Villalobos v Rodriguez

Annotate this Case

Download PDF

Villalobos v Rodriguez 2017 NY Slip Op 33492(U) May 26, 2017 Supreme Court, Westchester County Docket Number: Index No. 61940/15 Judge: Mary H. Smith 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 05/26/2017 12:24 PM NYSCEF DOC. NO. 40 INDEX NO. 61940/2015 RECEIVED NYSCEF: 05/26/2017 DECISION AND ORDER ORDER DECISION To commence commence the the statutory statutory To period of of appeals appeals as as of of right right period (CPlR 5513[a]), 5513[a]), you you are are advised advised (CPLR to serve serve a copy copy of of this this Order, Order, to with notice notice of of entry, entry, upon upon all all with parties. parties. SUPREME COURT COURT OF THE THE STATE STATE OF NEW NEW YORK YORK SUPREME .." IAS lAS PART, PART, WESTCHESTER WESTCHESTER COUNTY COUNTY Present: HON. HON. MARY MARY H. SMITH SMITH Present: Supreme Court Court Justice Justice Supreme --·-----------------X -------------------------------------------~---------------------------------)( ANTHONY VILLALOBOS, VillALOBOS, ANTHONY Plaintiff, Plaintiff, MOTION. DATE: DATE: 5/26/17 5/26/17 MOTION. INDE)( NO.: NO.: 61940/15 61940/15 INDEX -against-againstEDWIN RODRIGUEZ RODRIGUEZ and and GERSON GERSON RODRIGUEZ, RODRIGUEZ, EDWIN Defendants. Defendants. --------'-----------X ----------------------------------~-------------------------------------------)( The following following papers papers numbered numbered 1 to 7 were were read on this this motion motion by plaintiff plaintiff for for partial partial The summary judgment on the · summary judgment the issue issue of of liability, liability, etc. Papers Numbered Numbered Papers Notice of of Motion Motion -Affirmations - Affirmations (Chiariello) (Chiariello) - Exhs. (A-J) (A-J) .............................................. 1-4 Notice Answering Affirmation Affirmation (Melchione) (Melchione ) - Exhs. (A-8) (A-B) ..........................:. : ............................ 5-6 Answering Replying Affirmation Affirmation (Chiariello) (Chiariello) .................................................................................. 7 Replying Upon the the foregoing foregoing papers, papers, it is Ordered Ordered and adjudged adjudged that that this this motion motion by plaintiff plaintiff Upon for partial partial summary summary judgment the issue issue of of liability liability is disposed disposed of of as follows: follows: for judgment on the This negligence negligence action action arises arises out out of of a a single single vehicle vehicle crash crash occurring, occurring, at This approximately midnight, midnight, on October October 23, 2014, 2014, on Route Route 9A-Albany 9A-Albany Post Post Road, Road, in the the Town Town approximately of Pleasantville. Pleasantville. At At the the time, time, plaintiff plaintiff had been been a front front seat seat passenger passenger in a Mitsubishi Mitsubishi of -1- [* 1] 1 of 8 FILED: WESTCHESTER COUNTY CLERK 05/26/2017 12:24 PM NYSCEF DOC. NO. 40 INDEX NO. 61940/2015 RECEIVED NYSCEF: 05/26/2017 Evolution sports vehicle vehicle being driven by defendant defendant Edwin Evolution special special edition edition sports being driven Edwin Rodriguez Rodriguez ("defendant"), years of of age, which which had been owned owned by defendant's defendant's brother, ("defendant"), then then 22 years brother, defendant defendant Gerson Gerson Rodriguez. Rodriguez. had been raining according to plaintiff's It ,had raining hard and, according plaintiffs examination subject crash, defendant defendant had examination before before trial testimony, testimony, immediately immediately preceding preceding the subject been been driving driving north north in the left lane of the two lane roadway. roadway. Plaintiff that traffic traffic at that that time time had been "light," and that that a red Plaintiff had testified testified that been "light," Mercedes traveling north in the right lane of of Old Albany Albany Post certain Mercedes vehicle, vehicle, traveling Post Road, at a certain point, defendant's vehicle, vehicle, whereupon whereupon defendant defendant had accelerated accelerated his vehicle vehicle point, had passed passed defendant's to "catch testified that that defendant's defendant's speed speed at that that time time had been "maybe" "catch up." Plaintiff Plaintiff had testified been "maybe" approximately 70 to 80 