Faulknor v Gina's Trucking Inc.

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Faulknor v Gina's Trucking Inc. 2016 NY Slip Op 33176(U) March 7, 2016 Supreme Court, Westchester County Docket Number: Index No. 62389/2015 Judge: Charles D. Wood 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. FILED: WESTCHESTER COUNTY CLERK 03/07/2017 03:07 PM NYSCEF DOC. NO. 72 INDEX NO. 62389/2015 RECEIVED NYSCEF: 03/07/2017 To commence commence the statutory time time period period fo forr appea appealsls th e statutory as. ofnght o~nght (CPLR (CPLR 55D[al), 55 13[a)). you are are adv advised serve a copy copy ised to serve as ofth1s parries. of this order, order. with notice notice of of entry, entry. upon upon all parties. SUPREME COURT COURT OF THE THE STATE STATE OF NEW NEW YORK YORK SUPREME COUNTY OF WESTCHESTER WESTCHESTER COUNTY ---------------------------------------------------------------------x ---------------------------------------------------------------------x DIANA FAULKNOR, FAULKNOR, DIANA Plaintiff, Plaintiff, -against-againstDECISION & ORDER ORDER DECISION Index No. 62389/2015 62389/2015 Index Sequence No. No.11 Sequence GINA'S RORY J. JE JENKINS, KINS, GINA'S TRUCKING TRUCKING INC. and RORY COUNTY OF WESTCHESTER, WESTCHESTER, VILLAGE VILLAGE OF COUNTY CROTON ON HUDSON, HUDSON, AND AND TOWN TOWN OF CROTON CORTLANDT, CORTLANDT, Defendants. Defendants. -------------------------------------------------------------------x -------------------------------------------------------------------x WOOD,J. WOOD,J. following papers papers were were read and considered considered in connection connection with with defendants' defendants' The following motion for summary summary judgment: motion judgment: Defendants' Notice of Motion, Motion, Counsel's Counsel's Affirmation, Affirmation, Exhibits, Exhibits, Memorandum Memorandum of of Law. Defendants' Notice of Plaintiffs Counsel's Counsel's Affim1ation Affirmation in Opposition, Opposition, Exhibits. Exhibits. Plaintiffs Defendants' Counsel's Counsel's Reply Affirmation. Affirmation. Defendants' This action anses from a motor motor vehicle vehicle accident accident on July July 7, 2015, wherein This action anses 2015, wherein plaintiff/pedestrian was hit by defendants' defendants' tractor tractor trailer trailer as she attempted cross the entrance entrance plaintiff/pedestrian attempted to cross of Route 9 South South at its intersection intersection with Croton Point A Avenue County of of ramp of Croton Point venue in the County Westchester. Plaintiff Plaintiff opposes opposes the motion. motion. Westchester. Upon the foregoing foregoing papers, papers, the motion motion is decided decided as follows: follows: Upon [* 1] 1 of 8 FILED: WESTCHESTER COUNTY CLERK 03/07/2017 03:07 PM NYSCEF DOC. NO. 72 INDEX NO. 62389/2015 RECEIVED NYSCEF: 03/07/2017 settled that a proponent proponent of of a summary summary judgment motion must must make make a "prima "prima It is well settled judgment motion of entitlement entitlement to judgment matter of tendering sufficient judgment as a matter of law, tendering sufficient evidence evidence to facie showing showing of demonstrate the absence material issues of of fact" (Alvarez Prospect Hospital, Hospital, 68 NY2d demonstrate absence of of any material (Alvarez v Prospect NY2d 320, 324 [1986]; [1986]; Orange Orange County-Poughkeepsie County-Poughkeepsie Ltd. Partnership Partnership v Bonte, Bonte, 37 AD3d 684, 686320, AD3d 684, 2007];; Rea v Gallagher, AD3d 731 [2d Dept Dept 2007]). 2007]). Failure Failure to make make such 687 [2d Dept 2007] Gallagher, 31 AD3d such a prima facie showing showing requires requires a denial denial of of the motion, motion, regardless of the motion prima regardless of of the sufficiency sufficiency of motion (Wine grad v New York University University Medical Medical Center, Center, 64 NY2d 851,, 853 [1986]; [1986]; papers (Winegrad New York NY2d 851 Jakabovics v Rosenberg, Rosenberg, 49 AD3d AD3d 695 [2d Dept Dept 2008] 2008];; Menzel Menzel v Plotkin, Plotkin, 202 AD2d 558, Jakabovics 202 AD2d 558, 558Once the movant movant has met this threshold opposing party must must 559 [2d Dept 1994]). Once threshold burden, burden, the opposing present the existence existence of of triable triable issues of of fact (Zuckerman (Zuckerman v New present New York, York, 49 NY2d NY2d 557, 562 Nelson, 68 AD3d AD3d 1062 [2d Dept Dept 2009]). 