Jiang Yi Lan v Ketcham

[*1] Jiang Yi Lan v Ketcham 2015 NY Slip Op 51194(U) Decided on July 20, 2015 Supreme Court, Queens County McDonald, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 20, 2015
Supreme Court, Queens County

Jiang Yi Lan, father and natural guardian of WILLIAM WANG, BAREN LI and SHENG PIAO, , Plaintiffs,

against

Frances Ketcham and RIFENG SHEN, Defendants.



21803/2013
Robert J. McDonald, J.

The following papers numbered 1 to 19 were read on this motion by defendant, Frances Ketcham, for an order pursuant to CPLR 3212 granting said defendant summary judgment and dismissing the plaintiff's complaint against her on the ground that she is not liable for the happening of the subject accident:

Papers Numbered

Notice of Motion-Affidavits-Exhibits......................1 - 5

Plaintiff's Affirmation in Opposition-Affidavits-Exhibits.6 - 10

Defendant Shen's Affirmation in Opposition...............11 - 14

Reply Affirmations(2)................................... 15 - 19

________________________________________________________________

This is a personal injury action in which plaintiffs, William Wang, Baren Li and Sheng Piao, seek to recover damages for injuries they each allegedly sustained as a result of a motor vehicle accident that occurred on October 5, 2013, at approximately 3:20 p.m., on Route 25 (Main Road) at the intersection of Manhanset Avenue in the Town of Southold, Suffolk County, New York.

Plaintiffs, who were all passengers in the vehicle owned and operated by defendant Rifeng Shen, claim that at the time of the accident, the Shen vehicle was making a left turn onto Manhanset Avenue when it was struck by the vehicle operated by defendant Frances Ketcham who was proceeding eastbound with the right of way on Route 25.

Plaintiffs commenced this action against the drivers of both vehicles by filing a summons and complaint on November 27, 2013. Issue was joined by service of an answer with cross-claim by defendant, Frances T. Ketcham on January 27, 2014. The answer with cross-claim of co-defendant Shen was filed February 20, 2014.

Michael J. Balamoti, Esq., counsel for defendant Frances Ketcham, now moves for an order pursuant to CPLR 3212(b), granting summary judgment in favor of the Ms. Ketcham and dismissing plaintiff's complaint against her as well as all cross-claims on the ground that co-defendant Rifeng Shen is solely liable for causing the accident. In support of the motion, Defendant Ketcham submits an affirmation from counsel; a copy of the pleadings; a copy of the police accident report (MV-104AN); an affidavit of facts from Ms. Ketcham; and a photograph of the damage to the Ketcham vehicle.

The police accident report, prepared by the responding police officer, contains a description of the accident based upon the statements of the drivers and a witness as follows:

"Veh No.1 (Shen), was proceeding westbound on Route 25 and made a left turn onto Manhanset Avenue but failed to yield the right of way to Veh #2 (Ketcham). Veh #2 (Ketcham) which was proceeding eastbound on Route 25 was struck by Veh #1 (Shen)."

In her affidavit dated December 31, 2014, Ms. Ketcham states that on October 25, 2013, she was driving her Dodge pickup truck on Main Road (Route 25) in Southold, New York. Route 25 has one lane in each direction separated by a double yellow line. At the time of the accident, Ms. Ketcham was heading eastbound towards her home. The Shen vehicle was headed westbound in the opposite direction. As Ms. Ketcham passed the intersection of Manhanset [*2]Avenue, the Shen vehicle made a left turn onto Manhanset Avenue and crossed the double yellow line striking defendant's vehicle on the driver's side near the rear tire. She states that at the time of the accident her vehicle was proceeding straight at a rate of speed of 35 miles per hour. She noticed the Shen vehicle beginning to cross into her lane when the vehicles were only a couple of feet apart. She swerved to the right but the Shen vehicle still struck her vehicle. She states that the Shen vehicle gave no warning he was about to turn and there was nothing she could do to avoid the accident.

Counsel for defendant Ketcham argues that Ms. Ketcham is entitled to summary judgment based upon the accident report and the affidavit of Ms. Ketcham. Counsel contends that the Shen vehicle violated VTL § 1141 by failing to yield the right of way to the Ketcham vehicle and turning left at the intersection without waiting until the turn could be made with reasonable safety. Counsel contends that Shen was solely negligent based upon his failure to observe and yield to the Ketcham vehicle which had the right of way and was traveling straight ahead. Further, counsel asserts that co-defendant Shen was negligent in failing to see that which under the circumstances he should have seen, and in turning left and striking the Ketcham vehicle on the side when it was hazardous to do so (citing Ahern v Lanaia, 85 AD3d 696 [2d Dept. 2011]; Rieman v Smith, 302 AD2d 510 [2d Dept. 2003]; Sureda v Diamonti, 300 AD2d 572 [2d Dept. 2002]). Counsel contends that based upon the evidence submitted, Ms. Ketcham is entitled to summary judgment dismissing the complaint against her as well as all cross-claims on the ground that Shen was negligent as a matter of law and that said negligence was the sole proximate cause of the accident. Further, Ketcham contends that there is no evidence that she was comparatively negligent.

In opposition to the motion, counsel for Rifeng Shen, Laurie M. Lewis, Esq., contends that the motion is premature as discovery has not commenced. Defendant Sheng has not submitted an affidavit in opposition to the motion.

