Martinez v Eloise-Mckoy

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Martinez v Eloise-Mckoy 2017 NY Slip Op 33494(U) June 2, 2017 Supreme Court, Westchester County Docket Number: Index No. 65692/15 Judge: David F. Everett 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 06/06/2017 11:33 AM NYSCEF DOC. NO. 27 INDEX NO. 65692/2015 RECEIVED NYSCEF: 06/06/2017 commence the 30-day 30-day statutory statutory time time period To commence period for appeals appeals as of of right right under under CPLR CPLR 5513 55 I 3 (a), you you are advised advised to serve serve copy of of this order, order, with notice of of entry, a copy with notice entry, upon upon all parties. parties. SUPREME COURT COURT OF THE THE STATE STATE OF NEW SUPREME NEW YORK YORK COUNTY WESTCHESTER COUNTY OF WESTCHESTER -----------------------------------------------------------------J{ -----------------------------------------------------------------X MARTINEZ, ELIGIO MARTINEZ, Plaintiff, Plaintiff, Index Index No. 65692/15 65692/15 .Motion Sequence No. 001 Motion Sequence Decision Decision and and Order Order -against-against- R.E. ELOISE-MCKOY ELOISE-MCKOY Defendant. Defendant. -----------------------------------------------------------------J{ -----------------------------------------------------------------X EVERETT,J. EVERETT,J. following papers were read The following papers were read on the motion: motion: Notice of Motion/Affirmation Supp/Exhibits A-H Notice of Motion/Affirmation in Supp/Exhibits A-H Affirmation in Opp Affirmation Reply Affirmation Reply Affirmation negligence action, action, plaintiff In this this negligence plaintiff Eligio Eligio Martinez Martinez (Martinez) (Martinez) moves moves for an order, order, pursuant to CPLR CPLR 3212, 3212, granting pursuant granting summary summary judgment judgment against against defendant defendant R.E. Eloise-McKoy Eloise-McKoy (Eloise-McKoy) on the issue issue ofliability. of liability. Upon Upon the forgoing forgoing papers, papers, the motion, motion, which which is (Eloise-McKoy) opposed by Eloise-McKoy, Eloise-McKoy ,isis granted. granted. opposed following facts are taken The following taken from the pleadings, pleadings, motion motion papers, papers, affidavits, affidavits, documentary documentary evidence and the record, record, and are undisputed evidence undisputed unless unless otherwise otherwise indicated. indicated. Plaintiff commenced Plaintiff commenced the instant instant action action by filing a summons summons and and complaint complaint in the Office Office of the Westchester County Clerk Clerk on September September 23,2015, of Westchester County 23, 2015, to recover recover damages damages for physical physical injuries he allegedly allegedly sustained sustained on July 12, 12,2015, injuries 2015, when when he was struck struck by Eloise-McKoy's Eloise-McKay's vehicle vehicle while crossing a public street within within the confines while crossing public street confines of of a crosswalk, crosswalk, with with the walk walk signal signal inhis in his of Eloise-McKoy's Eloise-McKay's answer answer with with affirmative affirmative defenses defenses on or favor. Issue was joined joined by service service of , I I I I [* 1] 1 of 4 .1 ~ I FILED: WESTCHESTER COUNTY CLERK 06/06/2017 11:33 AM NYSCEF DOC. NO. 27 INDEX NO. 65692/2015 RECEIVED NYSCEF: 06/06/2017 about November 4, 2015, after which the parties parties conducted conducted discovery discovery pursuant pursuant to the preliminary preliminary about November 4,2015, after which conference follow-up compliance compliance conference conference orders. orders. On December December 12, 2016, Martinez Martinez filed conference and follow-up 12,2016, issue and certificate certificate of readiness, and on or about about February February 16, 201 7, he served served the a note of of issue of readiness, 16,2017, of liability. liability. It is Eloise-McKoy's Eloise-McKay's position position that that instant motion motion for summary judgment on the issue issue of instant summary judgment whether Martinez Martinez contributed contributed to the accident accident by failing failing to there are questions questions of of fact as to whether observe what there to be seen through observe what was there through the proper proper use of of his senses. senses. As the proponent motion for summary summary judgment, judgment, Martinez Martinez must must tender tender evidentiary evidentiary proponent of of the motion proof in admissible admissible form sufficient sufficient to warrant proof warrant the court court to direct direct judgment judgment in his favor favor as a matter matter oflaw of New York, 49 NY2d NY2d 557,562 557,562 [1980]; (1980]; CPLR CPLR 3212 3212 [b]). Should oflaw (Zuckerman (Zuckerman v City City a/New Should he make requisite showing, showing, the burden burden would make the requisite would shift to Eloise-McKoy Eloise-McKoy to produce produce evidentiary evidentiary proof in admissible admissible form sufficient to require fon11 sufficient require a trial on one or more more issues issues of of fact (id.). proof To make make his showing, showing, Martinez Martinez supports supports his motion motion with, with, among among other other things, things, copies copies of: a the pleadings; party deposition deposition transcripts; pleadings; party transcripts; and a certified certified copy copy of of the police police report report relative relative to the accident. accident. At his deposition, deposition, Martinez 12,2015, Martinez testified testified that, on the morning morning of of July July 12, 2015, he was walking along along Main Street in New 11 :00 a.m, he walking Main Street New Rochelle, Rochelle, New New York. When, When, at approximately approximately 11 reached the intersection intersection of of Main Street and Division Street, where Main Street Division Street, where there there was was a designated designated , reached crosswalk, crosswalk, he waited waited