Dillon v Denny

[*1] Dillon v Denny 2018 NY Slip Op 28175 Decided on May 15, 2018 Supreme Court, Nassau County Brown, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on May 15, 2018
Supreme Court, Nassau County

Patricia Dillon, Plaintiff(s),

against

Arthur Denny, Defendant(s).



604813/16



Attorneys for Plaintiff

Ryan & Conlon, LLP

2 Wall Street, Ste. 710

New York, NY 10005

212-509-6009

Attorneys for Defendant

Martyn & Martyn, Esqs.

330 Old Country Road, Ste. 211

Mineola, NY 11501

516-739-0000
Jeffrey S. Brown, J.

The following papers were read on this motion: Documents Numbered

Notice of Motion, Affidavits (Affirmations), Exhibits Annexed 26

Answering Affidavit 35

Reply Affidavit 37

Plaintiff moves pursuant to CPLR 3212 for summary judgment on the issue of liability in this personal injury action arising out of a pedestrian motor vehicle accident on October 30, 2014. Issue was joined on or about August 18, 2016.

In support of this motion is the deposition transcript of defendant, a portion of the deposition transcript of plaintiff (specifically, pages 17, 19, 21, and 22), as well as a copy of a police accident report. On this motion, plaintiff contends that the defendant failed to yield the right-of-way to a pedestrian in a crosswalk and failed to see that which he should have seen.

Plaintiff, Patricia Dillon, testified at her deposition that prior to the accident, she observed a red vehicle turn left onto Atlantic Avenue from Stauderman Avenue. At that time, she stepped into the street one or two steps. She saw a white vehicle that had stopped on Stauderman Avenue. She did not know if there was a stop sign at that intersection. The white vehicle eventually struck her. Plaintiff testified that she was almost across the street when the car struck her.

Defendant Arthur Denny testified that he was traveling east on Stauderman and approached Atlantic Avenue. There was one vehicle in front of his vehicle. Atlantic Avenue is a one way road, running from the south to the north. There is a stop sign that controls the traffic on Stauderman. He brought his automobile to a complete stop and looked both ways. He testified that while he was stopped, before making his left turn, he did not observe any pedestrians crossing the intersection from the northeast to the northwest corner. He began to make his left turn after the stop and did not observe the plaintiff until she was standing in front of his car. He was six or seven feet into the turn and stepped on the brake. About one-half second elapsed between when he first saw the plaintiff and when the accident occurred. His car was traveling one mile per hour. He struck the plaintiff causing her to fall down.

In opposition, defendant provides the court with the complete deposition of the plaintiff. Her testimony further revealed the following. She was crossing Atlantic Avenue from the northeast corner to the northwest corner. She waited on the corner for one or two minutes for motor vehicles to pass. She observed a stopped white vehicle to see if it was going to make a left turn onto Atlantic Avenue. She did not make eye contact with the driver of the white vehicle nor did she keep it under constant observation from her first sighting of the vehicle up until the accident.She did not recall whether there was a marked crosswalk. The plaintiff stated that as she made her third, fourth and fifth step, she was looking straight ahead and did not observe the defendant's vehicle. She did not look at the white vehicle again since it was just sitting there. She did not see defendant's vehicle begin to move. The next time she saw the vehicle it was right there, right next to her.

Defendant argues that plaintiff failed to meet her initial burden to establish a prima facie right to summary judgment since she did not demonstrate that she was free from comparative fault. In reply, plaintiff's counsel argues that plaintiff did meet her burden under the most recent case law.

"It is well established that 'the proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact.' (Alvarez v. Prospect Hosp., 68 NY2d 320, 324 [1986]; see also William J. Jenack Estate Appraisers & Auctioneers, Inc. v. Rabizadeh, 22 NY3d 470, 475-476 [2013]; CPLR 3212[b] ). Once [*2]the movant makes the proper showing, 'the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action' (Alvarez, 68 NY2d at 324). The 'facts must be viewed in the light most favorable to the non-moving party' (Vega v. Restani Constr. Corp., 18 NY3d 499, 503 [2012] [internal quotation marks omitted]). However, bald, conclusory assertions or speculation and '[a] shadowy semblance of an issue' are insufficient to defeat summary judgment (S.J. Capelin Assoc. v. Globe Mfg. Corp., 34 NY2d 338, 341 [1974] ), as are merely conclusory claims (Putrino v. Buffalo Athletic Club, 82 NY2d 779, 781 [1993])."

