Kinnally v Perlman

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Kinnally v Perlman 2018 NY Slip Op 34148(U) December 3, 2018 Supreme Court, Westchester County Docket Number: Index No. 58591/2016 Judge: Charles D. Wood 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] WESTCHESTER COUNTY CLERK 12/03/2018 02:22 PM NYSCEF DOC. NO. 179 INDEX NO. 58591/2016 RECEIVED NYSCEF: 12/03/2018 commence the statutory time time period appeals To commence the statutory period for appeals of right right (CPLR (CPLR 5513[a]), 55 13(a]), you advised to serve serve a copy copy you are are advised as of of entry, upon of this order, order, with with notice notice of of entry, upon all parties. parties. SUPREME NEW YORK SUPREME COURT COURT OF THE THE STATE STATE OF NEW YORK COUNTY OF WESTCHESTER WESTCHESTER COUNTY --------------------------------------------------------------------)( --------------------------------------------------------------------X MARK ALLY, by the co-guardians co-guardians of MARK RAYMOND RAYMOND KINN KINNALLY, of Person and Property, Property, MARK MARK KINNALL KINNALLYY and LISA his Person KINNALL Y and MARK MARK KINN KINNALL Y and LISA KINNALL ALLY KINNALL Y, Individually, Individually, KINNALLY, Plaintiffs, Plaintiffs, Index No. 58591/2016 Index No. 58591/2016 Seqs Nos Seqs Nos 4 & 5 against- - against ALE)(ANDER H. PERLMAN, PERLMAN, RICHARD RICHARD I. PERLMAN, PERLMAN, ALEXANDER SUSAN L. LAMOREAUX, LAMOREAU)(, IRON IRON MOUNTAIN MOUNTAIN SUSAN INFORMATION MANAGEMENT MANAGEMENT SERVICES, SERVICES, INC., INFORMATION MOUNTAIN INFORMATION INFORMATION MANAGEMENT, MANAGEMENT, LLC, IRON MOUNTAIN MOUNTAIN INFORMATION INFORMATION SERVICES, SERVICES, INC., INC., IRON MOUNTAIN IRON MOUNTAIN, MOUNTAIN, INC. and ARI ARI FLEET, FLEET, L.T., IRON Action NO.1 Action No. 1 Defendants. Defendants. --------------------------------------------------------------------X --------------------------------------------------------------------)( SUSAN LAMOREAUX, LAMOREAU)(, SUSAN Plaintiff, Plaintiff, Index No. Index Action No. NO.2.2. Action -against-againstALE)(ANDER H. PERLMAN PERLMAN and RICHARD RICHARD I. ALEXANDER PERLMAN, PERLMAN, Defendants. Defendants. --------------------------------------------------------------------X --------------------------------------------------------------------)( WOOD,J. WOOD,J. The following following papers papers were were read and considered considered in connection connection with Iron Mountain with Iron Mountain Information Management, Management, LLC, Iron Management Management Information Information Services, Services, Inc., Iron Iron Mountain, Information Mountain, ("collectively "Iron "Iron Mountain") Mountain") and Ari Fleet, Fleet, LT., motion motion for summary Inc ("collectively summary judgment judgment (Seq (Seq 4); defendant Susan Susan L Lamoreaux's Lamoreaux's ("defendant") ("defendant") cross cross motion motion for summary and defendant summary judgment judgment on 1 1 of 10 [*FILED: 2] WESTCHESTER COUNTY CLERK 12/03/2018 02:22 PM NYSCEF DOC. NO. 179 INDEX NO. 58591/2016 RECEIVED NYSCEF: 12/03/2018 liability, and opposition opposition of of defendants defendants Alexander Alexander H. Perlman Perlman and Dianne Dianne Perlman, Perlman, as the liability, Adminstratrix of of the Estate Estate of of Richard Richard I. Perlman Perlman ("the ("the Perlmans"), Perlmans"), and and opposition opposition of of Adminstratrix plaintiffs: plaintiffs: Mountain's Notice of Motion, Motion, Counsel's Counsel's Affirmation, Affirmation, Exhibits, Exhibits, Memorandum Memorandum of of Iron Mountain's Notice of Law. Defendant's Notice of Cross-Motion, Cross-Motion, Counsel Counsel's' s Affirmation. Affirmation. Defendant's Notice of Plaintiffs/Respondents Counsel's Counsel's Affirmation Affirmation in Opposition, Opposition, Exhibits. Exhibits. Plaintiff's/Respondents Perlmans' Counsel' Counsel's s Affirmation Affirmation in Opposition Opposition Perlmans' Mountain's s Counsel Counsel's' s Reply Reply Affirmation. Affirmation. Iron Mountain' Defendants' Counsel's Counsel's Reply Reply Affirmation. Affirmation. Defendants' Plaintiff, Mark Mark Kinally Kinally was a belted, belted, front seat passenger passenger in a vehicle vehicle driven driven by Plaintiff, defendant Alexander Alexander Perlman Perlman ("the ("the driver") driver") owned owned by the late Richard Richard Perlman Perlman ("the ("the Perlman Perlman defendant vehicle") that that crossed crossed over over a broken broken yellow yellow