2009]). In deciding deciding a motion motion for summary [1980]; Khan v Nelson, summary judgment, court is "required "required to view view the evidence presented in the light light most most favorable favorable to evidence presented judgment, the court opposing the motion reasonable inference inference from the pleadings pleadings and the party opposing motion and to draw draw every reasonable the proof proof submitted parties in favor of of the opponent motion" (Ye1der Walters, 64 submitted by the parties opponent to the motion" (Yelder v Walters, 762, 767 [2d Dept Dept 2009]; 2009]; Nicklas Tedlen Realty Realty Corp. Corp.,, 305 AD2d 385, 386 [2d Dept Dept AD3d 762, Nicklas v Tedlen AD2d 385, 2003]). Summary Summary judgment drastic remedy remedy and should should not not be granted where there there is any 2003]). judgment is a drastic granted where doubt as to existence existence of of a triable triable issue (Alvarez (Alvarez v. Prospect Prospect Hospital, Hospital, 68 NY2d doubt NY2d 320,324 320,324 [1986]). Generally, Vehicle Vehicle and Traffic Traffic Law §l S 1129(a) imposes a duty on all drivers drivers to drive 129(a) imposes drive at a Generally, safe speed speed and maintain distance between between vehicles, vehicles, always always compensating known maintain a safe distance compensating for any known adverse road conditions conditions (Ortega (Ortega v. City of of New York, 721 NYS2d Dept 2000]). New York, NYS2d 790 [2d Dept 2000]). A adverse driver of of a motor motor vehicle vehicle has a statutory statutory duty to yield the right right of of way to a pedestrian pedestrian and to use driver avoid colliding colliding with with a pedestrian pedestrian on the roadway roadway (see Vehicle Vehicle and Traffic SS due care to avoid Traffic Law §§ 2 [* 2] 2 of 8 FILED: WESTCHESTER COUNTY CLERK 03/07/2017 03:07 PM NYSCEF DOC. NO. 72 INDEX NO. 62389/2015 RECEIVED NYSCEF: 03/07/2017 I 52(a), as well as a common-law which she should l1112(a), l 12(a), l1146 146 and lI 152(a), common-law duty to see that that which should have have through the proper proper use of of her senses State of of New York. 41 AD3d AD3d 633 seen through senses (Domanova (Domanova v. State New York Rules of of City of of New New York Department Department of Transportation (34 RCNY) RCNY) § S 4-04(b)(l 4-04(b)(l), ), of Transportation [2007]). Rules entitled "Operators to yield to pedestrians pedestrians in crosswalk," crosswalk," provides that ""[[w]hen w]hen traffic traffic control entitled "Operators provides that control signals or pedestrian pedestrian control control signals signals are not in place or not in operation, operation, the operator operator of of a signals vehicle shall yield yield the right right of pedestrian crossing crossing a roadway roadway within within a crosswalk when of way to a pedestrian crosswalk when vehicle pedestrian is in the path path of of the vehicle vehicle or is approaching approaching so closely the pedestrian closely thereto thereto as to be in danger."" Rules of of City of of New New York Department Department of of Transportation RCNY) § S 4-04(b)(2), danger. Transportation (34 RCNY) 4- 04(b)(2), entitled "Right "Right of of way in crosswalks," crosswalks," provides provides that ""[p ]edestrians shall entitled [p ]edestrians shall not cross cross in front of of oncoming vehicles. vehicles. Notwithstanding Notwithstanding the provisions provisions of of (I) (l) of of this subdivision pedestrian oncoming subdivision (b), (b ), no pedestrian suddenly leave other place place of walk or run into the path path of shall suddenly leave a curb curb or other of safety safety and walk of a vehicle vehicle which is so close close that it is impossible impossible for the operator yield." Rules Rules of of City of which operator to yield." of New New York York Department of of Transportation Transportation (34 RCNY) RCNY) § S 4-04(c)(2) provides that that ""[n]o pedestrian shall 4- 04(c)(2) provides [n]o pedestrian Department cross roadway at an intersection intersection except