plaintiff, as Rule 4:46-2(c) requires, we reject plaintiff's claim that there were disputed issues of fact that required the judge to deny defendant's motion. Plaintiff pulled out into heavy, stopped traffic after another driver motioned to him. He did not see defendant's vehicle until he was struck. Plaintiff was looking in the direction away from defendant's location at the time he began to move into defendant's lane. Finally, the guilty plea to a traffic violation of unsafe driving was admissible evidence before a jury. We are satisfied the judge was correct in his ruling that the evidence was so one-sided that a jury could not find in plaintiff's favor.

Affirmed.

1 Plaintiff was involved in a subsequent automobile accident which was the subject of the second caption noted above. That case was settled and was not the subject of either the summary judgment motion or this appeal.