centerline centerline into opposing opposing lane of of traffic, traffic, resulting resulting in vehicle") collision with with a truck truck operated operated by defendant, defendant, and owned owned by Iron Iron Mountain. Mountain. Both Both Iron a collision Mountain and Ari Fleet, Fleet, and defendant defendant bring motion for summary summary judgment issue of of judgment on the issue Mountain bring a motion liability, dismissing dismissing plaintiff's plaintiffs complaint, complaint, claiming claiming that that there there is no triable triable issue issue of of fact, fact, inter liability, motor vehicle vehicle accident accident was caused caused solely solely by the negligence negligence of of the driver. driver. alia, the motor Upon the foregoing foregoing papers, papers, the motion motion is decided decided as follows: follows: Upon settled that that "a "a proponent proponent of of a summary motion must must make make a prima prima It is well settled summary judgment judgment motion showing of of entitlement entitlement to judgment matter of of law, law, tendering tendering sufficient sufficient evidence evidence to facie showing judgment as a matter demonstrate the absence absence of of any material material issues issues of of fact" (Alvarez (Alvarez v Prospect Prospect Hosp. Hosp.,, 68 NY2d demonstrate NY2d 320,324 [1986]; see Orange Orange County-Poughkeepsie County-Poughkeepsie Ltd. Partnership Partnership v Bonte, Bonte, 37 AD3d AD3d 684, 684, 320, 324 [1986]; 686-687 [2d Dept Dept 2007]; 2007]; see also Rea Rea v Gallagher, Gallagher, 31 AD3d AD3d 731 [2d Dept Dept 2007]). 2007]). Once Once the 686-687 movant has met met this threshold threshold burden, burden, the opposing opposing party party must must present present the existence existence of of triable triable movant of fact (see Zuckerman Zuckerman v New New York, York, 49 NY2d [1980]; see also also Khan Khan v Nelson, Nelson, issues of NY2d 557, 557, 562 [1980]; AD3d 1062 [2d Dept Dept 2009]). 2009]). Conclusory, Conclusory, unsubstantiated unsubstantiated assertions assertions will will not suffice suffice to 68 AD3d defeat a motion motion for summary summary judgment (Barclays Bank Bank of of New York, N.A. N.A. v Sokol, Sokol, 128 AD2d AD2d defeat judgment (Barclays New York, 2 2 of 10 [*FILED: 3] WESTCHESTER COUNTY CLERK 12/03/2018 02:22 PM NYSCEF DOC. NO. 179 INDEX NO. 58591/2016 RECEIVED NYSCEF: 12/03/2018 492 [2d Dept summary judgment judgment may Dept 1987]). 1987]). A party party opposing opposing a motion motion for summary may do so on the basis basis of of deposition deposition testimony testimony as well well as other other admissible admissible forms of of evidence, evidence, including including an expert's expert's affidavit, affidavit, and eyewitness eyewitness testimony testimony (Marconi (Marconi v Reilly. 254 AD2d AD2d 463 [2d Dept Dept 1998]). 1998]). In deciding a motion motion for summary summary judgment, court is required required to view view the evidence evidence presented presented deciding judgment, the court ""in in the light most most favorable favorable to the party party opposing opposing the motion motion and to draw draw every every reasonable reasonable submitted by the parties inference inference from the pleadings pleadings and the proof proof submitted parties in favor favor of of the opponent opponent to the motion" Tedlen Realty motion" (Yelder (Yelder v Walters, Walters, 64 AD3d AD3d 762, 767 [2d Dept Dept 2009] 2009];; see Nicklas Nicklas v Tedlen Realty Corp., accept as true Corp., 305 AD2d AD2d 385, 385, 386 [2d Dept Dept 2003]). 2003]). The The court court must must accept true the evidence evidence presented presented by the nonmoving nonmoving party party and must must deny the motion motion if if there there is "even "even arguably arguably any doubt doubt as to the existence existence of of a triable triable issue" issue" (Kolivas (Kolivas v Kirchoff, Kirchoff, 14 AD3d AD3d 493 [2d Dept Dept 2005]); 652,661-662 [2d Dept 2005]); Baker Baker v Briarcliff Briarcliff School School Dist., Dist., 205 AD2d AD2d 652,661-662 Dept 1994]). 1994]). Summary Summary judgment drastic remedy remedy and should should not be granted granted where where there there is any doubt doubt as to existence judgment is a drastic existence of a triable triable issue (Alvarez (Alvarez v Prospect Prospect Hospital, Hospital, 68 NY2d 320,324 [1986]). [1986]). of NY2d 320,324 Generally, duty on all drivers Generally, Vehicle Vehicle and Traffic Traffic Law §1129(a) S 1129(a) imposes imposes a duty drivers to drive drive at a safe speed compensating for any known speed and maintain maintain a safe safe distance distance between between vehicles, vehicles, always always compensating known adverse adverse road conditions conditions (Ortega (Ortega v City of of New York, 721 NYS2d NYS2d 790 790 [2d Dept Dept 2000]). 