Tossas v Ponce

[*1] Tossas v Ponce 2004 NY Slip Op 51916(U) [18 Misc 3d 1132(A)] Decided on October 1, 2004 Supreme Court, Bronx County Salerno, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 1, 2004
Supreme Court, Bronx County

George Tossas, Plaintiff,

against

John N. Ponce, Amada T. Ponce, and Joseph Gisondo, Defendants.



17521/03



Counsel for Plaintiff:

Burns & Harris, 233 Broadway, NY, NY

Counsel for Defendant Gisondo:

Law Office of Susan Owens, 140 Grand Street, White Plains, NY

Counsel for Defendants Ponce:

Haag & Kozer, 200 White Plains Road, Tarrytown, NY

George D. Salerno, J.

Motion by only one Defendant, JOSEPH GISONDO (GISONDO) for summary judgment in his favor on the issue of liability, is denied.

This is an action to recover for alleged personal injuries sustained in a motor vehicle accident that occurred on December 22, 2002, at about 3:30 PM. The three vehicles allegedly involved in the accident were the white Saturn owned and operated by Plaintiff, GEORGE TOSSAS (TOSSAS); the Econoline Dodge Van owned by Defendant JOHN N. PONCE (Mr. PONCE) and operated by Defendant AMADA PONCE (Mrs. PONCE); and the gray Mercury Sable owned and operated by Defendant GISONDO.

At his deposition, Plaintiff TOSSAS describes the incident as follows: TOSSAS was driving Southbound on Central Avenue, in the lane "closest to the oncoming traffic". Near the intersection of Aqueduct and Central Avenue, the "front bumper" of his vehicle was struck by "the driver's side bumper" of the [*2]PONCE vehicle. As a result of that "first" impact, TOSSAS' vehicle traveled about "a car length"; and was pushed over the double yellow line, into the lane of oncoming northbound traffic. About 10 to 20 seconds later, the "front end" of TOSSAS vehicle was struck by the "driver's side front end" of GISONDO's vehicle. This "second" impact occurred in the northbound lane that was closest to the double yellow line. Central Avenue has 2 travel lanes going northbound and 2 lanes going southbound which are separated by a double yellow line. The weather was clear and dry, it was daylight, and the road was straight and level. (See TOSSAS EBT, p. 9-11, 13-18, 57-60).

The version told by Defendant GISONDO at his deposition was, in relevant part, as follows: GISONDO was traveling northbound on Central Avenue, in the lane that was further from the double yellow line. He states that it was "seconds before" the impact that he saw TOSSAS' vehicle. However, it is significant that he does not specify how many seconds. GISONDO stated that his wife (who was a passenger) saw the accident coming; but this is also not explained fully. GISONDO admitted that he wears glasses for distance; but that he did not remember if he was wearing them at the time of the accident. GISONDO's attorney objected to certain questions regarding his client's vision. (See GISONDO EBT, p. 10-18).

Defendant GISONDO does admit that it was "two or three" seconds before the impact that he applied his brakes. GISONDO did not hear the sound of the alleged "first" impact; and he did not hear the sound of any horn. It was "the left side of the bumper and fender" of GISONDO's car that came into contact with "the center of the front" of TOSSAS' car. GISONDO said that he told the Police that TOSSAS car smashed into his car, pushing GISONDO's car onto the sidewalk. Nothing obstructed GISONDO's ability to see the southbound side of the roadway. (See GISONDO EBT, p. 10-18).

Mrs. PONCE's deposition testimony is quite unclear. However, she does repeatedly state that, prior to the impact, she heard honking. Mrs. PONCE also indicates that the northbound car, (belonging to GISONDO), was speeding. When asked how much time elapsed, "from the time the white car [TOSSAS] passed" in front of her, "until it crossed over the double yellow line and hit the gray car [GISONDO]", Mrs. PONCE replied: "It was fast. It must have been one minute, less." Mrs. PONCE denied that there was any contact between her vehicle and TOSSAS' vehicle. [emphasis added] (See Mrs. PONCE EBT, p. 27-28, 38-39, 49).

The First Department recently held that "triable factual disputes on the applicability of the emergency doctrine" existed where the conflicting versions of the events provided by the parties: "reveal issues of disputed material fact [*3]involving the time interval between cross-over and impact, the condition and position of the [Plaintiff's vehicle and the ability of [Defendant] to have avoided impact by reducing speed or moving to other lanes." [emphasis added] Quiles v. Greene, 291 AD2d 345 (1st Dept. 2002).

Similar to the case at bar, the Quiles action arose from 2 successive car collisions involving 3 vehicles. After the first collision, Plaintiff's vehicle was caused to cross over into the oncoming lane of traffic. Plaintiff Quiles alleged that he: "was driving a truck southbound in the right lane when the vehicle driven by the defendant Greene cut into his lane and suddenly stopped, causing Quiles to rear-end the Greene vehicle, cross the southbound center and left lanes and land astride the metal center divider. Quiles' truck, now protruding into the northbound lane, was struck by the vehicle driven by defendant Samuel." [emphasis added] "Quiles specifically claimed that his truck came to a full stop across the divider and that 15 seconds elapsed before Samuel struck him." In contrast, Samuel testified at his deposition, that "the Quiles vehicle was only visible to him for a matter of seconds before impact." [emphasis added] Quiles v. Greene, 291 AD2d 345.

Likewise, in similar cases where Plaintiff's vehicle was struck by Defendant's vehicle after Plaintiff was caused to cross over into the lane of oncoming traffic, the First Department held that deposition testimony:

"to the effect that there had been an interval of several seconds between the cross over and the collision, raises a triable issue as to whether the [Defendant] driver was confronted with an emergency, and, if not, whether he took reasonable steps to avoid the collision." [emphasis added] Trevino v. Castro, 256 AD2d 6 (1st Dept. 1998); See also Raposo v. Raposo, 250 AD2d 420 (1st Dept. 1998).

In the instant matter, the parties give materially different versions of the accident. There are questions of fact, for example, as to the time interval between the cross over and the "second" impact; the position of the vehicles on the road; and whether Defendant GISONDO could have avoided the impact by taking evasive action or reducing speed.

Under all of the circumstances, it will be for a jury to decide whether the emergency doctrine insulates this defendant from liability. See Khaitov v. Minevich, 277 AD2d 805 (3rd Dept. 2000); Palmer v. Rouse, 232 AD2d 909 (3rd Dept. 1996).

It is noted that NY Pattern Jury Instruction 2:77.1 provides that:

"A driver is charged with the duty to see that which under the facts and circumstances he should have seen by proper use of his senses, and if defendant did not observe that which was there to be seen, it may be found that he was [*4]negligent in failing to look or in not looking carefully." 1A NY PJI 3d 2.77.1 (2004).

Accordingly, Defendant GISONDO's motion for summary judgment is denied. This constitutes the decision and order of this Court.

Dated: October 1, 2004______________________

George D. Salerno, J.S.C.