miles According to plaintiff's testimony, neither approximately miles per hour. According plaintiff's testimony, neither he nor nor defendant had said anything that time. time. The The vehicles vehicles then then both continued driving driving defendant anything at that both had continued "kind of of fast," their speed, speed, but then then the Mercedes defendant's fast," maintaining maintaining their Mercedes had passed passed defendant's vehicle second time. time. At that that point, as defendant's defendant's vehicle vehicle had been continuing "up vehicle for for the second been continuing , I . I the hill," where the left, the posted speed limit approximately the where the the road curves curves to th~ posted speed limit had been been approximately , miles per per hour. Plaintiff Plaintiff had testified 30 or 35 miles testified that that defendant's defendant's vehicle vehicle had "started "started veering veering to the left," whereupon whereupon defendant defendant had lost control control of his vehicle, vehicle, crossing crossing over over the the double double solid lane into into the the southbound southbound traffic solid traffic lane, across across that that traffic traffic lane, eventually eventually crashing crashing into a telephone telephone pole. Plaintiff Plaintiff had testified but that testified that that he thought thought the the car car had flipped flipped but that he "really don't don't remember remember because because 'itit happened happened just "really just so fast." fast." When When the the vehicle vehicle eventually eventually stopped, it was was upright upright on all four stopped, four tires. tires. Plaintiff had testified testified that, that, "[i]f "[i]f [he is] not not wrong, wrong, [he's] [he's] pretty pretty sure sure [defendant] [defendant] told Plaintiff [him] that that his tires tires were were bald." bald." [him] Defendant too too had testified testified regarding regarding the the circumstances circumstances the the night night of of the the crash. crash. Defendant -2-2- [* 2] 2 of 8 FILED: WESTCHESTER COUNTY CLERK 05/26/2017 12:24 PM NYSCEF DOC. NO. 40 INDEX NO. 61940/2015 RECEIVED NYSCEF: 05/26/2017 According defendant, the surrounding surrounding traffic traffic on Route Route 9A at that that time time had been According to defendant, "medium." "medium." Defendant had not been specifically specifically questioned questioned regarding regarding whether whether a red Defendant Mercedes also also had been been driving driving northbound northbound on Route Route 9A at that that time. Accordi~g Mercedes Accordi~g to defendant, the speed speed limit limit on 9A is 30 or 35 miles miles per hour hour and that that his maximum maximum rate of defendant, speed had been been 30 to 35 miles miles per hour. Once Once defendant's defendant's vehicle vehicle had reached reached the area area speed of the roadway roadway that that defendant defendant himself himself has described described as "a dangerous dangerous uphill uphill curve," curve," his of vehicle has begun begun to slide slide across across the southbound southbound lane. Defendant Defendant had yelled yelled to his vehicle passengers, "yo, I can't can't control control it. I was was like, yo, hold on," and he had downshifted downshifted from from fifth fifth passengers, gear to third third gear, gear, and then then into neutral. neutral. Defendant Defendant had testified testified that that his vehicle vehicle had slid gear approximately 100 feet feet and that, at the point point that that it had struck struck the the pole, it had been riding approximately wheels. The The vehicle vehicle never never had flipped flipped over, according according to defendant. defendant. on two wheels. Defendant had testified testified that that his Mitsubishi vehicle had been been purchased purchased 6 to 7 months months Defendant Mitsubishi vehicle before the the subject subject crash crash as a race car and that that he had raced raced it several several times times at a before professional racetrack. racetrack. Defendant Defendant had testified testified that that he had been been employed employed in 2014 2014 as an professional auto mechanic, mechanic, that that he had been been "the mechanic" mechanic" for for the car, and that that the vehicle vehicle "always "always auto something going going on with it," "[s)uspension "[s]uspension