Bartholomew v Gordon
Annotate this CaseDecided on October 4, 2013
Supreme Court, Kings County
Mya Kezyah Bartholomew, an infant under the age of fourteen years old by her mother and natural guardian LENORE KIZZI BARTHOLOMEW, and SHERNIYA AKILI GEORGE, an infant under the age of fourteen years old by her mother and natural guardian LENORE KIZZI BARTHOLOMEW, Plaintiffs,
against
Saska C. Gordon, FRANCOIS STEVENSON and SHEVON C. LOWE, Defendants.
10792/11
Plaintiff
Paul G. Vasnaver, Esq
Baldwin, NY
Defendant
Nancy S. Goodman, Esq.
Richard T. Lau and Associates
Jericho, NY
Office of Charles Hynes
Brooklyn NY
Arthur M. Schack, J.
Defendant SASKA C. GORDON (GORDON), in this pedestrian knockdown case, moves for summary judgment and dismissal of the complaint against her, pursuant to CPLR Rule 3212 (a), claiming she has no liability for the subject accident because defendant SHEVON C. LOWE (LOWE) is solely responsible for the subject accident.The two plaintiffs, MYA KEZYAH BARTHOLMEW (MYA) and SHERNIYA AKILI GEORGE (SHERNIYA), infant sisters, ages nine and eleven at the time of the subject accident, were struck by GORDON'S vehicle after it collided with LOWE'S vehicle. Defendant GORDON'S motion is denied for the reasons to follow because there are triable issues of fact.
Background
It is undisputed that on June 29, 2010 defendant GORDON was involved in an automobile accident with defendant LOWE at the intersection of Lott Avenue and Amboy
Street, Brooklyn, New York. Lott Avenue was a two-way roadway running from east to west and Amboy Street was a one-way street running north to south. At the subject intersection Amboy Street is governed by a stop sign while there is no traffic control
device on Lott Avenue. At the time of the accident defendant GORDON was operating her brown Acura eastbound on Lott Avenue and defendant Lowe was operating her green Nissan southbound on Amboy Street. The roads were dry and traffic conditions on Lott Avenue were light. As GORDON was going through the Lott-Amboy intersection, LOWE struck the left rear driver's side of the GORDON car causing GORDON's car to spin in a full circle, with the front of the GORDON vehicle coming into contact with a parked car and then with plaintiff-pedestrians MYA and SHERNIYA, who were on the sidewalk at the intersection. Defendant GORDON claims that she had the right-of-way and defendant LOWE failed to stop and proceed until it was safe to proceed, in violation of Vehicle and Traffic Law (VTL) § 1142 (a).
Defendant GORDON, in her examination before trial [exhibit E of motion] claims, at p. 21, that her highest rate of speed on Lott Avene prior to the accident was twenty to twenty-five miles per hour. Further, at p. 23, she testified that she never saw the LOWE vehicle prior to the accident.
Plaintiff SHERNIYA testified in her examination before trial [exhibit F of motion], at p. 21, that the LOWE car was speeding and didn't stop for the stop sign. However, she contradicted GORDON when she testified in her examination before trial, at p. 21, line 19 - p. 22, line 25:
Q:When you first noticed the brown car [GORDON's car]
for the first time, where was it?
A:It was by Herzl [Street] and Lott, by 39 Lott, and when
it was coming up, it was on the corner of Lott and Amboy, but across
the street from where we were and she [GORDON] said she seen the
car but she tried to speed up because there's no traffic light, so they
can just drive past and the green car [LOWE's car] ran the stop sign
and hit the back of the car.
Q:Back of the brown car?
A:Yes.
Q:Where on the back; on the driver's side of the car? [*2]
A:Yes.
Q:When you said "she said," who are you referring to?
A:Saska.
Q:Are you talking about the driver of the brown car?
A:Yes.
Q:Who did she say that to?
A:She came and visited us in the hospital, and she said she
seen them coming, so she tried to speed up because she probably knew
they were going to hit the front of the car, so she sped up and they hit
the back of her car.
Q:Did you see that happen when the two cars actually hit
each other.
A:Yes. [Emphasis added]
Plaintiff MYA also testified in her examination before trial [exhibit G of motion], p. 24, lines 4 - 20, in direct contradiction of defendant GORDON's testimony:
Q:Now did you see an accident occur between two cars
before the accident involving you?
A:Yes.
Q:You saw it?
A:Yes.
Q:What did you see? Tell me what you saw.
A:I saw a brown car coming up Lott and then I seen a green
car coming down Amboy and the brown car was speeding and the green
car ran past the stop sign and hit the back of the brown car and the brown
car spin around . . . and that's when it ran and drove up and hit us.
