Torres v Dandrow's Painting, Inc.
Annotate this CaseDecided on October 29, 2010
Supreme Court, Ulster County
Ruben Torres and Marilda Amaral, Plaintiffs,
against
Dandrow's Painting, Inc. and Daniel Moorehead, Defendants.
08-3792
Mainetti, Mainetti & O'Connor, P.C.
Attorneys For Plaintiff
Michael J. Kavanagh, Esq., of counsel
303 Clinton Avenue
P.O. Box 3058
Kingston, New York 12402
Law Offices of Theresa J. Puleo
Attorneys For Defendants
P. David Twichell, Esq., of counsel
441 South Salina Street
The Galleries of Syracuse
Box 364, Second Floor
Syracuse, New York 13202
Henry F. Zwack, J.
In this motor vehicle accident case, plaintiffs move for partial summary judgment regarding liability. Defendants oppose the motion.
On October 18, 2006 at approximately 7:30 a.m. plaintiff Ruben Torres and defendant Daniel Moorehead, who was driving a truck owned by Dandrow's Painting, Inc., were involved in an accident on Route 52 in the Town of Wawarsing, Ulster County. Plaintiff was traveling eastbound and defendant's truck was beginning to cross the roadway from the eastbound shoulder to travel west when plaintiff hit the truck. The roadway is located in a mountainous area and the location of the accident was on a curve.
Plaintiffs now move for summary judgment on liability, arguing that the accident occurred in plaintiff's lane of travel, and plaintiff was traveling below the speed limit. Plaintiffs argue that negligence of defendants is the sole cause of the accident and that there are no questions of fact concerning liability.
Defendants argue that there are questions of fact regarding liability, including whether plaintiff was paying attention to the road and if plaintiff took all actions he could have taken to avoid the accident. Defendants also reference Vehicle and Traffic Law § 1215 and argue that plaintiff was required to blow his horn if there was less than 200 feet of sight distance around the curve where the accident occurred.
Summary judgment is a drastic remedy which should not be granted unless it is clear that there are no triable issues of fact (Andre v Pomeroy, 35 NY2d 361, 364 [1974]). The focus should be on issue identification rather than issue determination (Sternbach v Cornell University, 162 AD2d 922, 923 [3d Dept 1990]). "[T]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" (Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; see also Ayotte v Gervasio, 81 NY2d 1062 [1993]; Zuckerman v City of New York, 49 NY2d 557 [1980]). Once the movant has established a right to judgment as a matter of law, the burden shifts to the opponent of the motion to establish, by admissible proof, the existence of genuine issues of material fact (see Alvarez, supra; Zuckerman, supra). The evidence must be viewed in the light most favorable to the party opposing the motion, giving that party the benefit of every reasonable inference, in order to determine whether there is any triable issue of fact outstanding (see Suffolk Co. Dept. of Soc. Servs. v James M., 83 NY2d 178, 182 [1994]; Boyce v Vazquez, 249 AD2d 724, 725 [3d Dept 1998]).
Vehicle and Traffic Law § 1215 is regarding driving on mountain highways and states as follows: "[t]he driver of a motor vehicle traveling through defiles or canyons or on mountain highways shall hold such motor vehicle under control and as near the right-hand edge of the highway as reasonably possible and, upon approaching any curve where the view is obstructed within a distance of two hundred feet along the highway, shall give audible warning with the horn of such motor vehicle."
The Court finds that defendants have raised a triable issue of fact as to the [*2]contributory negligence of plaintiff based upon the lack of evidence that he observed the rule of the road as stated in Vehicle and Traffic Law § 1215 (see, e.g., Burghardt v Cmaylo, 40 AD3d 568 [2nd Dept 2007]). There was no evidence that plaintiff blew his horn while rounding the curve, and given the general description of the limited sight distance around the curve where the accident occurred, there is a question as to whether the view was obstructed within a distance of 200 feet, making the statute applicable.
The Court also finds that there are additional issues of fact raised by the testimony of the parties, specifically where defendant's truck was located on the highway at the time when plaintiff first observed or should have first observed it, and whether plaintiff had sufficient time to brake or swerve to avoid defendant's truck.
Based upon the foregoing, the Court denies plaintiffs' motion for partial summary judgment.
Accordingly, it is
ORDERED, that plaintiffs' motion is denied.
This constitutes the Decision and Order of the Court. This Decision and Order is returned to
the attorneys for the defendants. All other papers are delivered to the Supreme Court Clerk for
transmission to the County Clerk. The signing of this Decision and Order shall not constitute
entry or filing under CPLR 2220. Counsel is not relieved from the applicable provisions of this
rule with regard to filing, entry and Notice of Entry.
Dated:October, 2010
Troy, New York
________________________________________
Henry F. Zwack
Acting Supreme Court Justice
Papers Considered:
Notice of Motion dated May 25, 2010; Affirmation of Michael J. Kavanagh, Esq. dated August 17, 2010; Affidavit of Ruben Torres sworn to August 9, 2010; together with Exhibits "A" through "G"; [*3]
Affidavit of P. David Twichell, Esq. sworn to September
16, 2010; together with Exhibits "A" through "B"; Memorandum on Behalf of Defendants dated
September 16, 2010.
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