wise," wise," "[i]t always always felt felt funny funny ... so had, like, a little something [he] tried tried to make make any any turns turns with it or nothing nothing for for that that reason." reason." Defendant Defendant had put the the (he] vehicle up on the the lift prior prior to the the crash crash and, although although he had observed observed the the vehicle's vehicle's "control "control vehicle arm"and that that there there had been been some some "light" "light" rust forming forming around around it, he never never had found found a arm"and problem. After mentioning the the suspension suspension issue issue to his brother brother about about one one or two months months problem. After mentioning prior prior to the the collision, collision, they they together together had taken taken the the vehicle vehicle to the the dealer dealer that that they they had purchased it from. from. purchased The dealer dealer ·had .had test test drove drove the vehicle vehicle and inspected inspected it on a lift; The ultimately, the the dealer dealer had advised advised that that they they could could not find anything anything wrong wrong with with the vehicle vehicle ultimately, -3-3- [* 3] 3 of 8 FILED: WESTCHESTER COUNTY CLERK 05/26/2017 12:24 PM NYSCEF DOC. NO. 40 INDEX NO. 61940/2015 RECEIVED NYSCEF: 05/26/2017 that it "was "was good, good, perfect." perfect." Defendant Defendant had testified testified that that he had tweaked tweaked 'the 'the boost" boost" on and that the vehicle's vehicle's turbo turbo engine. engine. the Approximately Approximately two two years years after after the the crash, crash, defendant defendant had received· received a safety safety recall recall notice from from Mitsubishi Mitsubishi regarding regarding the the vehicle's vehicle's control control arm suspension. suspension. This This recall recall notice, notice, notice copy of of which which is included included at bar, states states that that here here is defect defect related related to motor motor vehicle vehicle safety safety a copy vehicles operated operated in cold weather weather states states where where road salt salt is used used and in vehicles [t]he inside inside and and outside outside surfaces surfaces of of the the front front cross cross members members used used on [t]he certain vehicles, vehicles, if exposed exposed long term term to snow snow melt melt water water and and anti-freezing anti-freezing certain agents, may may corrode corrode due due to insufficient insufficient performance performance of of the the rust rust protection protection ... agents, Should significant significant corrosion occur over over time, time, a lower lower control control arm arm could could Should corrosion occur eventually become become detached detached resulting resulting in loss of of vehicle vehicle control control and a eventually potential collision. collision. potential Included in the the record record at bar bar is a copy copy of of the the MV-104A MV-104A Police Police Accident Accident Report Report Included wherein the the responding responding police police officer officer had recorded recorded that. that. defendant defendant "states "states that that he lost lost wherein control of of his vehicle vehicle on the the wet wet pavement pavement and decline decline of of the the roadway, roadway, causing causing the the vehicle vehicle control spin out out and hit telephone telephone pole_." pole:" to spin Presently, plaintiff plaintiff is moving moving for for partial partial summary summary judgment the issue issue of of liability,. liability, . Presently, judgment on the arguing that that he had been been an "innocent "innocent passenger'' passenger" in defendant's defendant's speeding speeding vehicle vehicle over over arguing which defendant defendant had lost lost control. control and that that plaintiff plaintiff accordingly accordingly is entitled entitled to liability liability judgment which judgment against defendants. defendants. against Defendants Defendants oppose oppose the the motion, motion, arguing arguing that that there there are clear clear questions questions of of fact fact as to whether or not not this this crash crash had been been caused caused by the the defect defect of of the the vehicle's vehicle's control control arm and and whether due to any any action action or inaction inaction on defendants' Defendants