Tirone v Skok
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Tirone v Skok 2015 NY Slip Op 32998(U) July 31, 2015 Supreme Court, Erie County Docket Number: Index No. 800077/2014 Judge: Patrick H. NeMoyer Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 800077/2014 FILED: ERIE COUNTY CLERK 07/31/2015 12:07 PM NYSCEF DOC. NO. 27 RECEIVED NYSCEF: 07/31/2015 Special Term At a Special Term of of the Supreme Supreme Court, State State of of New New York, York, at the Court, courthouse in Buffalo, Buffalo, New New York York on courthouse the 3/ day day of V ,2015 of L//.-.,Y 2015 VJ...t 3/ STATE STATE OF NEW NEW YORK YORK SUPREME COURT SUPREME COURT , COUNTY COUNTY OF ERIE ERIE JULIE TIRONE , JULIE TIRONE, Plaintiff, Plaintiff, DECISION and ORDER ORDER DECISION and V. v. INDEX NO. NO. 800077/2014 800077/2014 INDEX KATHLEEN KATHLEEN SKOK, SKOK, Defendant. Defendant. APPEARANCES: APPEARANCES: KATHERINE A. GILLETTE, GillETTE, ESQ., for KATHERINE ESQ., for Plaintiff Plaintiff RICHARD RICHARD POVEROMO, POVEROMO, ESQ., ESQ., for for Defendant Defendant PAPERS CONSIDERED: PAPERS CONSIDERED: NOTICE OF MOTION MOTION FOR JUDGMENT of of the NOTICE FOR SUMMARY SUMMARY JUDGMENT Defendant with Defendant and the AFFIDAVIT AFFIDAVIT of Lisa M. Diaz-Ordaz, Diaz-Ordaz, Esq., Esq., with annexed exhibits; annexed exhibits; the AFFIDAVIT Kathleen Skok; Skok; AFFIDAVIT of Kathleen Michelle Parrish; Parrish; the AFFIDAVIT AFFIDAVIT of Michelle Richard P. Weisbeck, Weisbeck, Jr., Esq Esq.,., with the AFFIDAVIT AFFIDAVIT of Richard with annexed annexed exhibits; exhibits; CHRISTOPHER A. PUCKETT, PUCKETT, with with annexed annexed the AFFIDAVIT AFFIDAVIT OF CHRISTOPHER exhibits; and exhibits; with annexed the REPLY REPLY AFFIDAVIT AFFIDAVIT of Lisa M. Diaz-Ordaz, Diaz-Ordaz, Esq., Esq., with annexed exhibits. exhibits. Plaintiff commenced action to recover recover damages damages for personal injuries injuries sustained sustained at Plaintiff commenced this action for personal intersection of Hamlin Avenues in East about June 11 about 10:00 a.m. a.m. on June 11,, 2013 2013 at the intersection Hamlin and Girard Girard Avenues East Aurora , Erie County. were sustained when plaintiff, along Aurora, County. The The injuries injuries were sustained when plaintiff, while while jogging jogging north north along Hamlin Avenue through the intersection, intersection, ran into the driver's side of of the SUV of of defendant, Hamlin Avenue through driver's side the SUV defendant, who who proceeding straight straight through through the intersection intersection after after having having stopped stopped her vehicle behind behind a stop was proceeding her vehicle stop westbound traffic Girard Avenue. Avenue. The intersection, which formed by two sign controlling controlling westbound traffic on Girard The intersection, which is formed [* 1] relatively relatively narrow narrow residential residential streets, streets, is governed governed by four four stop stop signs signs and features features defined defined and narrow crosswalks crosswalks that that line up with the sidewalks sidewalks that that meet meet at all four four corners corners of the the narrow intersection. intersection. By her her own account, account, buttressed buttressed by that that of the driver driver of the vehicle vehicle proceeding proceeding directly directly behind hers, hers, defendant defendant made made a full and prolonged prolonged stop stop at the stop stop sign. sign. Defendant Defendant looked looked to behind her left for ten seconds, seconds, then then looked looked to her her right right for for a similar similar time, time, then then glanced glanced left again again her before before proceeding proceeding slowly slowly into the intersection. intersection. When When plaintiff plaintiff contacted contacted defendant's defendant's vehicle, vehicle, its front end was in or near near the crosswalk crosswalk on the opposite opposite side side of the the intersection intersection from from the stop stop front sign in question. question. It appears appears that that plaintiff plaintiff was jogging jogging inside inside the west west curb curb of Hamlin, Hamlin, i.e i.e.,.. in the southbound southbound traffic traffic lane lane of Hamlin. Hamlin. Defendant Defendant denies denies having having seen seen plaintiff plaintiff at any any time time before, before, or plaintiff ran into the side of her car. The The driver driver behind behind defendant defendant observed observed plaintiff plaintiff even as, plaintiff take "approximately "approximately two strides strides and run into the driver's driver's side side door door of' of' defendant's defendant's vehicle. vehicle. The The impact impact was was outside outside the crosswalk crosswalk but within within the intersection. intersection. Plaintiff Plaintiff claims claims to have have looked looked for for approaching approaching cross cross traffic traffic when when she was was about about "a house house and a half half away away from from the the intersection." intersection." Seeing Seeing none, none, plaintiff, plaintiff, whose whose workout workout involved involved alternating alternating intervals intervals of slow slow and fast fast running running,, began began to sprint sprint as she approached approached the intersection. intersection. Plaintiff Plaintiff acknowledges acknowledges that that she was was listening listening to music music through through head head phones phones and looking down down at her her feet feet at the time and thus thus did not see defendant's