except within within a cross-walk." cross-walk." NYC Rule Section Section 4cross any roadway NYC Traffic Traffic Rule that "No "No pedestrian pedestrian shall cross cross a roadway roadway except except at a crosswalk block in 04 (c) 3 states that crosswalk on any block which traffic traffic controls controls are in operation both intersections intersections bordering which operation at both bordering the block". block". , Here, plaintiff plaintiff maintains maintains that that when she stepped stepped off off the curb curb onto onto the the shoulder Here, shoulder of of the roadway with her right foot, foot, it was between between the curb and the white white line of the the shoulder shoulder of of the roadway line of roadway. The tractor tractor trailer trailer hit her when when it made made a right tum turn and crossed white line into the roadway. crossed the white shoulder of roadway where where she had stepped stepped down. down. shoulder of the roadway opposition, defendants defendants argue argue that at the time time of accident, plaintiff plaintiff was in In opposition, of the accident, violation of of New State Vehicle Vehicle and Traffic Section 11151(b), which states violation New York State Traffic Law Section l 51 (b ), which states that that no pedestrian shall suddenly suddenly leave a curb ... ...and walk into the path of vehicle which pedestrian and walk of a vehicle which is so close close 3 [* 3] 3 of 8 FILED: WESTCHESTER COUNTY CLERK 03/07/2017 03:07 PM NYSCEF DOC. NO. 72 INDEX NO. 62389/2015 RECEIVED NYSCEF: 03/07/2017 that it is impractical impractical for for the the driver driver to yield. yield. In further further support support of of their their motion, motion, defendants defendants rely rely that parties and on on the the deposition deposition testimonies testimonies of of the the parties and other other evidence evidence that that they they say say demonstrates demonstrates that that plaintiff pedestrian pedestrian failed failed to exercise exercise due due care care by looking to check check for for vehicles vehicles before entering plaintiff by looking before entering the the intersection. intersection. The The scenario scenario that that the the tractor tractor trailer trailer suddenly suddenly materialized materialized on on the the roadway roadway in the instant instant before plaintiff stepped stepped from from the the curb curb is unrealistic according to defendants. defendants. the before plaintiff unrealistic according Defendant Rory Rory Jenkins, Jenkins, who who was was the the driver driver of of the the tractor tractor trailer trailer testified testified that that he he saw saw a Defendant white man man and and a black woman walking walking on on the the pedestrian sidewalk prior prior to reaching reaching the the white black woman pedestrian sidewalk entrance ramp ramp of of Route Route 9 (I:34-35). (1:34-35). He also also saw saw these these people when he he stopped stopped at the the stop stop sign sign entrance people when and that that they they were were approximately approximately half way way up the the block his right right side. side. He He testified testified that that he he and half block to his slowly drove drove by them, them, as they they were were approximately approximately 8 feet feet from from the the comer corner when when he he passed passed them, them, slowly and that that was was the the last last that that he he saw saw of of them. them. That That when when he he turned turned about about 85% 85% of of the the truck truck before before and noticed that that the the accident accident had had occurred; occurred; that that he used used his his mirrors mirrors while while making making his his turn, turn, and and he noticed that he followed followed the the tires tires all the the way way through through the the tum. turn. No No part of his his truck truck went went upon upon the the that part of sidewalk. sidewalk. Mr. Washburn, Washburn, the the person who was was walking walking with with plaintiff testified that that he he was was getting getting plaintiff testified Mr. person who ready to step step off off the the curb curb but that plaintiff plaintiff stepped stepped off off first. first. but that