maintain maintain that not due defendants' part. Defendants that the the vehicle vehicle been maintained maintained in pristine pristine condition, noted mechanical mechanical problem problem had been been had been condition, that that the noted thoroughly checked checked out ultimately having having represented represented that thoroughly out with the the dealer dealer ultimately that the the vehicle vehicle had -4-4- [* 4] 4 of 8 INDEX NO. 61940/2015 FILED: WESTCHESTER COUNTY CLERK 05/26/2017 12:24 PM NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 05/26/2017 been that at the the time crash defendant defendant had been driving within within the the speed speed limit, been fine, that time of of the crash been driving in traffic, confronted with an "emergency "emergency situation," situation," and that that he had traffic, whereupon whereupon he had been confronted done would have done to avoid avoid the crash, crash, and thus thus done everything everything a reasonably reasonably prudent prudent person person would have done that therefor. that defendants defendants have have no liability liability therefor. '"An support of [his or] her for summary summary "'An innocent innocent passenger passenger ... ... who, in support her motion motion for judgment, submits that the accident accident resulted from the driver driver losing control of the judgment, submits evidence evidence that resulted from losing control vehicle, the driver driver to come come forward forward with an exculpatory exculpatory explanation.'" explanation."' vehicle, shifts shifts the burden burden to the nd Dept. 2008), Pandey A.D.3d 634, 635 635 (2nd 2008), citing citing Siegelv. Siegel v. Terrusc1, Terrusc1, 222 222 AD.2d A.D.2d Pandey v. Parikh, Parikh, 57 AD.3d nd Dept. 1995). 428, 428-429 428-429 (2 nd 1995). Plaintiff showing of his entitlement entitlement to judgment judgment as a matter Plaintiff made made a prima prima facie facie showing matter of law by submitting evidence establishing that this this had been a single-vehicle single-vehicle crash crash that that occurred occurred submitting evidence establishing that when control of of the vehicle vehicle he had been driving. See See Pane Cisilino, when defendant defendant had lost lost control been driving. Pane v. Cisilino, nd 144 A.D.3d 567 (1 2016); Johnson Johnson v. Braun, A.D.3d 765 765 (2 nd Dept. 2014); 2014); 144 AD.3d (1stst Dept. 2016); Braun, 120 AD.3d nd Dept. 2013). Mughal A.D.3d 886, 88 (2nd 2013). Mughal v. Rajput, Rajput, 106 AD.3d It appears this Court Court that that defendants defendants actually actually are raising two separate separate defenses defenses appears to this raising two in support that plaintiff's summary judgment judgment motion denied; first, support of their their argument argument that plaintiff's summary motion must must be denied; that vehicle had a mechanical which proximately caused defendant defendant to that the the vehicle mechanical malfunction malfunction which proximately had caused lose control for which which defendant defendant is not liable, second, that that defendant defendant had control and crash, crash, for liable, and second, been operating operating his vehicle limit in a safe manner and that been vehicle within within the speed speed limit safe manner that the the vehicle vehicle had gone into into an unavoidable unavoidable skid for for which which defendants defendants do not not have have liability. liability. gone Firstly, this this Court Court finds finds that that defendants defendants have have failed failed to raise raise any any triable triable issue issue of of fact fact Firstly, regarding whether whether a mechanical mechanical failure failure had caused caused the the vehicle vehicle to skid and and crash, crash, on regarding October 23, 2014. 