Letourneau v Plunkett

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Letourneau v Plunkett 2016 NY Slip Op 32528(U) September 9, 2016 Supreme Court, Suffolk County Docket Number: 13-2122 Judge: Joseph Farneti Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] con INDF.X :.Jn. 13-2122 CA L. No. 15-02056\,IV Sl ' PRU..11::: COl ' RI - SI :\Tl · 01· :-\ !: \\' YURK I.. \.S. P:\RT 37 - SL I rUl.K COl l:'\·1Y PRESE N T: I Ion. .JOSEPH FARNETI /\cting Justice Supreme Court MOTION 0 .A TF AD.I. DATF -+-I-+- 16 5-19-16 Mot. Seq. H003 - tv!Ci: C ASC DI SP ---------------------------------------------------------------)( TIERNEY & T IERNEY. ESQS. ,\NI'\ LFTOL'RNEAU. /\ttorn~y Plaintiff. for Plaintiff -+09 Route 112 Port Jefferson Station. 1 C\\ \ ' ~)rk I 1776 - against JAME ' G. PU ' KETT and JESSICA COROT'. BELLO & LARKI Attorney for Defendants 150 Motor Park\rny - Suite .+05 Hauppaugc. cw York 1 L 788 Defendants. ---------------------------------------------------------------)( Upon the fol lowing papers numbered I to 24 read on thi s motion for summary jucl!1,ment : Notice of Motion and su1'>poning papers I - I ~ : Answeri ng A flidav its and supporting papers 15 - 19 : 0 L her 20 - 24 : it is, ORDJ:.,°'RED that de fendants' motion for summary judgment dismiss ing all claims against them is granted. Th is ad ion \\as commc:1H.:~d by plaintiff Ann Letourneau to reciJ\ l:!r damage's for injuric:-. she allege<lly sustained on. O\·ember 12. 2010. when a motor vehicle she was operating on Route 3-+7 in Port Jefferson , tation . . ew York was struck by a vehicle operated by defendant James G. Plunkett and O\\'ned b~ defendant .Jessica Cordts, \Yho was riding as a passenger at the time. Defendants no\\· move for summary judgment on the grounds that plaintiff \\'as the sole proximate cause of the accident in question. that plaintiff fail ed to yie ld the right-of-\\·ay. and that plaintiff ,·iolated Vehicle and Traffic La\\' ~ 1141. In support their motion. defendants submi t copies of the pleadings. deposition transcripts of the parties, two pages of a certified MV-1 04A police accident repo rt. and a transc ript of the deposition testimony of non party witness Catherine M. Garrison. [* 2] l.Llourncau ,. Pl unkl'll lnde'\ \Jo. 13-2 122 P::i.gc 2 her deposi Lion. plaintiff testi tied that she ''as operating her 'ehic le eastbound on Rnutc: 3-l 7 in Pun .kffcrson Station. 1e\\' York at appro,imatcly 7:30 p.m .. that the \\Cather \\'US clear. that the rnaJ,,a~ \\tlS dr~. and that it ''as J ark out. She indicated that she intended tn make a left turn intu th1.: I [omc Goods shopping center. \\'hich is located on the north side or Route 3-l 7 at the corner of TcrT) ,.i Ik Road. Pluin ti trtestilied that in the area of he r intended left turn. Route 3-l 7 has t\\'O lanes heading \\estbound and t,,·o eastbound lanes of travel. a left turning lane on its eastbound side. and is not n:gulated by any tral'li1.: control devices. Plaintiff stated that she dro\'e her vehick into the left turning lane. waited several min utes. then initiated h...::r left turn toward the shopping center. She indicated that she heg<.1 11111\)\'ing her veh icle appro:\i mately hall\, ay across the wes tbo und lert Ian..:: or Route 3..J. 7. lh ~H she k)LlkcJ riglu again ·'j ust to make sure ... and that she .. saw a car comi ng in the krt lane stra ight al Iher!. " Pl ai ntifftcsti Ci ed that she then applied her w hi clc's brakes and ··saw the two h...::adlights heading towards lherl. '. She l"urther testified that the other vehicl e "was going at such a rate of speed that . .. fshel didn·t have a chance to get out of his way." Plaintiff testifi ed that the front of defendants· vehick struck the front passenger side of her vehicle "around a second-and-a-half . after she first saw it. r\l Defendant James G. Pl unkett testified that on the dace and time in question. he was operating his girlfriend Jessica Cordts· vehicle westbound on Route 3-l7. and that she was in the passenger seat. He indicated that he thinks the speed limit at the subject location \\·as 45 miles per hour and that he ,,·as tra\·eling in the left lane at .. [a]bout -l5. 