ready Q. A. Q. A. Q. Q. Q. A. Q. Q. A. Now, just prior to the the accident, accident, within within five five or or ten ten seconds, seconds, did did you you see see the the tractor tractor trailer: trailer: Now, just prior Briefly, but didn't' t' - - maybe maybe I should should have have warned warned her her but but I didn' didn't t - I mean, mean, Briefly, but I didn' everything happened happened so fast. It' It'ss like like a nightmare. nightmare. everything so fast. Did you you see see the the tractor tractor trailer trailer within within five five seconds seconds prior prior to the the accident? accident? Did guess I would would say say so. so. I mean, mean, maybe should have have ... I guess maybe I should Now, earlier you you testified testified that that for the the full full ten ten seconds seconds prior prior [to] [to] the the accident, accident, you you were were Now, earlier looking at at.Ms. Faulknor and and she she was was looking looking at you. She was left: looking Ms. Faulknor you. She was to your your left: And the tractor tractor trailer trailer was was coming coming for for your right; conect? correct? And the your right; Yes, sir. Yes, Are you you sure sure you you saw saw the the tractor tractor trailer trailer prior prior to the the accident? accident? Are am not not sure sure about about anything anything at this this point point in time, time, to be honest with with you. you. (Ex (Ex J) I am be honest Ultimately, he he testified testified that that he he could could not not be sure if if he he saw saw the the tractor tractor trailer trailer prior prior to the the Ultimately, be sure 4 [* 4] 4 of 8 FILED: WESTCHESTER COUNTY CLERK 03/07/2017 03:07 PM NYSCEF DOC. NO. 72 INDEX NO. 62389/2015 RECEIVED NYSCEF: 03/07/2017 accident accident ( see Exhibit Exhibit J:89). J :89). Defendants Defendants claim claim that Jenkins Jenkins was lawfully lawfully proceeding proceeding making making his right right turn, turn, as a reasonable person person under under the circumstances circumstances and that he has demonstrated demonstrated his freedom freedom from reasonable comparative negligence negligence so they are entitled entitled to summary judgment dismissing dismissing the complaint. complaint. comparative summary judgment In contravention, contravention, plaintiff plaintiff claims claims that at the time of of the accident accident she was walking walking with a friend on the sidewalk sidewalk of of Croton Croton Point Point A Avenue venue for seven seven minutes min"utes before before the accident accident occurred. occurred. Plaintiff Plaintiff stepped stepped off off of of the curb curb into the street street with her right right foot and the tuck tuck hit her. She did not see the truck truck before before the accident. accident. She explains explains that she is statutorily statutorily blind, blind, has a prosthetic prosthetic eye but that she would would have been able to see a tractor tractor trailer trailer if it was was directly directly in front of of her. her. She was wearing wearing prescription prescription glasses glasses at the time of of the accident, accident, and did not need to use a cane. Plaintiff stepped off Plaintiff stated stated that that as soon soon as she stepped off the curb, curb, she heard heard the truck' truck'ss engine engine to her left side, defendant's trailer. She stated that the tractor tractor trailer trailer hit her as it stated that side, and then she was hit by defendant's made a right tum turn and crossed crossed the white white line into the shoulder of the roadway. roadway. Her affidavit affidavit made shoulder of reads:: "I have walked walked the san1e same way to work work 3-4 time per week week for over over 15 years, years, and have reads never had a problem problem with with traffic traffic as I crossed crossed the roadway roadway at this intersection. intersection. The The tractor tractor never trailer made made a right right tum turn crossing white line into the shoulder of the roadway roadway and hit me as I crossing the white shoulder of trailer started to cross intersection" (see (see Plaintiffs Plaintiffs Affidavit Affidavit ). Plaintiff Plaintiff cites cites that defendants' defendants' had