Deegan v Getter

[*1] Deegan v Getter 2014 NY Slip Op 50196(U) Decided on February 18, 2014 Supreme Court, Kings County Schmidt, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 18, 2014
Supreme Court, Kings County

Keirstan Deegan, Plaintiff,

against

Yoel Getter and TORAH V'CHESED INC., Defendants.



24401/2011



Plaintiff's Attorney: Stephen B. Tiger, Esq.; Law Office of Cohen & Jaffe, LLP: 2001 Marcus Avenue, Ste. W295, Lake Success, NY 11042

Defendants' Attorney: Jacqueline Cabrera, Esq.; Adams, Hanson, Rego, Carlin, Kaplan & Fishbein: 1991 Marcus Avenue, Ste. 305, Lake Success, NY 11042

David I. Schmidt, J.

In this personal injury action, defendants Yoel Getter (Getter) and Torah V'chesed Inc. (TVI), move for an order granting summary judgment, pursuant to CPLR 3212, on the issue of liability in their favor. The instant action arises out of an accident between a pedestrian, the plaintiff, and a motor vehicle operated by Getter and registered to TVI, that occurred on December 12, 2010 near the intersection of Second Avenue and East 14th street in the borough of Manhattan. Plaintiff opposes the motion.

For the reasons that follow, the motion is denied.

I.Defendants' Proof

A.Deposition Testimony of Defendant Yoel Getter

At his deposition (annexed as Ex. Dto the affirmation of Jacqueline Cabrera, dated September 6, 2013 [Cabrera aff.]), Getter testified that at the time of the accident he was operating a motor vehicle, which was owned by his employer, co-defendant, TVI. The accident occurred on 14th Street near Second Avenue in Manhattan.

The accident occurred at approximately 1:30 a.m. on December 12, 2010. The accident involved his vehicle and a pedestrian, the plaintiff herein. Prior to the accident, he stopped for a red light at the intersection of 14th Street and Second Avenue. He was heading eastbound on 14th Street. As described by Getter, 14th Street is a two-way street with two traveling lanes in each direction (eastbound and westbound) separated by two yellow lines and a parking lane on each side of the street; Second Avenue has three traveling lanes running in one direction [*2](southbound). The intersection had pedestrian crosswalks at all four corners. There were three cars in front of him at the red light. Getter could not recall what kind of vehicles they were except that the vehicle immediately in front of him was a taxi. When the light turned green, the vehicles in front of him went through the intersection and he proceeded forward.

There was a light drizzle at the time and Getter had his windshield wipers on slow speed. The roadway was wet. According to Getter, he moved his vehicle forward at approximately 10 miles per hour and was looking straight ahead. He had not entered the intersection prior to impact with plaintiff. Within 10 to 15 seconds of moving his vehicle, he saw plaintiff in front of him. He immediately hit the brakes but was unable to avoid contact with plaintiff. From the time he saw plaintiff until impact was a few seconds. Getter stated that the part of the vehicle that struck plaintiff was the front left side (i.e., the driver's side). Prior to the impact, Getter had not seen the plaintiff.

After the impact, his vehicle was still five feet before the intersection, and two to three feet before the crosswalk. When the police arrived at the scene, his vehicle was still in the same position. He told the police that the plaintiff came running into the roadway and he hit her.

B.Depositon Testimony of Non-Party Mindy Stoff

At her deposition (annexed as Ex. Eto the Cabrera aff.), Ms. Stoff, a non-party witness, testified that on the date of the accident she was a front seat passenger in Getter's vehicle. She could not recall the weather conditions that night. She testified that she witnessed the front passenger side of the Getter vehicle strike plaintiff.

Prior to the accident, she had observed plaintiff on the street, where cars are able to park, close to the roadway. Ms. Stoff described plaintiff's location at this time as diagonally to the front of the car. She saw that plaintiff was stumbling. Although she had seen the plaintiff standing in the roadway, she did not think plaintiff was going to cross the roadway "because the light was green." She did not mention what she had seen to Getter, i.e., that she had seen plaintiff in the roadway. Ms. Stoff also noted that, despite the hour, there were a lot of people out at the time. She subsequently lost sight of plaintiff's movements because she was new to the area and was taking the opportunity to look around and absorb the different sights.

