Gute v Grease Kleeners, Inc
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Gute v Grease Kleeners, Inc 2018 NY Slip Op 30230(U) January 30, 2018 Supreme Court, Suffolk County Docket Number: 15-1666 Judge: Peter H. Mayer 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. [* 1] SHORT FORM ORDER INDEX No. · 15-1666 CAL. No. SUPREME COURT- STATE OF NEW YORK I.A.S. PART17 - SUFFOLKCOUNTY 16-02322MV CQpy PRESENT: Hon. PETER H. MAYER Justice of the Supreme Court MOTION DATE 4-5-17 (004 & 005) MOTION DATE 5-15-17 (006) ADJ. DATE 6-16- 17 Mot. Seq. # 004 - MD Mot. Seq. # 005 - MD Mot. Seq. # 006 - MD ---------------------------------------------------------------X PATRICIA GUTE and RICHARD.GUTE, APPELL & PARRINELLI Attorney for Plaintiffs 3 West 35th Street, 6th Floor New York, New York 10001 Plaintiffs, - against GREASE KLEENERS, INC, ROBERT A, FLYNN and CHRISTOPHER ROMANO, Defendants. DESENA & SWEENEY, LLP Attorney for Defendant Grease Kleeners Inc. 1500 Lakeland Avenue Bohemia, New York 11716 PICCIANO & SCAHILL, P.C. Attorney for Defendant Romano 900 Merchants Concourse, Suite 310 Westbury, New York 11590 -----------------~------------------------------------------~-X Upon the reading and filing of the foUowing papers in this matter: (I) Notices of Motion/Order to Show Cause by the plaintiffs, dated March 7, 2017and the motion by the defendants Greene Kleeners, Inc. and Robert A. Flynn, dated April 25, 2017, and supporting papers (including Memorandum of Law dated___.); (2) Notice of Cross Motion by the , dated, supporting papers; (3) Affirmations in Opposition by the defendants Grease Kleeners, Inc. and Robert A. Flynn, dated April 24, 2017, and by Christopher Romano, dated April 28, 2017 and June 8, 2017, and supporting papers; (4) Reply Affirmations by the plaintiffs, dated April 5, 2017 and May24, 2017, and by defendants Grease Kleeners and Robert A. Flynn, dated May 24, 2017 and June 15, 2017, and supporting papers; (5) Other_ (and after heating eotmseb' oral a:rgmnent3 in support of and opposed to the motion); and now UPON DUE DELIBERATION AND CONSIDERATION BY THE COURT of the foregoing papers, the motion is decided as follows: it is ORDERED that pending motions 004, 005 and 006 are combined herein for disposition; and [* 2] Gutc v Grease Kleencrs Index No. 15-1666 Page 2 ORDERED that the motion by plaintiffs for partial summary judgment in their favor on the issue of liability as against defendant Christopher Romano is denied: and it is ORDERED that the motion by plaintiffs for partial summary judgment in their favor on the issue of liability as against defendants Grease Klceners. Inc. and Robert J\. Flynn is denied: and it is ORDERED that the motion by defendants Grease Kleencrs, Inc. and Robert J\. Flynn for summary judgment dismissing the complaint is denied. Plaintiffs Patricia Gute ("Gute.,) and her husband. derivatively, commenced this action seeking to recover damages for personal injuries she sustained on December 8, 20 14 in a multi-vehicle accident. Gute was traveling north on Patchogue-[ Iolbrook Road and defendant Robert/\.. Flynn ("'Flynn''), operating the vehicle owned by defendant Grease Kleeners, Inc. (hereinafter --defendants" when referred to collectively), was traveling behind her. Defendant Christopher Romano ( .. Romano..) was operating his vehicle southbound on Patchogue-Holbrook Road. In the area where the accident occurred, Patchogue-Holbrook road has two lanes in each direction of travel separated by a median painted on the roadway and a double-yellow line. Issue has been joined, discovery completed and the note of issue filed. The instant motions for summary judgment ensued. Plaintiff<> move for summary judgment on the issue of liability against Romano on the grounds that he violated section 1126 (a) of the Vehicle and Traf!ic Law by crossing over the double-yellow line and into Gute's lane of travel. Plaintiffs move for summary judgment on the issue of liability against defendants on the ground that Flynn rear-ended plaintiffs· vehicle, which creates a prima facie case of negligence. Defondants move for summary judgment dismissing plaintiffs. complaint on the ground that Romano's conduct \Vas the sole proximate cause of this three-vehicle accident. and that the emergency doctrine applies to Flynn's action, thereby relieving them of liability. On the day of the accident, there had been a dusting of snow, but the weather turned warmer and the precipitation changed to rain, then to a light drizzle and mist. which had stopped shortly before the accident occurred at 5:30 p.m. Plaintifl~ Romano and Flynn each left work close to 5:00 p.m~ plaintiff was working in Sayville, Romano at Stony Brook Hospital and Flynn in East Patchogue. Plaintiff testi lied the roads were icy when she left work; Romano and Flynn testified