(Stonehill Capital Management, LLC v. Bank of the West, 28 NY3d 439 [2016]; see also Fairlance Financial Corp. v. Longspaugh, 144 AD3d 858 [2d Dept 2016]; Phillip v. D & D Carting Co., Inc., 136 AD3d 18 [2d Dept 2015]).

At the outset, the court notes that Vehicle and Traffic Law § 1146[a] states that "every driver of a vehicle shall exercise due care to avoid colliding with any . . . pedestrian . . ." and § 1151[a] states that "[w]hen traffic-control signals are not in place or not in operation the driver of a vehicle shall yield the right of way, slowing down or stopping if need be to so yield, to a pedestrian crossing the roadway within a crosswalk . . ." Defendant's testimony that he did not observe the plaintiff until a split second before the accident as he proceeded to make a left-hand turn through the intersection establishes his liability as a matter of law. (See Rose v. Paulino, 123 AD3d 899 [2d Dept 2014]).

The Court of Appeals in the case of Thomas v. Ronai, 82 NY2d 736 [1993] determined that the plaintiff, a pedestrian crossing an intersection, failed to satisfy her burden of demonstrating the absence of any material fact where the evidence demonstrated that she did not look to her left or observe the defendant's vehicle while crossing. Nonetheless, in Hines v. New York City Transit Authority, the Appellate Division, Second Department, found no issue of comparative negligence where the plaintiff testified that "she looked both ways before entering the intersection and continued to look for traffic as she crossed street" and only noticed the defendants' vehicle a split second before being struck. In Garcia v. Lenox Hill Florist III, Inc., 120 AD3d 1296 [2d Dept 2014], the Appellate Division, Second Department, found that the plaintiff established entitled to judgment as a matter of law "by presenting proof that the injured plaintiff was walking within an unmarked crosswalk and that he looked for approaching traffic before he began to cross." In the absence of a hard and fast rule, whether or not a pedestrian can be found to be comparatively negligent appears to be controlled by the question of whether the plaintiff "exercised due care in crossing the street" under the prevailing circumstances. (Roberts v. Zirkind, 140 AD3d 940 [2d Dept 2016]).

The impact of questions of comparative negligence on a motion for summary judgment was very recently resolved by the Court of Appeals. In Rodriguez v. City of New York, 2018 WL 1595658 [April 3, 2018], the Court addressed the issue of "[w]hether a plaintiff is entitled to partial summary judgment on the issue of a defendant's liability, when . . . defendant has arguably raised an issue of fact regarding plaintiff's comparative negligence." In finding the plaintiff so entitled, the court cited the straightforward language of CPLR 1411, which provides:

In any action to recover damages for personal injury, injury to property, or wrongful death, the culpable conduct attributable to the claimant or to the decedent, including [*3]contributory negligence or assumption of risk shall not bar recovery, but the amount of damages otherwise recoverable shall be diminished in the proportion which the culpable conduct attributable to the claimant or decedent bears to the culpable conduct which caused damages."

Accordingly, the Court, explained, the system of comparative negligence adopted in this state, "direct[s] courts to consider a plaintiff's comparative fault only when considering the amount of damages a defendant owes to plaintiff." (Rodriguez, 2018 WL 1595658, at *3). Moreover, the Court noted that "comparative negligence is not a defense to the cause of action of negligence, because it is not a defense to any element (duty, breach, causation) of plaintiff's prima facie cause of action for negligence, and as CPLR 1411 plainly states, is not a bar to plaintiff's recovery but rather a diminishment of the amount of damages." (Id. at *5). Thus, "[w]hen a defendant's liability is established as a matter of law before trial, the jury must still determine whether the plaintiff was negligent and whether such negligence was a substantial factor in causing plaintiff's injuries." (Id. at *5-6; see also Edgerton v. City of New York, 2018 WL 1833267 [2d Dept 2018] ["[T]o be entitled to summary judgment on the issue of liability, a plaintiff is no longer required to show freedom from comparative fault in establishing his or her case."]).

On this record, it is not entirely certain that the plaintiff "exercised due care in crossing the street," such that there may be an element of contributory negligence at play. However, as the Court of Appeals has made plain, the issue of contributory negligence will not forestall the plaintiff's entitlement to summary judgment as against the defendant. Accordingly, the plaintiff's motion for summary judgment on the issue of the defendant's negligence is granted and all remaining issues are reserved for trial.

This constitutes the decision and order of this court. All applications not specifically addressed herein are denied.

Dated: May 15 , 2018

Mineola, New York

E N T E R :

_________________________________

HON. JEFFREY S. BROWN

J.S.C.