Less than a minute passed from when she observed the plaintiff until impact. The Getter vehicle was proceeding way less than 20 miles per hour at the time of impact. Ms. Stoff further testified that, at the time of impact, the light was green in the direction the Getter vehicle was traveling. According to Ms. Stoff, the accident occurred less than 10 feet from the jay walk lines, where pedestrians are allowed to walk. After impact she looked up at the traffic light in the direction the Getter vehicle was traveling and it was still green.

C.Deposition Testimony of Plaintiff Keirstan Deegan

At her deposition (annexed as Ex. Fto the Cabrera aff.), plaintiff testified that her accident occurred on December 12, 2010. The accident occurred after midnight on Saturday, early Sunday morning. On the day of the accident, she visited her friend's home at approximately 2:00 p.m. on Saturday. She left her friend's home at approximately 4:00 p.m. and went to a bar known as Amity Hall, at approximately 4:30 p.m.. She was had five to six mixed vodka drinks while she was there, and stayed at the bar for approximately 6 hours. She did not recall eating anything while she was at that bar. She and her friends left the bar to get pizza. She ate one slice of pizza and then went on to a second bar. She was at the second bar for one to two hours, [*3]where, to the best of her recollection, she had one to two beers.

She left the second bar and got in a cab intending to go home. She realized she had left her wallet and coat in the second bar. The cab driver let her out at Second Avenue and 14th Street because she did not have her wallet and could not pay. At that time, she was wearing her friend's black coat. She was intending to use the restroom at the KFC restaurant located across the street from where the cab dropped her off.

Plaintiff recalls standing at the northwest corner of the intersection of Second Avenue and 14th Street (the KFC restaurant is located at the southwest corner of the subject intersection) and remembers taking a step off the curb onto the crosswalk. However, plaintiff could not recall: (i) whether she was still in the crosswalk when she crossed the street; (ii) whether she looked at the traffic light before deciding to cross the street; or (iii) anything else that occurred at the accident scene. She first became aware that she had been involved in an accident when she awoke in Bellevue Hospital.

D.Hospital Records

A review of a portion of plaintiff's hospital records from Bellevue Hospital Center, where she was taken by ambulance following the accident reveals that upon arrival at the hospital, the plaintiff was noted to be intoxicated.[FN1]

II.Discussion

To prevail on a motion for summary judgment, the proponent must make a prima facie showing of entitlement to judgment as a matter of law, tendering evidentiary proof in admissible form. See Zuckerman v City of New York, 49 NY2d 557, 560 (1980). Once this showing has been made, the burden shifts to the party opposing the motion to rebut the prima facie showing by producing evidentiary proof in admissible form sufficient to require a trial of material issues of fact. See Kaufman v Silver, 90 NY2d 204, 208 (1997). Additionally, in deciding the motion, the court must view the evidence in a light most favorable to the party opposing the motion and must give that party the benefit of every favorable inference. Negri v Stop & Shop, 65 NY2d 625, 626 (1985).

It is defendants' contention that they are entitled to judgment in their favor because the testimony establishes that plaintiff was the sole cause of the accident as she was intoxicated, was not paying attention to vehicular traffic at the accident location, and crossed the roadway outside of the cross-walk and into the path of defendants' vehicle. Defendants further contend that there is no evidence establishing that Getter was operating the vehicle in a negligent manner or that any action or inaction by Getter caused or contributed to the occurrence of the accident. Consequently, defendants assert that the sum of the evidence proves that plaintiff was solely responsible for the accident and any injuries she may have sustained.