50 (mphj :' Plunkett testified that he first saw plaintiffs vehic le stopped in the left turning lane \\·hen he was .. about eight car lengths .. from it. He fu rthe r testified that "la] t the ve ry last minute.. plaintiff s vehicle pulled out in front of him at a fa st rate of speed. Plunkett stated chat hi s vehicle was only approximately half a car length from plaintiff s vehicle when she began her left turn. He testifi ed that at the time of the impact. hi s foo t was on the gas pedal and he did not turn his steering \\'heel or honk his horn. Dd'c nda nt Jess ica Cordts testified that prior to the accident Plunkett had stopped at a red traffic Iight at the intersection or Route 34 7 and Terryville Road, which is located " a couple of hundred feet.. east o 1 the accic.lt!nt location. Cordts testified that upon said traflic li ght turning green. they proceeded · west hound on Route 34 7 and Plunkett operated her motor vehi cle to a maxi mum speed of appro:-.; im atc ly 40 miles per hour befo re the impact. Cordts explained that she only saw plaintiff's vehicle fo r .. maybe a seco nd" before her vehicle came in contact with it. that plaintiffs \'ehic le bad either ··slo\\'c..:<l .. or" as at rest immediately prior to the impact. and that she saw plaintiffs passengerside door was positioned directly in front of her at the time. She testified that she did not hear any horns sound. exclamations by Plunkett. or tires screeching prior to the impact. on party \Yitness Catherine M. Garrison was deposed and testified that at the time of the accident in question. she was stopped in the shopping center parking lot located on the north side of Route 3-l 7 and he r veh icle was parallel to that road. \its. Garrison indicated that as she \\·as stopped. she saw a ,·chick stopped in the left turning lane of eastbound Route 3-l7. She stated that she belie' cd the vehicle was stopped in anticipation of e ither com ing across the westbound lanes of Route 3-l 7 or making a U-turn. tvls . Garrison testified that she saw a vehicle trave ling v\'estbo und ··v•ithin the speed Iirni t" and lh::n the vehicle fac ing north "·started to pull out." striking the westbound Ychicle. [* 3] Letourneau \' Plunkett Index No. l 3-2122 /\.party mo\·ing t'or summary _judgment must make a primufi.Jcie sho\\·i ng of ent itleme nt to ' .jUdl!.n1Clll <lS a 111<\[lLT 1)[' Jaw. tendcrill!..!_ suJlic ic:nl C:\ idcnCE to demons trate the absence u!' Hl1\" material .__ ..__ . issues o !' fact (Nomura Asset Capital Corp. 1• Cadwalader, 1Vickersluun & T4i LLP. 26 NY3cl . J.O. 19 NYS3d ..J.88 (20 15]: Alvarez l' Prospect Hosp .. 68 NY2d 320. 508 NYS2d 923 [1986]). If the mlwi ng party produces the requ isite evidence. the burden then shifts to the nonrnoving party to establish the ex istence of material issues of fact which require a trial of the act ion (Nomura. suprn; see also Vega 1 Restani Co11str. Corp.. 18 NY3d 499. 94:?. NYS2d 13 [20 1:?.] ). Mere conclusions or uns ubstantiated alkgations are insufficient to raise a triable issue (Daliendo v Jolt11so11 . 14 7 AD2d 312. 