2000]). A New York, driver'isis negligent negligent when when an accident accident occurs occurs because because "he "he or she has failed failed to see that that which, which, driver· senses he or she should Castro, 283 AD2d through through the proper proper use of of her senses should have have seen" seen" Ferrara Ferrara v Castro, AD2d 392,393 Dept 2001]). 2001]). A driver driver is entitled entitled to anticipate anticipate that that another another motorist motorist would would obey 392, 393 [2d Dept traffic laws that that required required him him to yield (Lallemand (Lallemand v Cook, Cook, 23 AD3d AD3d 533 ([2d ([2d Dept Dept 2005]). 2005]). the traffic As is the case here, anticipate that here, a driver driver is not required required to anticipate that a vehicle vehicle traveling traveling in the opposite direction direction will cross cross over over into oncoming oncoming traffic traffic (Eichenwald (Eichenwald v Chaudhry, Chaudhry, 17 AD3d AD3d opposite Dept 2005]). 2005]). "Crossing "Crossing a double double yellow yellow line into the opposing opposing lane lane of of traffic, traffic, in 403, 404 [2d Dept 3 3 of 10 [*FILED: 4] WESTCHESTER COUNTY CLERK 12/03/2018 02:22 PM NYSCEF DOC. NO. 179 INDEX NO. 58591/2016 RECEIVED NYSCEF: 12/03/2018 violation of of Vehicle Traffic Law§ Law ~ 1126(a), 1126(a), constitutes constitutes negligence negligence as a matter matter ofhiw, violation Vehicle and Traffic oflaw, unless justified situation not of of the driver's driver's making" making" (Gadon (Gadon v Oliva, Oliva, 294 294 unless justified by an emergency emergency situation AD2d 397 [2d Dept Dept 2002]). 2002]). Courts Courts have have held that that generally generally whether whether an emergency exists and AD2d emergency exists and response does does raise issues of fact, appropriate the reasonableness reasonableness of of the response issues of fact, those those issues issues may may in appropriate circumstances be determined determined as a matter matter of (Koenig v Lee, 53 AD3d AD3d 567 [2d Dept Dept 2008]). circumstances of law (Koenig 2008]). undispute~ that that the driver driver crossed crossed the yellow yellow line into into oncoming traffic. Plaintiff Plaintiff It is undisputed oncoming traffic. were members members of of the SUNY SUNY New Paltz collegiate collegiate basketball team. The driver and the driver driver were New Paltz basketball team. The driver off-campus house New Paltz Paltz intending intending to drive fellow team team member, member, plaintiff plaintiff and left his off-campus house in New drive his fellow another person person to the scheduled practice. While While the driver.was driver.was driving driving on route route 32N, 32N, his another scheduled practice. vehicle lost control control on ice and skidded skidded across roadway. Plaintiff Plaintiff claims that defendant vehicle across the roadway. claims that defendant was driving the truck truck at an excessive, excessive, dangerous dangerous and unsafe unsafe rate of dangerous and driving of speed speed for the dangerous hazardous road conditions, conditions, consisting consisting of of ice and snow snow on the roadway, weather conditions roadway, and and weather conditions hazardous consisting of of snow, snow, sleet sleet and rain, rain, which which contributed contributed to an emergency emergency of of defendant's defendant's own own consisting creation. creation. To support support their their motions, motions, movants movants argue argue that that defendant was not not traveling traveling at a negligent negligent defendant was of speed; attempted to take all reasonable reasonable evasive evasive measures; measures; and not a contributing speed; attempted and was was not contributing rate of accident. Thus, Thus, movants movants claim claim they are entitled entitled to summary factor to this accident. summary judgment judgment dismissing dismissing plaintiffs complaint complaint against against them them because because defendant defendant was not negligent negligent in the plaintiffs the operation operation of of the subject truck truck during during an