In further support of their position, defendants argue that the evidence shows that plaintiff's actions were in violation of various provisions of the Vehicle and Traffic Law (VTL). In this regard, defendants point to VTL § 1151 (b), which provides that: "No pedestrian shall suddenly leave a curb or other place of safety and walk or run into the path of a vehicle which is so close that it is impractical for the driver to yield." Relying on Getter's and Ms. Stoff's [*4]testimony that plaintiff was not in the crosswalk when she entered the roadway, defendants assert that plaintiff also violated VTL § 1152 (a), which provides that: "Every pedestrian crossing a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right of way to all vehicles upon the roadway." By contrast, defendants assert that there is no evidence of Getter's negligence. Rather, the evidence shows that Getter was lawfully proceeding with the light when plaintiff suddenly entered the roadway in front of the vehicle. As a result, defendants contend that they have established prima facie that plaintiff's negligence was the sole cause of the accident and are entitled to judgment in their favor on the issue of liability.

In opposition, plaintiff argues that: (i) the instant motion is untimely; (ii) defendants fail to submit evidence in admissible form in support of their motion; and finally, (iii) there are issues of fact which preclude granting the motion.

As a threshold matter, plaintiff argues that the instant motion is untimely in that it was filed on September 16, 2013, 66 days after the Note of Issue was filed on July 12, 2013. See affirmation of Stephen B. Tiger, dated October 22, 2013 (Tiger aff.), Exs. A (Note of Issue) and B (Notice of Motion). Plaintiff points to Kings County Supreme Court Uniform Civil Term Rule, Part C, Rule 6, which requires that "motions for summary judgment [other than those where the City of New York is a defendant and is represented by the Tort Division of the Corporation Counsel's office] may be made no later that 60 days after the filing of a Note of Issue . . . [T]he above time limitation[] may only be extended by the Court upon good cause shown." Plaintiff contends that as no good cause for the delay was provided with defendants' motion papers, the motion should be denied in its entirety without a consideration of its merits. See Giordano v CSC Holdings, Inc., 29 AD3d 948, 948-49 (2d Dept 2006) (reversing lower court's grant of summary judgment where "motion was made more than 60 days after the plaintiff filed a note of issue . . ., in violation of Rule 13 of the Uniform Civil Trial Rules of the Supreme Court, Kings County [the predecessor to the present Kings County Supreme Court Civil Term Rule C (6)], and the defendants failed to establish good cause for the delay").

Plaintiff's argument, however, rests on the mistaken premise that it is the filing date of the motion that determines its timeliness. Instead, it is the date of service, not filing, that determines timeliness. "A motion on notice is made when a notice of the motion or an order to show cause is served." CPLR 2211. Here, the affidavit of service of the "Notice of Motion, Affirmation in Support, & Annexed Exhibits" clearly indicates that the motion papers were served by mail upon plaintiff's counsel on September 6, 2013, prior to the expiration of the 60-day period that started running on July 12, 2013, the date the Note of Issue was filed.[FN2] See reply affirmation of Jacqueline Cabrera, dated November 26, 2013), Ex. A. Therefore, the court concludes that the instant motion is timely. [*5]

Plaintiff's second argument is that even if the motion is deemed to be timely filed, it should in any event be denied because defendants have failed to submit evidence in admissible form. Specifically, plaintiff argues that defendants' motion relies on testimony contained in the unsigned deposition transcripts of both Getter and Mindy Stoff. Plaintiff asserts that the failure to provide executed transcripts renders them inadmissible for the purpose of this motion.

As an initial matter, contrary to plaintiff's assertion, the certified deposition transcript of Getter, the proponent of the motion, although unsigned, is admissible. See David v Chong Sun Lee, 106 AD3d 1044, 1046 (2d Dept 2013) ("The unsigned but certified deposition of the defendant was admissible under CPLR 3116(a), since the transcript was submitted by the party deponent himself and, therefore, was adopted as accurate by the deponent.").