defendant's vehicle vehicle at any time time was looking before impact. impact. As plaintiff plaintiff ran into the side of defendant's defendant's car, car, the the mirror mirror struck struck her her shoulder, shoulder, before knocking knocking plaintiff plaintiff around around and to the ground ground and in turn turn causing causing her her to sustain sustain a fractured fractured left foot, foot, among among other other injuries. injuries. After After the accident, accident, plaintiff plaintiff admitted admitted her her fault fault in its occurrence. occurrence. Now Now before before the Court Court is a motion motion by defendant defendant for summary summary judgment judgment dismissing dismissing the complaint complaint on the ground ground that, that, as a matter matter of law, plaintiff's plaintiff's conduct conduct was was the sole sole proximate proximate cause of the accident accident and her her injury. injury. The The Court Court deems deems defendant's defendant's argument argument to include include the cause 2 [* 2] component component contentions contentions that that defendant defendant was not legally legally at fault fault in the the occurrence occurrence of the accident, accident, that defendant's defendant's negligence, negligence, if any, any, was was not a proximate proximate cause cause of the the accident, accident, and that that plaintiff plaintiff was guilty guilty of comparative comparative fault fault that that was at least least a proximate proximate cause cause of the the accident. accident. The The motion motion is opposed opposed by plaintiff, plaintiff, albeit albeit not vigorously vigorously in relation relation to the sub-issues sub-issues of whether whether she was was comparatively comparatively at fault fault and whether whether such such comparative comparative fault fault was at least least a proximate proximate cause cause of the accident. accident. Upon Upon its consideration consideration of the parties' parties' respective respective submissions, submissions, this this Court Court renders renders the following following determinations: determinations: The The Court Court concludes concludes that that defendant defendant failed failed to sustain sustain her her burden burden of demonstrating demonstrating her entitlement entitlement to judgment judgment as a matter matter of law dismissing dismissing the complaint. complaint. Defendant Defendant failed failed to establish establish that that she was was free free from from negligence negligence as a matter matter of law and/or and/or that that any such such negligence negligence on her her part was was not a proximate proximate cause cause of the accident accident and plaintiff's plaintiff's injuries. injuries. On the other other hand, hand, the Court Court concludes concludes that that defendant defendant sustained sustained her her burden burden insofar insofar as she sought sought to demonstrate that that plaintiff, plaintiff, as a matter matter of law, was guilty guilty of culpable culpable conduct conduct that that was was at least least a demonstrate proximate proximate cause cause of the accident. accident. Addressing first first the issue issue of plaintiff's plaintiff's own fault fault and causal causal role in bringing bringing about about the the Addressing accident, the Court Court see no alternative alternative but to determine determine as a matter matter of law law that that plaintiff plaintiff was was accident, negligent negligent in crossing crossing a street street in such such a way way as to run into the side side of a moving moving car car that that she admittedly admittedly failed failed to see or hear hear at any point point before before the impact impact (cf. (cr. Vehicle Vehicle and Traffic Traffic Law§ Law ~ 1152 [a]; Vehicle Vehicle and Traffic Traffic Law Law § ~ 1151 [bl). [b]). Clearly, Clearly, in attempting attempting to cross cross the intersection intersection on foot, foot, plaintiff plaintiff was was under under a duty duty to keep keep a proper proper lookout lookout for for cross cross traffic traffic and employ employ her her senses senses in such a way way as to perceive perceive what what was obviously obviously there there to be perceived. perceived. In sprinting sprinting across across the intersection intersection while while looking looking down, down, and indeed indeed in running running directly directly into the side side of defendant's defendant's vehicle without without even even seeing seeing it, plaintiff plaintiff failed failed to fulfill fulfill her her duty duty as a matter matter of law. Although Although it is vehicle not clear clear that that plaintiff plaintiff violated violated the Vehicle Vehicle and Traffic Traffic Law Law merely merely by crossing crossing the street street other other 3 [* 3] than in the marked marked crosswalk crosswalk (see (see Vehicle Vehicle and Traffic Traffic Law§ Law S 1151, 1152, 1152, 1155), 1155), plaintiffs plaintiffs crossing crossing of of the intersection intersection other other than in the marked marked crosswalk crosswalk appears appears to have have been been the product of of her her running running in the street, street, rather rather than on the adjacent adjacent sidewalk, sidewalk, which which is a violation violation of product Vehicle Vehicle and Traffic Traffic Law§ Law S 1156 1156 (a), which which statutory statutory violation violation amounts amounts to negligence negligence per per se (see (see Long Long v Niagara Niagara Frontier Frontier Transp. Auth., Auth., 81 AD3d