that the roads were not icy. Gute testified that she had been driving for approximately 20 minutes in the left lane of Patchogue-I lolbrook Road on her way to the Long Island Expressway. Shortly before the accident occurred, she looked in her rear-view mirror and saw what she described as a truck-like vehicle, later identified as a full sized van operated by Flynn. which made her uncomfortable because it was driving too close for the road conditions. After stopping for a red light at an intersection, she proceeded forward. eventually accelerating to about 40 miles per hour. Romano's vehicle then crossed over the median and the double-yel low line into her lane of travel. hitting the fro nt left side of her vehicle. As a result of the impact, the back of her vehicle shitted to the left and she immediately felt a second impact. She testified that both impacts were extremely hard and that the first impact happened so fast she did not have time to do anything. Gute described seeing the blur of headlights on Romano's vehicle coming [* 3] Gute v Grease Kleencrs JndexNo.15-1666 Page 3 towards her from the opposite direction and instantaneously the collision occurred, her car spun and then she felt the second impact. The steering wheel airbag deployed and she lost consciousness. which s he did not regain until December 22 at Stony Brook Hospital. Romano admits that he Jost control of his vehicle on icy road conditions but testified he did not realize the roads were icy until it was "loo late. Romano testified that he stopped at a s upennarket on his way home and did not encounter any icy conditions. He testified that the road·way from the supermarket to the Long Island Expressway ('"LIE") overpass on Patchogue-1 Iolbrook Road also not slippery or icy. l lowcver. as he was crossing the UE overpass at the point the roadway curves to the right. his Jeep started to slide on ice. He took his foot off the gas and attempted to stay in the southbound lane away from oncoming traffi c, but was unable to do so. His Jeep continued to slide forward and in an easterly direction, cross the median and double-yellow line into oncoming traflic and hit plaintiffs· vehicle headon. Af1er the impact. Romano's vehicle spun around back to a southerly direction on the median. Plaintiffs' vehicle went from the left-hand northbound lane to facing southbound on the right shoulder of the southbound lane. /\t the time of the accident, Romano was unaware that a third vehicle was involved; he was informed after being transported by ambulance to Stony Brook Tlospital. Although he tcstifi~d he was familiar with and traveled on Patchogue-Holbrook Road regularly. he was not sure if the warning sign on the overpass, "'Bridge May lee Before Roadway:· was posted prior to the subject accident. Flynn testified that he was approximately 40 to 50 feet behind plaintiffs' vehicle when he saw the Jeep coming across the median at an angle from the southbound side towards the northbound side of Patchogue-Holbrook Road. rlynn testified the impact between Romano's and plaintiffs' vehicle happened so quick he did not know what action plaintiff took. According to Flynn. when he saw the Jeep entering the northbound lane. he applied his brakes and steered towards the right but was unable to avoid colliding with plaintiffs' vehicle as the road in that area was icy. The front of his van hit the driver's side fender and door of plaintiffs' vehicle. He testified lhat aHcr the impact his van continued to slide on the ice 60 to 70 feet across the double-yellow line and into the southbound Jane. as did plaintiffs' vehicle. Flynn stated that he was wearing work boots and as he exited his vehicle after the collision, he immediately slipped and noticed that the overpass was covered with a sheet of ice. After his accident. he also noticed other cars skidding. The emergency doctrine provides that ·'when an actor is faced with a sudden and unexpected circumstance which leaves little or no time for thought, deliberat ion, or consideration, or causes the actor to be so reasonably disturbed that the actor must make a speedy decision without weighing alternative courses of conduct, the actor may not be negligent if the actions taken arc reasonable and prudent in the emergency context'' (Ardila v Cox. 88 AD3d 829. 830, 931 NYS2d l 20 [2d Dept 20 I l]: see Wade v K11ight Tra11sp., /11c., 151 AD3d 1107, 58 NYS3d 458 [2d Dept 2017;J; Ho110/d v Karwowski, 124 /\D3d 724, 998 NYS2d 666 [2d Dept 2015]; see Caristo v Sa11zo11e. 96 NY2d 172, 726 NYS2d 324 [200 1J; Vitale v Levi11e. 44 AD3d 935, 936 [20071; Rivera v New York Ci~y Tr. Autlz., 77 NY2d 322, 327. 567 NYS2d 627 1991 ]; Bello v Transit Autlz. of N. Y. City, 12 AD3d 58, 60. 