5-J.3 NYS2d 987 l2d Dept 1989)). In decid ing the motion. the Court 1nust view all evidence in the light most fovorable to the nonmoving party (Nomura. supra: see also Ortiz v Varsity Holdiugs, LLC. 18 NY3d 335. 339. 937 NYS.2d l 57 l20 l l ]). 1 A dri ver who has the right-of-way is entitled to anticipate that other drivers will obey the traffic laws requi ring them to yield to the driver with the right-of-way (see Vehicle and Traffic Lavv ~ l 128 [a]: Vazquez v New York City Tr. A ut/1.. 94 AD3d 870, 941 NYS2d 887 [2d Dept 2011 ]: Bonilla v Calabria. 80 A03d T20. 9 15 NYS2d 61 S [2cl Dept 201 1]). "The dri ver of a vehicle intending to turn to the left ... into [a] ... driveway shall yield the right of way to any vehi cle approaching from the oppos ite direction vvhich is within the intersection or so close as to constitute an immed iate hazard" (Vehicle and Traffic Lav,• § 1141: see A ttl v Speller. 13 7 AD3d 1176, 28 NYS3d 699 (2nd Dept 20 16]). The failure to do so constitutes negligence as a matter of law (Co/pan v A llied Cent. Ambulette, Inc.. 97 AD3d 776. 777, 949 NYS2d 124. 125 [2d Dept :?.012]; Vainer v DiSalvo. 79 AD3d 1023. 1024. 914 NYS2d 236, 237 (2d Dept2010]). "Although a driver with a right-of-way also has a duty to use reasonable care to avoid a collision ... a driver with the right-of-way who has only seconds to react to a vehicle which has failed to yield is not comparatively negligent for faili ng lo avoid the collision" (Aft/ v Spetter, supra at 1176; see also A /tern v Lanaia. 85 AD3d 696, 924 NYS2d 802 I. 2d Dept 20 11]; Heath v Liberato. 82 AD3d 841, 918 NYS2d 353 [2d Dept 201 I]: Kann v 1 Haggies Paratransit Corp., 882 NYS2d 129. 130. 63 AD3d 792 [2d Dept 2009)). Initially. the Court notes that portion of the MV-104A police accident report entitl ed "Accident Description/Officer' s Notes" constitutes hearsay not subject to an exception, is inadmissible. and has not been considered by the Co urt in rendering this decision (see lacagnino v Gon zalez. 306 AD2d 250. 760 . YS2d 53 3 [2d Dept 2003): Hegy 1• Coller. 262 AD2d 606. 692 NYS2d -+63 [2cl Dept I 999]). Here. detendants have established their primafacie entitlement to summary judgment by subm itting evidence that plaintiffs failure to yield the right of way to thei r oncoming vehicle whil e attempti ng to make a left turn across two lanes of traffic. and into a shopping center's driveway, \.vas the so le prox imate cause of the subject accident (see Vehicle and Traffic Law§ 1141 : Anze/ v Pistorino. I 05 AD3d 784. 962 NYS2d 700 [2d Dept 20 13]: Colandrea v C/10k11. 94 AD3d l 034. 943 NYS2d 166 [2d Dept 2012]). Plaintiff had a duty to yield to defendants' vehicle pursuant to Vehicle and Traffic Laws l 141. as well as a "common-law duty to see that which [she] sho uld have seen [* 4] Letourneau v Plunkett lnckx No. 13-2122 Pag1; -1- through the proper use of [her] senses·' (Botero 1· Erraez. 289 AD2cl 274. -::..75. 73-1- NYS2d 565. 566 I2d Dept 200 11: sec ulso Ferrara 1· Castro. 283 AD2d 392. 72-1- NYS2cl 8 l 1_2d Dept 2001 IJ. Del'endanls hav ing estab li shed a primuf(1cie case of entitlement to summary j udgment. shifted Lhe burde n to plai ntiff to raise a triable issue of material fact (see Alvarez v Prospect Hosp .. s11pru). Plaintiff opposes defendants· motion on the grounds that: ( 1) the unsigned deposition transc ripts submitted by defendants in support of their motion are inadmissible: (2) the accident report is incomplete: and (3) triable facts exist as lo whether Plunkett was operati ng hi s vehicle at an exccss i,·e speed or cou ld have a,·oided the accident. In oppositi on. plaintiff submits one photograph and a cen ilied copy of a MV-104A pol ice accident repo rt comprised of six pages. Plaintiffs argu ment regarding the admissibility of unsigned transcripts. the service of which upon the various parti es has not been proven by movants. is unavailing here. First. as the unsigned deposition transcripts of P lunkett and Cordts \Vere submitted in suppo11 of thei r motion. such transcripts were adopted by each as accurate (see Gezelter v Pecora. 