[Emphasis added]
Discussion
The 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 eliminate any material issues of fact from the case. (See Alvarez v Prospect Hospital, 68 NY2d 320, 324 [1986]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 [1957]). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers. (Winegrad v New York University Medical Center, 64 NY2d 851 [1985]; Qlisanr, LLC v Hollis Park Manor Nursing Home, Inc., 51 AD3d 651, 652 [2d Dept 2008]; Greenberg v Manlon Realty, 43 AD2d 968, 969 [2nd Dept 1974]).
CPLR Rule 3212 (b) requires that for a court to grant summary judgment the court must determine if the movant's papers justify holding as a matter of law "that there is no defense to the cause of action or that the cause of action or defense has no merit." The evidence submitted in support of the movant must be viewed in the light most favorable to the non-movant. (Boyd v Rome Realty Leasing Ltd. Partnership, 21 AD3d 920, 921 [2d Dept 2005]; Marine Midland Bank, N.A. v Dino & Artie's Automatic Transmission Co., 168 AD2d 610 [2d Dept 1990]). Summary judgment shall be granted only when there are no issues of material fact and the [*3]evidence requires the court to direct judgment in favor of the movant as a matter of law. (Friends of Animals, Inc., v Associated Fur Mfrs., 46 NY2d 1065 [1979]; Fotiatis v Cambridge Hall Tenants Corp., 70 AD3d 631, 632 [2d Dept 2010]).
Defendant GORDON, failed to establish her prima facie entitlement to judgment as a matter of law. While it appears that defendant LOWE is negligent for failing to stop at the stop sign, in violation of VTL§ 1142 (a), the deposition testimony by plaintiffs contradicts defendant GORDON. Further, GORDON's admission to SHERNIYA at the hospital about speeding into the subject intersection demonstrate the existence of triable issues of fact as to whether defendant GORDON is also at fault. The Court, in Exime v Williams (45 AD3d 633, 633 [2d Dept 2007]), instructed:
there can be more than one proximate cause of an accident (see Cox v
Nunez, 23 AD3d 427, 427 [2d Dept 2005]). Thus, "[u]nder the doctrine
of comparative negligence, a driver who lawfully enters an intersection
. . . may still be found partially at fault for an accident if he or she fails
to use reasonable care to avoid a collision with another vehicle in the
intersection'" (Romano v 202 Corp., 305 AD2d 576, 577 [2d Dept 2003],
quoting Siegel v Sweeney, 266 AD2d 200, 202 [2d Dept 1999]; see
Cox v Nunez, 23 AD3d at 427).
Moreover, in Regans v Baratta (106 AD3d 893, 894 [2d Dept 2013]), the Court held:
While an operator of a motor vehicle traveling with the right-of-way
is entitled to assume that the other drivers will obey the traffic laws
requiring them to yield (see Steiner v Dincesen, 95 AD3d 877 [2d
Dept 2012]; Pollack v Margolin, 84 AD3d 1341, 1342 [2d Dept 2011]),
the operator traveling with the right-of-way still has an obligation to
keep a proper lookout and see what can be seen through the reasonable
use of his or her senses to avoid colliding with other vehicles (see
Winner v Star Cruiser Transp., Inc., 95 AD3d 1109, 1109-1110 [2d
Dept 2012]; Bonilla v Calabria, 80 AD3d 720 [2d Dept 2011]). The
issue of comparative fault is generally a question for the trier of fact
(see Allen v Echols, 88 AD3d 926 [2d Dept 2012]; Wilson v Rosedom,
82 AD3d 970 [2d Dept 2011]).
Additionally, defendant GORDON's admission to plaintiff SHERNIYA at the hospital, after the accident, that "she said she seen the car but she tried to speed up because there's no traffic light, so they can just drive past [exhibit F, p. 21, line 24 - p. 22, line 3]" contradicts her sworn testimony that she never saw the LOWE vehicle prior to the accident [exhibit E, p. 23]. This admission is an issue for the trier of fact. "In a civil action the admissions by a party of any fact material to the issue are always competent evidence against him, wherever, whenever, or to whoever made." (Reed v McCord, 160 NY 330, 341 [1899]). (See Smolinski v Smolinski, 78 AD3d 1642, 1644 [4d Dept 2010]; Amann v Edmonds, 306 AD2d 362 [2d Dept 2003]).
Therefore, the instant motion for summary judgment is denied.
Conclusion
Accordingly, it is,
ORDERED that the motion of defendant SASKA C. GORDON for summary judgment [*4]and dismissal of plaintiffs' complaint against her, pursuant to CPLR Rule 3212 (a), is denied.
This constitutes the Decision and Order of the Court.
ENTER
_________________________
HON. ARTHUR M. SCHACKJ. S. C.
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