783 l\YS2d 648 [2d Dept 2004] ). "'This is not to say that an emergency automatically absolves one from liability for his or her conduct ... as the standard remains that of a reasonable person under the circumstances'" (Ho11old v r [* 4] Gutc v Grease Kleencrs index No. 15-1666 Page4 Karwowski. supra at 725. quoting Ferrer v Harris. 55 NY2d 285. 293. 449 NYS2d 162 r19821; Lopez v Wook Ko Yo1111g, 96 /\D3d 724, 724-725. 945 NYS2d 728 (2<l Dept 2012]). '"/\)though the existence of an emergency and the reasonableness of the response to it generally present issues of foct, those issues may in appropriate circumstances may be determined as a matter or Jaw'· (Lopez v Wook Ko Yo1111g, supra at 725). It has been held that crossing a double-yellow lane into the opposing lane or traffic, a violation of Vehicle and Tral'fic Law§ 1126 (a), is a classic emergency situation. implicating the emergency and that such conduct constitutes negligence as a matter of law (see Wade v K11iglzt Tra11sp., /11c. , 151 /\D3d 11 07, 58 NYS3d 458 l2d Dept 201 7J; Graci vKillgsley, 146 AD3d 864. 45 NYS3d 187 f2d Dcp 201 7]; Honold v Karwowski, supra; Ardila v Cox, supra). Ilere. based on the evidence submitted. plaintiff has established her prima facic entitlement to judgment on the issue of Romano· s liability by demonstrating that he violated Vehicle and Traflic Law§ 11 26 (a) by crossing over a double yellow line into her lane of travel, thereby causing the head-on collision. In opposition. Romano argues that Gutc has failed to establish she was free from comparative fault, or took any reasonable precautions to avoid the impact. therefore, the motion sho uld be denied. Romano's argument is not persuasive as a driver is not required to ant icipate that a vehicle ·will cross over a double yellow line into o ncoming traffic (see Wade v K11ight Tra11sp., /11c. , supra: Graci v Kingsley, supra; Ardila v Cox, supra; Guevaril v Zaharakis, 303 AD2d 555, 756 NYS2d 465 l2d Dept 2003]; Velez v Diaz, 227 /\D2d 615, 643 NYS2d 614 [2d Dept 1996); Williams v Econ , 221 AD2d 429, 633 NYS2d 392 [2d Dept 1995]: Greifer vSclmeider, 215 AD2d 354, 626 NYS2d 2 18 pd Dcptl995]). /\. cross-over scenario presents an emergency situation and the actions of a driver confronted with such a situation must be judged in that context (see Williams v Eco11, supra; Gre(fer v Sclz11eider, supra). Herc, Gute was presented with an instantaneous cross-over emergency, not of her own mak ing. Based on the deposition testimony, Romano's cross-over into the injured plaintiffs lane of traffic and the impact occurred instantaneously. Under such circumstances, the inj ured plaintiff had no obligation to exercise her best judgment and any error in her judgment is not sufficient to constitute negligence (see, Guevara v Zalwrakis. supra: Velez v Diaz. supra; Williams v Econ. supra). Speculation that Gutc may have failed to take evasive action or in some other way contributed to the collision with Romano's vehicle is insuflieicnt to defeat plaintiff~; prima facic showing (see Wade v K11ight Tra11sp. , Ille. , supra: S11emyr v Morales-Aparicio. 47 AD3d 702, 850 NYS2d 489 [2d Dept 2008]; Gado11 v Oliva, supra; Williams v Econ, supra). Nevertheless, a violation of Vehicle and Traffic Law§ 1126 (a) ' ·may be excused if it is established that the driver exercised reasonable care in an effort to comply with lthe statute]" (C/(lrke v Condon, 52 AD3d 764, 765. 862 NYS2d 65 f2d Dept 2008J); see Espinal v Sureau. 262 /\D2d 523, 524. 691 NYS2d 335 [2d Dept I 9991). I lcre, a triable issue of fact exists for the jury to decide as to whether Romano's conduct was reasonable under the circumstances (see Youssef v Siri11go, 151 AD3d 911 , 57 NYS3d 505 l2d Dept 2017]: Clarke v Co11do11, .rnpra; A rrica/e v Leo, 295 AD2d 920, 744 NYS2d 109 [4th Dept 20021). Therefore, plaintiffs' motion for partial summary judgment in their favor against Romano must be denied. [* 5] Gute v Grease Klecners Index No. 15-1666 Page 5 Plaintiffs· motion for partial summary judgment against defendants and defendants' motion for summary judgment dismissing the complaint must also be denied. Although Flynn testified that he had not experienced or observed any icy or slippery road conditions until the accident, it is for the jury lo determine whether he was fo llowing too closely behind plaintiffs' vehicle considering the weather and road conditions, and whether he had a reasonable opportunity to avoid the collision given the interval of seconds between the cross-over and his impact with plaintiffs' vehicle or was he in fact confronted with an emergency situation not of his own making (see Frutchey v Felicita, 11 NY3d 764, 866 NYS2d 594 l2008J; Youssef v Siri11go, supra: Raposo v Raposo, 250 AD2d 420, 673 NYS2d 92 l l st Dept 1998]). Accordingly, the motions are denied. Dated: January 30, 2018 ~~ YEi.J~ PETER H. MA
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