Whether the unsigned deposition testimony of Ms. Stoff, a non-party, can be considered in support of defendants' motion, requires a different analysis. CPLR 3116 (a) provides that if a deponent fails to sign and return the deposition transcript within 60 days, it may nevertheless be used as fully as if it were signed. Here, a transmittal letter indicates that a copy of the deposition transcript was sent to Ms. Stoff for her review and signature on August 28, 2013. See Cabrera aff., Ex. E. As indicated above, the motion was served on September 6, 2013. Since 60 days had not yet passed between the time the deposition testimony was sent to Ms. Stoff and service of the instant motion, plaintiff argues, correctly, that Ms. Stoff's testimony is not admissible and cannot be considered in determining whether defendants have made out a prima facie case. See Palumbo v Innovative Communications Concepts, 175 Misc 2d 156, 157-58 (Sup Ct, NY County 1997), affd 251 AD2d 246 (1st Dept 1998) ("In order to use a transcript that is not signed by the witness, if the witness is a nonparty . . . it is the burden of the party wanting to use the deposition transcript to show that the transcript was sent to the witness to be reviewed for any corrections, and that sufficient time to do so has passed") (emphasis added).

Reaching the merits, it is the court's view that although defendants have come forward with sufficient evidence demonstrating plaintiff's negligence, i.e., her intoxication and her violations of provisions of the VTL, defendants have failed to make a prima facie case that Getter's own alleged negligence did not contribute to the occurrence of the accident.

"A driver is bound to see what is there to be seen with the proper use of his senses." Topalis v Zwolski, 76 AD3d 524, 525 (2d Dept 2010). "There can be more than one proximate cause of an accident. As a result, the proponent of a summary judgment motion has the burden of establishing freedom from comparative negligence as a matter of law. The issue of comparative fault is generally a question for the trier of fact." Colpan v Allied Cent. Ambulette, Inc., 97 AD3d 776, 777 (2d Dept 2012) (inner citations and quotation marks omitted).

Here, viewing the evidence submitted in support of the defendants' motion in the light most favorable to plaintiff, the non-moving party, there is a triable issue of fact as to whether any comparative negligence on the part of Getter contributed to the accident. According to the evidence proffered by defendants, plaintiff was crossing 14th Street, a major thoroughfare in Manhattan, in a downtown direction. Getter was heading east on 14th Street. Prior to being struck, plaintiff successfully crossed the westbound parking lane, and two lanes of westbound traffic, and entered the eastbound lane of travel when Getter struck her with the front of his vehicle. Getter acknowledged that there were no large vehicles immediately in front of him obstructing his view and that he never looked to his left or right before proceeding to the [*6]intersection. By his own admission, Getter was at the intersection waiting for the light to change from 30 seconds to a minute. As such, there is a triable issue of fact as to whether or not Getter was keeping a proper lookout and was himself in violation of VTL 1146 (a) ("Notwithstanding the provisions of any other law to the contrary, every driver of a vehicle shall exercise due care to avoid colliding with any bicyclist, pedestrian, or domestic animal upon any roadway and shall give warning by sounding the horn when necessary.").

For the sake of argument, it is worth noting that, even if Ms. Stoff's unsigned deposition testimony could be considered in support of the motion, nothing therein eliminates the aforementioned issues of fact regarding Getter's own negligence. To the contrary, during the 30 seconds to a minute that Getter was waiting for the light to change prior to the accident, Ms. Stoff observed plaintiff diagonally in front of the vehicle on the side of the road, thus, raising the question as to whether Getter's inattention contributed to the accident. In addition, according to Ms. Stoff's testimony, plaintiff had crossed even further than Getter's testimony suggests into the eastbound lane in which Getter was traveling, such that plaintiff was struck by the front passenger side of his vehicle.[FN3]

