Walsh (Estate of Stengl) v Safeguard Gas Heat Inc.

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Walsh (Estate of Stengl) v Safeguard Gas Heat Inc. 2018 NY Slip Op 34132(U) October 18, 2018 Supreme Court, Suffolk County Docket Number: Index No. 611448/2017 Judge: John H. Rouse 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: 1] SUFFOLK COUNTY CLERK 10/22/2018 11:19 AM INDEX NO. 611448/2017 NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 10/22/2018 INDEX NO. 611448/2017 SUPREME COURT - STATE OF NEW YORK 1.A.S. PART 12- SUFFOLK COUNTY PRESENT: MOTION DATE: 07/18/2018 ADJ.DATE: 09/12/2018 Mot. Seq. 002~-/VIG e-jiled full participation Hon. John H. Rouse Acting Supreme Court Justice Joan Walsh, Lorelle J Pyan, Richard F Stengl EXECUTORS OF THE ESTATE OF FRANK A STENGL, DECEASED, DECISION & ORDER Plaintiffs -againstSafeguard Gas Heat Inc., Jesse T. Lombardi, John M Graziano, Thomas J Maloney, Defendants TO:. RAPPAPORT, GLASS, LEVINE & ZULLO 1355 MOTOR PARKWAY ISLANDIA, NY 11749 631-293-2300 PICCIANO & SCAHILL, P.C. 1065 STEWART A VENUE, SUITE 210 BETHPAGE, NY 11714 516-294-5200 ROSENBERG & GLUCK LLP 1176 PORTION ROAD HOLTVILLE, NY 11742 631-45 l -7900 Upon the reading and filing of the following papers in this matter: (1) Notice of Motion by Defendant Thomas J. Maloney for an order pursuant to CPLR §3212 granting partial summary judgment to defendant Thomas J. Maloney on his cross-claims against defendants Safeguard Gas Heat Inc., and Jesse T. Lombardi, and dismissing defendants Safeguard's and Lombardi's second (seat belt defense), third (comparative fault of Maloney) and sixth (barred by Worker's Compensation Law) affirmative defenses contained in their Answer pursuant to CPLR §321 l(a) and for such other and further relief as this Court may deem just and proper; (2) all e-filed documents numbered 16-31; it is: Page 1 of 4 1 of 4 [*FILED: 2] SUFFOLK COUNTY CLERK 10/22/2018 11:19 AM NYSCEF DOC. NO. 39 INDEX NO. 611448/2017 RECEIVED NYSCEF: 10/22/2018 nt on ORDERED that the motion (Seq. #002) by Thomas J. Maloney for partial summary judgme T. Jesse and Inc. Heat Gas rd the issue ofliabil ity on his cross claims against Defendants Safegua by Lombardi is granted; and further his motion for summary judgme nt on the cross claims is it and granted; is him against as di Defendants Safeguard Gas Heat Inc., Jesse T. Lombar further nt ORDERED that pursuant to CPLR § 3212(b) all Plaintiffs shall have partial summary judgme ; and against Defendants Safeguard Gas Heat Inc. and Jesse T. Lombardi on the issue of liability have shall , Defendant John M. Graziano, as owner of the vehicle operated by Thomas J. Maloney Inc. and summary judgem ent on the cross claims against him by Defendants Safeguard Gas Heat Jesse T. Lombardi. have ORDERED that Defendant Thomas Maloney is directed to serve upon all other parties who as appeared in this action with a copy of this decision and order with notice of entry as soon page 6 (M) II at Court e Suprem practicable See Protocol for Electronic Filing in Suffolk County for rules on serving notice of entry. https://www.nycourts.gov/courts/lOjd/suffolk/EFiling/ DECISION and This action arises out of a serious collision between a van driven by Jesse T. Lombardi were Nissan Altima driven by Thomas Maloney. Plaintiffs Walsh, Pian and Frank Stengl passengers in the vehicle driven by Maloney. case In this consolidated action (decision and order dated March 23, 2018 consolidating the that with di Lombar T brought by Thomas Maloney against Safeguard Gas, Inc. and Jesse of brought by Plaintiffs: Joan Walsh, Lorelle J Pyan, Richard F. Stengl, Executors of the Estate cross his on nt judgme y Frank A. Stengl, Deceased) Thomas J. Maloney moves for summar sly claims against Defendants Safeguard Gas, Inc. and Jesse T. Lombardi (such claims previou by made claims cross the upon being his claims as Plaintif f in the unconsolidated action) and . these Defendants for contribution based upon the alleged comparative fault of Maloney Thomas J. Maloney's Allegations of Fact the In support of his motion for summary judgme nt Thomas Maloney submits an affidavit with PM, he following allegations. Maloney is 62 years old. On May 28, 2017, at approximately 5:00 by a struck was driving was involved in a motor vehicle accident in which the vehicle that he was The vehicle owned by defendant Safeguard and driven at the time by its employee Lombardi. with Road Service North accident occurred at the intersection of the Long Island Expressway a Commack Road, in Commack, New York. At the time of the accident Malone y was driving nt defenda by struck being to Nissan Altima owned by my neighbor John Graziano. Just prior at Safeguard/Lombardi's vehicle, Maloney had stopped on the North Service Road at the light of the intersection with Comma ck Road. At the point where I