Plaintiffs' counsel, Ji-Hyong Lee, Esq., contends that the motion is premature and further that defendant Ketcham has failed to make a prima facie showing of entitlement to judgment as a matter of law. Counsel alleges that there are questions of fact as to the causation of the accident. In support of the motion plaintiff submits an affirmation from plaintiff Baren Li, dated April 10, 2015. He states that on the date of the accident he was a front seat passenger in the Shen vehicle. He states that there was no traffic control device in either direction at the intersection where the accident occurred. He states that the Shen [*3]vehicle waited at the intersection for several seconds prior to initiating the left turn. He states that the Ketcham vehicle was moving at a very fast rate of speed towards the Shen vehicle. The Baren Li affidavit was translated by plaintiff's counsel Mr Lee. Counsel contends that the Li affidavit shows that Shen entered the intersection first to make the left turn when it struck the Ketcham vehicle. Thus, counsel asserts that is a question of fact as to whether Ketcham kept a proper look out prior to the occurrence of the accident.

In reply, Ms. Ketcham's counsel asserts that the affidavit of Baren Li is not admissible for purposes of opposing the motion because the affidavit was translated into English by Li's counsel and signed by the deponent. However, pursuant to CPLR 2101(b) a non-English speaking deponent must sign an affidavit in his native language and it must be accompanied by an English translation with an affidavit by the translator (citing 501 Fifth Avenue Co LLC v Alvona LLC, 110 AD3d 494 [1st Dept. 2013]; Reyes v Arco Wentworth Mgt Corp. 83 AD3d 47 [2d Dept. 2011]).

Upon review of defendant Ketcham's motion, the plaintiffs' and co-defendant's opposition and defendant Ketcham's reply thereto, this court finds as follows:

The proponent of a summary judgment motion must tender evidentiary proof in admissible form eliminating any material issues of fact from the case. The failure to make that showing requires the denial of the motion regardless of the sufficiency of the opposing papers (see Mastrangelo v Manning, 17 AD3d 326 [2nd Dept 2005]). If the proponent succeeds, the burden shifts to the party opposing the motion, who then must show the existence of material issues of fact by producing evidentiary proof in admissible form, in support of his position (see Zuckerman v. City of New York, 49 NY2d 557[1980]). Summary judgment should only be granted where the court finds as a matter of law that there is no genuine issue as to any material fact (see Cauthers v Brite Ideas, LLC, 41 AD3d 755 [2d Dept. 2007]).

Based upon a review of the evidence submitted, this Court finds that Ms. Ketcham has submitted sufficient evidence to demonstrate, prima facie, that defendant Shen was negligent in that he violated Vehicle and Traffic Law § 1141 in making a left turn directly into the path of Ketcham's vehicle when it was not reasonably safe to do so. The court's have held that a party is entitled to judgment as a matter of law on the issue of liability if he or she demonstrates that the sole proximate cause of an accident was the defendant's violation of VTL § 1141 in turning left directly into the path of an oncoming vehicle, which was [*4]lawfully present in the intersection (see Carroll-Batista v Bennett, 122 AD3d 661 {2d Dept. 2014]). Further, defendant Ketcham, demonstrated, prima facie, her freedom from comparative negligence (Winner v Star Cruiser Transp., Inc., 95 AD3d 1109 [2d Dept. 2012] citing Pollack v Margolin, 84 AD3d 1341 [2d Dept. 2011]; Villa v Leandrou, 94 AD3d 980 [2d Dept 2012]; Calcano v Rodriguez, 91 AD3d 468 [1st Dept. 2012]). Here the movant had the right-of-way, and was entitled to anticipate that defendant Shen would obey the traffic laws.

Having made the requisite prima facie showing of entitlement to summary judgment, the burden then shifted to co-defendant to raise a triable issue of fact as to whether Ms Ketcham was also negligent, and if so, whether that negligence contributed to the happening of the accident (see Goemans v County of Suffolk,57 AD3d 478 [2d Dept. 2007]; Jumandeo v Franks, 56 AD3d 614 [2d Dept. 2008]; Arias v Rosario 52 AD3d 551 [2d Dept. 2008]).

In opposition, both defendant Shen and plaintiff failed to raise a question of fact. Shen did not submit an affidavit in opposition to the motion and the affidavit of plaintiff Baron Li is inadmissible as it was translated by his counsel and not by a qualified translator (see CPLR 2101 [b]). Moreover, the contention of Baron Li that Ms Ketcham was speeding or that she could have avoided the accident is speculative at best.

The co-defendant's contention that the motion for summary judgment is premature is without merit. The c0-defendant failed to offer a sufficient evidentiary basis to suggest that discovery may lead to relevant evidence. The mere hope and speculation that evidence sufficient to defeat the motion might be uncovered during discovery is an insufficient basis upon which to deny the motion (see CPLR 3212[f]; Hanover Ins. Co. v Prakin,81 AD3d 778 [2d Dept. 2011]; Essex Ins. Co. v Michael Cunningham Carpentry, 74 AD3d 733 [2d Dept. 2010]; Peerless Ins. Co. v Micro Fibertek, Inc., 67 AD3d 978 [2d Dept. 2009]; Gross v Marc, 2 AD3d 681 [2d Dept. 2003]). Further, the lack of disclosure does not excuse the failure of the party with personal knowledge to submit an affidavit in opposition to the motion (see Rainford v Han, 18 AD3d 638 [2d Dept. 2005] citing Niyazov v Bradford, 13 AD3d 501 [2d Dept. 2004]).

Accordingly, as no triable issues of fact have been put forth as to whether defendant Ketcham may have borne comparative fault for the causation of the accident, and based on the foregoing, it is hereby,

ORDERED, that the motion of defendant Frances Ketcham is [*5]granted, and said defendant shall have summary judgment dismissing the plaintiffs' complaint and all cross-claims against said defendant only and the Clerk of Court is authorized to enter judgment accordingly.

Dated: July 20, 2015

Long Island City, NY

_______________________

ROBERT J. MCDONALDJ.S.C.