2014. Notwithstanding Notwithstanding both both the the Mitsubishi Mitsubishi safety safety recall recall notice notice that that defendants defendants October -5-5- [* 5] 5 of 8 INDEX NO. 61940/2015 FILED: WESTCHESTER COUNTY CLERK 05/26/2017 12:24 PM NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 05/26/2017 received two two years years post-crash post-crash and defendant's defendant's testimony testimony that that he always always had feltthat feltthat had received the vehicle's vehicle's suspension suspension was was not not right, defendant, defendant, himself himself a mechanic, mechanic, had testified testified that that he the previously personally personally had inspected inspected the the vehicle vehicle on a lift, that that he had found found nothing nothing wrong wrong previously with the the vehicle's vehicle's suspension, suspension, and that that he had removed removed and and examined examined the the control control arm with which had been been fine fine except except for for some some light light rust. Defendant Defendant also also had testified testified that, just one just one which two months months prior prior to the the subject subject crash, crash, he had brought brought the the vehicle vehicle to a dealer dealer who who had put or two the vehicle vehicle on a lift and had concluded, concluded, after after inspection, inspection, that that the the vehicle vehicle was was perfect. perfect. the The inescapable inescapable fact fact is that, that, regardless regardless of of defendants defendants having having received received two two years years The later notice notice about about a potential potential safety safety problem problem involving involving the the vehicle, vehicle, that that notice notice merely merely had later advised of of a potential potential problem; problem; defendants defendants fatally fatally have have offered offered no proof, proof, including including any any post.: advised crash inspection inspection evidence evidence or mechanical mechanical expert's expert's affidavit,· affidavit,' supporting supporting the the finding finding that that the the crash vehicle control control arm arm of of defendants'. defendants~ vehicle vehicle in fact fact had failed, failed, thereupon thereupon proximately proximately having having vehicle caused defendant defendant to have have lost lost control control of of the the vehicle. vehicle .. Indeed, Indeed, as above-noted, above-noted, actual actual caused inspection of of the the control control arm just shortly prior prior to the the crash crash had revealed revealed no problem problem with with it." it. inspection just shortly This Court Court necessarily necessarily finds finds that that any any claim claim by defendants defendants that that a mechanical mechanical failure failure had This been responsible responsible for for the the skid andand ensuing ensuing crash crash is impermissible impermissible conjecture. conjecture. been Moreover, the the fact fact remains remains that that defendant defendant had made made the the decision decision to continue continue to drive drive Moreover, the vehicle vehicle notwithstanding notwithstanding his expressed, expressed, albeit albeit mechanically mechanically unfounded, unfounded, concern concern the \ . \. regarding the the vehicle's vehicle's suspension. suspension. regarding Upon these these circum~tances, circum~tances, defendants defendants cannot cannot Upon successfully interdict interdict plaintiff's plaintiff's prima prima facie facie showing showing of of entitlement entitlement to judgment. successfully judgment. With respect respect to what what this this Court Court perceives perceives to be defendants' defendants' additional additional separate separate With i ( defense that, that, at the the time time of of the the -subject subject crash, crash, defendant defendant had been been operating operating his vehicle vehicle in defense safe manner, manner, within within the the posted posted speed speed limits, limits, and that that the the vehicle's vehicle's skid skid from from which which a safe -6-6- [* 6] 6 of 8 -_."--_.- -- --~--_.- ~-~-,,_._--_._-----_ .._...--~~. FILED: WESTCHESTER COUNTY CLERK 05/26/2017 12:24 PM NYSCEF DOC. NO. 40 INDEX NO. 61940/2015 RECEIVED NYSCEF: 05/26/2017 defendant defendant could could not recover recover had been an unavoidable unavoidable emergency emergency not of of his own making, making, and for of fact has for which which defendants defendants thus thus have have no liability, liability, the Court Court finds finds no genuine genuine issue issue offact been raised. what had been defendant's vehicle's speed at raised. While While the parties parties do dispute dispute what been defendant's vehicle's speed time of of the the skid, skid, 11 the Court Court finds nothing in the record record suggesting suggesting that the time finds nothing that the proximate proximate anything other cause cause of of the skid resulting resulting in the crash crash and plaintiff's plaintiff's injuries injuries had been been anything other than than defendant's speed in excess of what what the defendant's operation operation of the the vehicle vehicle at a speed excess of the dark, dark, wet wet and curving curving road conditions See Vehicle Traffic Law§ 1180, subds. subds. (a), (e); Gleich conditions had warranted. warranted. See Vehicle and Traffic Law 91180, Gleich v. Volpe, (1973); Matter Vaeth v. NYS Dept. of Vehicles, 83 AD.3d A.D.3d Volpe, 32 N.Y.2d NY.2d 517 (1973); Matter of Vaeth of Motor Motor Vehicles, st Dept. 1999). 