stopped my vehicle, the roadway "Left the North Service Road consisted of four lanes. The lane farthest to the left was marked Tum Only" on the pavement. The second-most lane from the left was marked "Left Tum Page 2 of 4 2 of 4 [*FILED: 3] SUFFOLK COUNTY CLERK 10/22/2018 11:19 AM NYSCEF DOC. NO. 39 INDEX NO. 611448/2017 RECEIVED NYSCEF: 10/22/2018 /Straight" on the pavement. The lane to the right of that was marked "Straight" only and the lane farthest to the right was marked "Right Tum Only." When Maloney stopped at the intersection with Commack Road his vehicle was in the second lane from the left, the lane that was marked "Left Tum/Straight." There was one vehicle ahead of Maloney. When the light turned green Mr. Maloney moved his vehicle ahead and began to tum left onto Commack Road. As Mr. Maloney entered the intersection, his vehicle was violently struck in the driver's side door by a white van being operated by defendant Lombardi. The initial impact by Lombardi's van with Mr. Maloney's vehicle was in the intersection itself, and Lombardi's van then pushed Mr. Maloney's vehicle across the intersection and off the roadway. Mr. Maloney alleges he was seriously injured by the collision, suffering a fractured shoulder. The front-seat passenger in Mr. Maloney's vehicle, Frank Stengl, was killed by the force of the impact. In operating his vehicle on May 28, 2017, Mr. Maloney alleges he obeyed all traffic rules and regulations. At all times his vehicle was entirely within its permitted lane of travel. Mr. Maloney alleges he appropriately stopped his vehicle at the traffic light when it was red, and he moved forward appropriately when the light turned green. The lane in which Mr. Maloney's vehicle was traveling just prior to the collision was marked for a left tum or to go straight, and his intention was to make a permitted left tum onto Commack Road South. Based upon the deposition of Defendant JesseT. Lombardi he had exited the Long Island Expressway and was traveling in the far left lane as alleged by the movant. He testified that he was traveling at speed of forty miles per hour and the light was green as he approached the Maloney his vehicle was in a left tum only lane that was to the left (south) of the Maloney vehicle. Lombardi testified that he began to change lanes to move towards the right so that he could get gas at a service station on the far side of the intersection with Commack Road on the north side of the service road. Based upon the deposition of an independent witness, Jaal Thalib, who was in his vehicle the northbound lane of Commack Road sitting at the red traffic light he testified at an examination before trial that he observed the collision as the van struck driven by Jesse T. Lombardi struck the driver's side of the vehicle driven by Thomas Maloney. Plaintiff, upon the facts alleged has made a prima facie case that Defendant Lombardi was the sole proximate cause of this collision: 1 1The movant has submitted a letter dated August 2, 2018 submitted with Findings and Disposition from a Department of Motor Vehicles Hearing dated July 23, 2018. The court has not considered this determination in considering the present motion. See e-filed document 31. Page 3 of 4 3 of 4 [*FILED: 4] SUFFOLK COUNTY CLERK 10/22/2018 11:19 AM NYSCEF DOC. NO. 39 INDEX NO. 611448/2017 RECEIVED NYSCEF: 10/22/2018 __ _,,. diagram, not to scale, from certified police accident report included for roadway markings not for any purpose ofreconstruction or the determination of the point of impact. In opposition Co-Defendant Jesse T. Lombardi has failed to raise a triable issue of fact. The inescapable conclusion is that Lombardi driving a van westbound in the far left lane attempted to move his vehicle to the right to go, as he testified, to a' gas station on the far side of the intersection on the north side of the road and struck the driver side of the vehicle driven by Thomas Maloney that was legally turning left to proceed southbound on Commack Road. Accordingly, Thomas Maloney's motion for partial summary judgmenton the issue ofliablity on his cross claims against Jesse T. Lombardi and Safeguard Gas Heat Inc. is granted and his motion for summary judgment on the cross claims against him by Jesse T. Lombardi and Safeguard Gas Heat Inc. is granted. The Court further determines that Plaintiffs Joan Walsh, Lorelle J Pyan, Richard F Stengl Executors of the Estate of Frank A. Stengl, Deceased, shall also have summary judgment against Defendants Jesse T. Lombardi and Safeguard Gas Heat Inc. on the issue of liability in accordance with CPLR § 3212(b). See Pagan vJordan, 163 A.D.3d 978 LJ:U.f.-b.l.tm.t. 2018). The foregoing shall constitute the decision and order Dated: October 18, 2018 NON-FINAL DISPOSITIO ) Page 4 of 4 4 of 4

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