for the pedestrian pedestrian control control signal's signal's walking walking figure figure to light light up, signaling signaling that that cross (Martinez (Martinez tr at 19, 20). Martinez it was safe for him to cross Martinez testified testified that, that, when when he saw saw the pedestrian control control signal signal turn tum white, white, he started started to walk walk within within the the confines confines of of the crosswalk crosswalk (id.). pedestrian explained that, that, he had had just taken several several steps steps into the crosswalk crosswalk when when the the defendant's defendant's He explained just taken [* 2] 2 of 4 2 FILED: WESTCHESTER COUNTY CLERK 06/06/2017 11:33 AM NYSCEF DOC. NO. 27 INDEX NO. 65692/2015 RECEIVED NYSCEF: 06/06/2017 vehicle struck struck him him on his right right side. When vehicle When asked, asked, Martinez Martinez denied denied hearing hearing either either vehicle vehicle or the sound of of a horn hom before before being being struck sound struck (id. at 21, 22). defense deposition, deposition, Eloise-McKoy At the defense Eloise-McKoy explained explained that that she had had been been traveling traveling on Main Main Street at approximately approximately 30 miles Street miles per per hour, hour, and that, when when she saw saw a green green light light at the subject subject intersection, she slowed slowed her her car down, down, but Street tum onto onto Division Division Street intersection, but did not stop before before making making a tum (Eloise-McKoy tr at 15, 16). When (Eloise-McKay When asked, asked, Eloise-McKoy Eloise-McKoy denied denied seeing seeing any pedestrians pedestrians on any of the comers comers as she approached approached the intersection of intersection (id. at 16), and that that the first first time time she saw Martinez was when was on the ground. Martinez when he was ground. Eloise-McKoy Eloise-McKoy also acknowledged acknowledged that, that, although although nothing obstructing obstructing her view there was nothing view of of the intersection, intersection, she did not see Martinez Martinez at at any point point prior prior to impact impact (id. at 18, 19). narratives contained contained in the certified The narratives certified police police report report are consistent consistent with with Martinez's Martinez's and Eloise-McKoy's respective how the accident ofhow accident occurred. occurred. Eloise-McKay's respective accounts accounts of Martinez has satisfied satisfied his prima Here, Martinez prima facie burden burden of of establishing establishing negligence negligence on the part part of law on the issue issue ofliability of liability (Zuckerman ofNew New York, 49 ofEloise-McKoy matter oflaw of Eloise-McKoy as a matter (Zuckerman v City City of NY2d at 562). Pursuant Pursuant to Vehicle Vehicle and Traffic Traffic Law Law§§ and 1112 (a), Eloise-McKoy Eloise-McKoy NY2d SS 1111 (a) and required to yield yield to Martinez, Martinez, because was required because as a pedestrian pedestrian walking walking within within a designated designated crosswalk crosswalk direction indicated indicated by the pedestrian in the direction pedestrian control control signal, signal, he had the right right of of way. Given Given that that Eloise-McKoy's own testimony Eloise-McKay's own testimony confirms confirms that that nothing nothing prevented prevented her from seeing seeing Martinez Martinez before before struck him with with her vehicle, of fact with with respect respect to her she struck vehicle, she fails to raise a question question of negligence. Moreover, negligence. Moreover, Eloise-McKoy's Eloise-McKoy's unsupported unsupported speculation speculation that that Martinez Martinez contributed contributed to his accident by failing failing to observe observe her vehicle, accident vehicle, is insufficient insufficient to rebut rebut plaintiffs plaintiffs prima prima facie showing showing 3 • [* 3] 3 of 4 FILED: WESTCHESTER COUNTY CLERK 06/06/2017 11:33 AM NYSCEF DOC. NO. 27 INDEX NO. 65692/2015 RECEIVED NYSCEF: 06/06/2017 of judgment (see Alvarez Alvarez v Prospect Prospect Hasp., Hosp., 69 NY2d NY2d 320, of liability liability and forestall forestall summary summary judgment 320, 324 Zuckerman v City City of a/New New York, 49 NY2d NY2d at 563). [1986]; Zuckerman Accordingly, as the the evidence evidence in the record record demonstrates demonstrates that that there there are no triable triable issues issues of of Accordingly, defendant's fault fault in causing causing the accident, accident, and that that the triable triable issues issues of of fact relate relate to the fact as to defendant's amount of of damages damages to which which plaintiff plaintiff may be entitled, entitled, it is amount ORDERED that that the the motion motion for summary summary judgment granted with with regard regard to liability; liability; and and ORDERED judgment is granted further it is further ORDERED ORDERED that that counsel counsel are directed directed to appear appear for in the the Settlement Settlement Conference Conference Part, Part, in courtroom courtroom 1600, Westchester Westchester County County Courthouse, Courthouse, 111 Dr. Martin Martin Luther Luther King, King, Jr. Blvd., Blvd., White White Plains, New York, on Tuesday, Tuesday, July July 11, 2017 2017 at 9:15 9: 15 a.m., a.m., to schedule schedule a date date for a trial trial on Plains, New York, damages. damages. This constitutes constitutes the the decision decision and order order of of the Court. Court. This White Plains, Plains, New York Dated: White New York June 2, 2017 2017 June ENTER: ENTER: ])~ytt= HON. DAVID DAVID F. EVERETT, EVERETT, A.J.S.C. A.J.S.C. HON. Proner & Promer Promer Proner Street 60 E.42 Street New York 10165 New York, New New York Richard T. Lau and Associates Associates Richard Jericho Quadrangle Quadrangle 300 Jericho Jericho; New New York York 11753 Jericho; 4 [* 4] 4 of 4

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