460 264 AD.2d A.D.2d 356, 357-358 357-358 (1 460 (1st Dept. 2011); 2011); Pinkowv. Pinkow v. Herfield, Herfield, 264 (1stDept. 1999). A loss of traction driver to traction on a wet wet and curvy curvy roadway roadway are obvious obvious motoring motoring hazards hazards requiring requiring a driver exercise that it had been raining the time time of the subject exercise caution caution and, given given that raining heavy heavy at the subject crash, crash, the Court self-serving claim Court cannot cannot find that that defendant's defendant's self-serving claim that that he had been been driving driving within within the posted vehicle posted speed speed limit limit at 30 to 35 miles miles per per hour hour demonstrates demonstrates that that he had operated operated the vehicle speed for at a prudent prudent speed for the the "dangerous "dangerous uphill uphill curve" curve" roadway roadway condition. condition. Cf. Rutledge Rutledge v. Petrocelli 2003). Petrocelli Elec. Co .... Inc., 307 A.D.2d AD.2d 871 (1s (1stt Dept. 2003). Defendant submit any any evidence triable issue fact Defendant has failed failed to submit evidence raising raising a genuine genuine triable issue of fact respect thereto, thereto, and thus thus plaintiff's plaintiff's motion motion for liability judgment hereby granted. with respect for liability judgment is hereby granted. See nd Dept. 2007); Johnson supra; Felberbaum A.D.3d 808 (2nd Johnson v. Braun. Braun, supra: Felberbaum v. Weinberger, Weinberger, 40 AD.3d 2007); lThe Court observes observes that. that, although although there there had been been an identified identified third occupant The Court third occupant of defendants' defendants' vehicle vehicle at the the time time of of the the crash, crash, this this person person has not not provided provided testimony, testimony, of affidavit, as to the the prevailing prevailing circumstances circumstances and specifically specifically as to what what had been been nor an affidavit. defendant's speed speed at the the time time that that it had begun begun to skid. Moreover. Moreover, and and although although not defendant's addressed by the the parties, parties, it would would appear appear by defendant's defendant's own own admission admission that that he had addressed downshifted from from fifth fifth gear gear to third third gear gear at the the time time that that his vehicle vehicle had gone gone into into a skid downshifted that he had been been traveling traveling at least least 40miles 40miles per per hour hour, , if not not more. more. that 1 -7-7- [* 7] 7 of 8 FILED: WESTCHESTER COUNTY CLERK 05/26/2017 12:24 PM NYSCEF DOC. NO. 40 INDEX NO. 61940/2015 RECEIVED NYSCEF: 05/26/2017 nd Dept. 2003). Dudley v. Ford Credit Credit Titling TitlingTrust, A.D.2d 905 905 (2nd 2003). Dudley Trust, 307 A.D.2d The parties parties shall shall appear appear in the the Settlement Settlement Conference Conference Part, room room 1600, 1600, at 9: 15 a.m., a.m., The June 20, 20,2017, for the the scheduling scheduling of of trial on damages damages and, if warranted, warranted, on the the issue issue of of 2017, for on June threshold injury. injury. threshold J6 Dated: May, May,~6 Dated: 2017 2017 White Plains, Plains, New New York York White SMITH H. SMITH J.S.C. II .. Chiariello & Chiariello Chiariello Chiariello Attys. For Pitt. Attys. 147 Glen Street Street 14 7 Glen Glen Cove, Cove, New New York York 11542 11542 Glen Associates Roe & Associates Attys. For Deft. Attys. South Broadway, Broadway, Site Site 235 235 303 South Tarrytown, Tarrytown, New New York York 10591 Frances Schiel Schiel Doyle; Doyle; Settlement Settlement Conference Conference Part Part Frances -8-8- [* 8] 8 of 8

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.