started cross the intersection" violation of of Vehicle Vehicle & Traffic Traffic Law sections sections 1128( 1128(d) 1131 is evidence of dependants' dependants' per d) and 1131 evidence of violation negligence, as the rear wheel wheel of of the tractor tractor trailer trailer crossed crossed into the shoulder shoulder of of the road and se negligence, struck plaintiff plaintiff as the driver driver was making making a right tum turn at the intersection. intersection. struck Vehicle shall be driven Vehicle and Traffic Traffic Law Law Section Section 1131 1131 provides provides that no motor motor vehicle vehicle shall driven across, along, along, or within within any shoulder of any state controlled-access highway. highway. YTL VTL over, across, shoulder of state controlled-access 5 [* 5] 5 of 8 FILED: WESTCHESTER COUNTY CLERK 03/07/2017 03:07 PM NYSCEF DOC. NO. 72 INDEX NO. 62389/2015 RECEIVED NYSCEF: 03/07/2017 1151(b) provides that that pedestrians walk or run into the path of a §S 1151 (b) provides pedestrians shall not leave the curb curb and walk path of vehicle which which is so close close that it is impractical impractical for the driver driver to yield; yield; and VTL VTL §S I1I152(a) 52(a) states vehicle states pedestrians crossing crossing a roadway roadway at any point point other other than within within a marked marked crosswalk crosswalk , or that pedestrians ' within an unmarked unmarked crosswalk crosswalk at an intersection, intersection, shall yield the right right of of way to all vehicles vehicles within within the roadway. roadway. within Plaintiff points points out out that defendants defendants mistakenly mistakenly recount recount that that the driver driver of of the tractor tractor Plaintiff trailer made a left turn in front of of plaintiff, when defendant defendant driver made a right right turn from plaintiff, when driver made trailer Croton Point Point A Avenue onto Route Route 9 South South entrance entrance ramp and struck struck plaintiff. plaintiff. However, However, based based Croton venue onto record, this is clearly clearly nothing nothing more than de minimums error, a scrivener's scrivener's error, error, as the upon the record, minimums error, deposition testimony, testimony, the photographs, photographs, the supporting supporting depositions, depositions, and all evidence presented deposition evidence presented demonstrate that defendants' defendants' tractor tractor trailer trailer was completing completing a right right turn. on this motion motion demonstrate Taking into consideration consideration the parties parties arguments arguments and submissions, submissions, Defendants Defendants as the Taking proponents of of this summary motion, failed to meet their burden burden of of establishing establishing proponents summary judgment judgment motion, meet their freedom from comparative comparative negligence negligence as a matter matter of of law as Defendants Defendants failed to establish establish that freedom plaintiffs actions actions were were the sole proximate cause cause of of the collision collision (Pollack (Pollack v Margolin, Margolin, 84 AD3d AD3d plaintiffs sole proximate 1341 [2d Dept 2011]). 20 11]). Viewing Viewing the evidence evidence submitted submitted in support support of defendant's motion motion in 1341 of the defendant's the light most favorable to the nonmoving nonmoving party, the court court finds that that Defendants Defendants failed to most favorable demonstrate as a matter matter of defendant Jenkins exercised due care avoid the subject demonstrate of law, that defendant Jenkins exercised care to avoid the subject accident or that he was not operating operating the vehicle vehicle in a negligent negligent manner( manner( Rea Rea v Bono, Bono, 95 AD3d AD3d accident Dept 2012]). 2012]). and whether whether he defendant defendant exercised exercised due care care to avoid avoid striking striking a 856 [2d Dept pedestrian (Sale v Lee. Lee, 49 AD3d AD3d 854 [2d Dept 2008]). 