AD3d 1391, 1392 [4th Dept Dept 2011 2011];]; see see also also Stalikas Stalikas United Materials, Materials, 306 AD2d AD2d 810, 810, 811 [4th Dept 2003], 2003], affd affd 100 NY2d NY2d 626 [2003]). [2003]). Given Given the v United scenario, the Court Court sees sees no alternative alternative but to conclude conclude that that plaintiffs plaintiff's demonstrable demonstrable negligence negligence scenario, was at least a proximate proximate cause cause of of the accident accident and injury. injury. However, However, for for reasons reasons stated stated infra, infra, the Court cannot cannot accept accept defendant's defendant's postulate postulate that that plaintiff's plaintiff's fault fault was was the sole sole proximate proximate cause cause of of Court the accident accident and injury, injury, to the the exclusion exclusion of any alleged alleged negligence negligence on the the part part of of defendant. defendant. The The Court Court rejects rejects defendant's defendant's argument argument that that she was was as matter matter of of law not negligent negligent in her her operation operation of of her her vehicle vehicle at the the time time and place place of of the accident. accident. Although Although defendant defendant emphasizes emphasizes that that she made made a lengthy lengthy stop at the stop sign, sign, the issue issue here here is not whether whether she was or was was not negligent negligent in failing failing to stop, stop, but rather rather whether whether she may may have have been been negligent negligent in proceeding proceeding into the the intersection intersection after after coming coming to a complete complete stop stop behind behind the the stop stop sign. sign. It is at least least arguable arguable on this this record record that that defendant defendant was was negligent negligent in proceeding proceeding across across the intersection intersection at a time time when when it was was not possible possible to do so in complete complete safety safety (see (see generally generally Vehicle Vehicle & Traffic Traffic Law§ Law S 1142 [a]). [a]). It is also also arguable arguable on this record that that defendant defendant failed failed to maintain maintain a proper proper lookout before before and while while proceeding proceeding across across the intersection, intersection, and otherwise otherwise failed failed to "exercise "exercise lookout avoid colliding colliding with any bicyclist, bicyclist, pedestrian pedestrian or domestic domestic animal animal upon upon any roadway" roadway. due care to avoid (Vehicle & Traffic Traffic Law§ Law S 1146). 1146). Although Although defendant defendant emphasizes emphasizes that that she she looked looked both ways ways (Vehicle before proceeding proceeding into the the intersection, intersection, the matter matter here here is not where where plaintiff plaintiff may have have looked looked before for for extended extended period period of of times, times, but rather rather where where she may have have failed failed to look look for for an extended extended time while while she was was looking looking elsewhere, elsewhere, or what what she failed failed to perceive perceive while while supposedly supposedly period of time 4 [* 4] looking looking left left along along Hamlin Hamlin Avenue. Avenue. Defendant Defendant acknowledges acknowledges that, that, despite despite looking looking in various various directions, directions, she never never saw saw the jogging jogging plaintiff plaintiff before before the collision collision, , meaning meaning that that defendant defendant left likewise likewise may be guilty guilty of failing failing to see what what obviously obviously was there there to be seen, seen, whether whether to the the left of the intersection intersection before before defendant defendant proceeded proceeded therein, therein, or, as apparently apparently was was the the case, case, well within the intersection intersection as defendant defendant proceeded proceeded through through it. Under Under the the circumstances, circumstances, it will be for the trier trier of fact fact to determine determine whether whether defendant defendant was negligent negligent in the the operation operation of her vehicle her vehicle for and whether whether such such negligence, negligence, like plaintiff's plaintiff's demonstrated demonstrated culpable culpable conduct, conduct, played played a causal causal accident. role in the accident. Accordingly, Accordingly, the motion motion of defendant defendant for summary summary judgment judgment dismissing dismissing the the complaint complaint is DENIED. However, However, pursuant pursuant to its authority authority under under CPLR CPLR 3212 3212 (e}, (e), the Court Court GRANTS GRANTS DENIED. defendant defendant partial partial summary summary judgment judgment on the issues issues of whether whether plaintiff plaintiff was was comparatively comparatively negligent negligent and whether whether such such negligence negligence was a proximate proximate cause cause of the the accident accident and and injuries. injuries. counsel are to report report for for a status status conference conference to be held held August August 26, 2015, 2015, at 1 1:30 All counsel :30 p.m. p.m.,, in Part 34 at 50 Delaware Delaware Avenue. Avenue. SO ORDERED: ORDERED: HON. HON. PATRICK PATRICK H. H. NeMOYER, NeMOYER, J.S.C. J.S.C. GRANTED GRANTED JUL 3 1 2015 ~ ~ O'CONNOR KEVIN J. O'CONNOR COURT COURT CLERK CLERK 5 [* 5]
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