Accordingly, defendants here have failed to demonstrate that plaintiff's negligence was the sole proximate cause of the subject collision. This determination is entirely in accord with the conclusion the Second Department reached in Colpan v Allied Cent. Ambulette, supra. There, the court affirmed Supreme Court's denial of defendant's motion for summary judgment, in spite of defendant's showing (as defendant shows here) that plaintiff had violated the traffic laws; that defendant had the right-of-way; and that defendant did not see the plaintiff before impact: "The defendants correctly contend that the plaintiff was negligent as a matter of law in operating her bicycle in violation of Vehicle and Traffic Law § 1127. However, on their motion the defendants failed to establish, prima facie, that the plaintiff's negligence was the sole proximate cause of the subject collision. Here, although the vehicle operated by the [defendant driver] had the right-of-way and was entitled to anticipate that the plaintiff would obey the traffic laws, the defendant driver also had a duty to exercise due care to avoid colliding with the plaintiff, a bicyclist (see Vehicle and Traffic Law § 1146 [a]). The transcripts of the deposition testimony of both the defendant driver and of the plaintiff, which were submitted in support of the defendants' motion for summary judgment dismissing the complaint, raised triable issues of fact as to whether the defendant driver was negligent in violating Vehicle and Traffic Law § 1146 (a), and whether he failed to see what was there to be seen through the proper use of his senses. The defendant driver admitted that he did not see the plaintiff until the point of impact, despite the fact that he stopped for "seconds" at the subject intersection before turning left."

Id., at 777-78 (emphasis added). [*7]

The cases cited by defendants for the proposition that Getter was not negligent because his vehicle's contact with plaintiff was unavoidable, are inapposite. In Galo v Cunningham, 106 AD3d 865 (2d Dept 2013), the appellate division reversed the lower court's denial of defendant's motion for summary judgment, where defendant submitted evidence that the plaintiff/pedestrian ran into middle of the road outside of a crosswalk and into his lane of travel, such that defendant was unable to avoid contact with the plaintiff. Id., at 866. Of critical importance, however, to the Galo court's determination was the defendant's testimony that, at the time the plaintiff ran into the road, his view of the plaintiff was "obstructed" by a white box truck traveling in the opposite direction in the lane closest to defendant and the two vehicles were almost parallel when plaintiff suddenly ran from behind the truck into defendant's lane of travel. Id., at 865-66. Here, there is no direct testimony (or even testimony from which an inference can be drawn) reflecting that Getter's view of plaintiff was in anyway obstructed.

Also distinguishable is Caro-Fortyz v Peterson, 110 AD3d 565 (1st Dept 2013), where defendants, the owner and operator of a vehicle, were granted summary judgment in a pedestrian's suit for injuries sustained when he was hit after stepping out onto the street. Unlike plaintiff in the instant case, who crossed several lanes of traffic before being struck, the plaintiff in Caro-Fortyz was injured just after stepping out into the street from between two parked cars. Id., at 566. Likewise, in Rosa v Scheiber, 89 AD3d 827 (2d Dept 2011), the court found that defendants established their prima facie entitlement to judgment as a matter of law by submitting evidence showing, inter alia, that the injured plaintiff walked out from behind a parked trailer directly into the path of the defendants' moving vehicle, leaving the defendant driver unable to avoid contact with the injured plaintiff. Id., at 828. Contrarily, under the facts presented in the instant case, there is a material question of fact as to whether Getter's failure to see plaintiff was the result of his own failure to exercise due care.

In conclusion, defendants have failed to submit evidence sufficient to establish, prima facie, that Getter kept a proper lookout and that his alleged negligence did not contribute to the happening of the accident. Because defendants have failed to demonstrate their prima facie case for judgment as a matter of law, the court need not consider whether plaintiff's opposition papers raise a triable issue of fact. Accordingly, the motion is denied.

The foregoing constitutes the decision and order of the court.

Dated: February 18, 2014

ENTER:

______________________J.S.C. Footnotes

Footnote 1: The chart contains notations regarding plaintiff's alcohol level, including "Etoh [an abbreviation for ethyl alcohol] on breath. ETOH found to be 194."

Footnote 2: Furthermore, CPLR 2203 (b) provides, in relevant part, that: "Except where otherwise prescribed by law or order of court, papers to be served upon a party in a pending action shall be served upon the party's attorney . . . Such service upon an attorney shall be made . . . by mailing the paper to the attorney at the address designated by that attorney for that purpose or, if none is designated, at the attorney's last known address; service by mail shall be complete upon mailing ... ." (emphasis added).

Footnote 3: Getter had testified that plaintiff was struck on the driver's side of the front of the vehicle. Supra, I.A.