2008]). As the question question of comparative pedestrian (Sale of comparative negligence is generally generally a question question for the jury (Jahangi v Logan Logan Bus Co Co.,.. Inc., Inc., 89 AD3d AD3d 1064 negligence jury (Jahangi 2011]), Court finds that there is a triable triable issue of of fact precluding precluding summary summary [2d Dept 2011 ]), this Court 6 [* 6] 6 of 8 FILED: WESTCHESTER COUNTY CLERK 03/07/2017 03:07 PM NYSCEF DOC. NO. 72 INDEX NO. 62389/2015 RECEIVED NYSCEF: 03/07/2017 judgment as to whether part contributed judgment whether any any negligence negligence on on defendant's defendant's part contributed to the the accident, accident, by failing to keep keep a proper proper lookout, lookout, by traversing in the the shoulder shoulder while while making making his his turn, tum, or or failing by traversing otherwise. Further, Further, the the above above facts facts may may lead lead a fact fact finder finder to believe believe that that plaintiff suddenly left left otherwise. plaintiff suddenly the curb curb and and walked walked or or ran ran into the path of defendant's defendant's vehicle, vehicle, making making it impossible impossible for for the into the path of defendant defendant to yield yield or or to question question whether whether the the pedestrian pedestrian has has exercised exercised reasonable reasonable care care in stepping off off the the sidewalk. sidewalk. For For these these reasons, reasons, Defendants' Defendants' motion motion must must be denied. denied. stepping All matters matters not not herein herein decided decided are are denied. denied. This This constitutes constitutes the the Decision Decision and and Order Order of of All the court. court. the NOW, therefore, therefore, it is hereby hereby NOW, ORDERED, that that Defendants' Defendants' motion motion for for summary summary judgment denied; and and it is further further ORDERED, judgment is denied; ORDERED that that Plaintiff Plaintiff shall serve a copy copy of of this this order order with with notice notice of of entry entry upon upon the the ORDERED shall serve parties within within ten ten (10) (l0) days days of of entry, entry, and and file proof of service service on on NYSCEF within five five (5) days days parties proof of NYSCEF within of service; service; and and it is further further of ORDERED, that that the the parties parties are are directed directed to appear appear on ORDERED, 9:15 A.M. A.M. at 9:15 l.I~ A-. : I '-'-14 ~r: ra ~r courtroom 1600, the the Settlement Settlement Conference Conference Part, Part, Westchester Westchester County County in courtroom Courthouse, 111 Dr. Dr. Martin Martin Luther Luther King King Jr. Jr. Blvd., Blvd., White White Plains, Plains, New New York York 10601. 10601. Courthouse, Dated: March March 7, 2016 2016 Dated: White Plains, Plains, New York York White 7 [* 7] ,,2017, 2017, 7 of 8 FILED: WESTCHESTER COUNTY CLERK 03/07/2017 03:07 PM NYSCEF DOC. NO. 72 To: To: RECEIVED NYSCEF: 03/07/2017 Mallilo & Grossman, Grossman, Esqs. Esqs. Mallilo Attorneys for Plaintiff Attorneys for Plaintiff 163-09 163-09 No1ihern Northern Blvd. Blvd. New York Flushing, Flushing, New York 11358 11358 Leonard M M.. Cascone, Cascone, Esq. Esq. Leonard Cascone & Kluepfel, Kluepfel, LLP LLP Cascone Attorney for for Defendants Defendants Attorney Rory J. Jenkins Jenkins Rory Gina's Trucking Trucking Inc Inc Gina's 1399 Franklin Franklin Avenue, Avenue, Suite Suite 302 302 1399 Garden City, City, New New York York 11530 11530 Garden Morris Duffy Duffy Alonso Alonso & Faley Faley Morris Attorneys for for Defendant Defendant Attorneys Village of of Croton Croton Village Floor Two Rector Rector Street, Street, 22 22ndnd Floor Two New York, York, New New York York 10006 10006 New Syma B. Funt, Funt, Esq. Esq. Syma Robel1 F. Meehan Meehan Robert Westchester County County Attorney Attorney Westchester Attorneys for Defendant Defendant Attorneys County of of Westchester Westchester County 148 Martine Martine A Avenue 148 venue White Plains, Plains, New New York York 10601 10601 White John J. Walsh, Walsh, Esq. Esq. John Hodges Walsh Walsh & Messemer, Messemer, LLP LLP Hodges Attorneys for for Defendants Defendants Attorneys Town of of Cortlandt Cortlandt Town 55 Church Church Street-Suite Street-Suite 211 White Plains, Plains, New New York York 10601 10601 White 8 [* 8] INDEX NO. 62389/2015 8 of 8

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