129 AD3d I 02 l. I 3 NYS3d I ..J. l [2d Dept :20 15]). As to the deposition transcripts of plaintiff and nonparty Catherine M. Garrison. submitted by defendants in support of the instant motion. each has been certified by the court reporter and plai ntiff has not challenged the accuracy of those transcripts. Therefore. the Court may consider them (see lee v Mason. 139 A03d 807, 33 NYS3d 76 [2d Dept 20 16]; Gezelter v Pecora. supra). With regard to the MV-104A police accident report. plaintiff is correct in her assertion that movants failed to include in their moving papers the pages of that report \.vhich contain the purported contemporaneous written statements of non party witnesses Catherine M. Garrison and Margaret R. Hume!. As plainti ff has included the missing page in her opposition to this motion. the Court will duly consider Ms. Garrison's written statement. Hovvever. the written statement ascribed to Ms. Hurne! is uns,vorn .. uns igned, and therefore inadmissible hearsay not subject to any exception (see Dalie11do v Joltnson, supra). Plainti ff's final contention is that triable facts exist as to whether defendants were comparatively negligent by operating their vehicle at an excessive speed and failing to take evasive action to avoid her vehicle. Here. neither of the parties has alleged that they sa'"' the other' s vehicle for more than two seconds before the impact. Such a brief period of time in which to react is generall y insuffic ient to raise a triable issue of fact with respect to a driver's failure to take evasive action and prov ide a basis for a finding of negligence on the part of defendants (see Yelder v Walters. 64 AD3d 762. 883 YS2d 290 r2d Dept 2009]; Lupowitz v Fogarty, 295 AD2d 576. 744 NYS2d 480 [2d Dept 2002J : see also le Claire v Pratt. 270 AD2d 612, 704 NYS2d 354 [3d Dept 2000]) . Plunkeu·s musing that he ""thinks" the speed limit in the area of the accident was 45 mph and that the maximum speed he attained was "'[a]bout 45. 50 [mph] ,'' even if accepted as fact, is de 111i11imis and not a proximate cause of this acc ident given defendants' clear possession of the right-of-way. espec ially when coupled with Ms. Garri son· s svvorn testimony that defendants were travel ing '·withi n the speed Iim if" (see Payne v Rodriguez. 288 i\D2d 280. 73 7 NYS2d 3 70 [2cl Dept 200 !"I; Galvin v Zach oil, 302 AD2d 965. 755 NYS2d 175 [4th Dept 20031). Plaintiffs testimony concerning the speed of defendants' vehicle is [* 5] Letourneau v Plunkett lnclc:--: ~o. 13-2 122 Page 5 ,·ague and foils to ra ise an issue o f fact (set' Yelder NYS2 d 748 l2d Dept 2008]). 1• Walters. s11pru: Batts 1• Page. 51 AD3d 833. 858 Acco rding ly. deli..'1 Klants· motion fo r surnmary judgment dismissing plaintiffs claims against them is granted. GRANTED Dated: September 9. 20 16 X SEP - 9 2016 FINA L DISPOSITION To: RUSSO. AP07NANSKI & TAMBASCO Attorney for Defendant Letourneau in Action # 1 875 Merrick A venue Westbury. Nevv York I 1590 THE BONGIORNO LAW FIRM, PLLC Attorney fo r Plainti ffs Plunkett and Cordts in Action # 1 250 Mineo la B lvd. Mineola. ew York 11501 NON-FI NAL DISPOSITION

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