emergency emergency situation which a vehicle vehicle slid into her lane of travel and subject situation in which slid into her lane of travel caused accident, and her her actions actions were were reasonable reasonable and prudent. prudent. caused an accident, driver testified testified that that on the day of of the accident, accident, as he was traveling Route 32, traveling on Route 32, he The driver remember if ifthere precipitation coming down, but but there was partial partial snow there was any precipitation coming down, there was snow on does not remember roadway on Route Route 32, although although it had been been plowed, plowed, he called the roadway roadway wet wet and slushy, the roadway called the and slushy, maneuvering the Perlman Perlman vehicle vehicle before before but did not see any ice. He did not have any difficulty difficulty maneuvering explains that that Route Route 32 is one lane in each direction separated Main Street. He explains each direction separated by a double double 4 4 of 10 [*FILED: 5] WESTCHESTER COUNTY CLERK 12/03/2018 02:22 PM NYSCEF DOC. NO. 179 INDEX NO. 58591/2016 RECEIVED NYSCEF: 12/03/2018 yellow line with with small small shoulder shoulder not enough enough to fit a whole whole car. The The car in front front of of him him had had yellow passed the same same location location the driver driver had, had, but the driver driver lost control control of of the Perlman Perlman Vehicle, Vehicle, and passed driver testified testified that that he assumes assumes that that his car hit ice iCe because because it felt that that the car car skid. The the driver Perlman Vehicle Vehicle started started moving moving toward toward the left towards towards the center center divider divider of ofthe roadway, and the roadway, Perlman truck. The The driver driver testified testified that that he was unable unable to stop stop the collision collision with with the truck. truck. he saw the truck. Movants argue argue that that plaintiff plaintiff cannot cannot assert assert a viable viable causes causes of of action action against against movants, movants, as Movants defendant as the operator operator of of the subject subject Iron Mountain Mountain truck, truck, acted acted reasonably reasonably in light light of of the defendant emergency situation situation and was not required required to anticipate anticipate the Perlman Perlman vehicle vehicle sliding sliding across across the emergency yellow line into oncoming oncoming traffic traffic and collide collide with with the Iron Iron Mountain Mountain truck. truck. Movants Movants also point point yellow that plaintiff does not dispute dispute that the Perlman Perlman vehicle vehicle entered entered defendant' defendant's s lane mere out that plaintiff does seconds collision. Within Within these these seconds, seconds, defendant defendant testified testified that that she braked seconds prior prior to the collision. braked and attempted to move move her vehicle shoulder on the right right side side of of the road, road, while while continuing continuing to attempted vehicle to the shoulder maintain control control of of the subject subject truck truck through through the emergency emergency situation. situation. maintain Dr. John John Zolock, Zolock, PhD., PhD., PE,a PE,a licensed licensed professional professional engineer, engineer, upon upon an analysis analysis of of Dr. photographs, various various documents, documents, and a re-creation re-creation of of the accident, accident, estimated estimated that that defendant defendant photographs, traveling at a maximum maximum speed of forty four miles miles per hour hour when when she first observed observed the was traveling speed of Perlman vehicle vehicle sliding towards her, her, well below Route 32's 32' s speed speed limit limit of of fifty five miles miles per Perlman sliding towards below Route per hour and that due to her braking, traveling 25 miles miles per hour at point point of of Impact Impact hour braking, was like traveling per hour (Brevans Aff Aff in Suport Suport Ex Q). The The expert's expert's opinion opinion was that that prior prior to impact, impact, the driver driver was (Brevans driving approximately approximately 48 mph, mph, and the truck truck between between 41 and 44 mph. mph. At 3 to 4 seconds seconds before before driving impact, defendant was likely likely able to perceive perceive the Perlman Perlman vehicle vehicle losing losing control control and yawing yawing in impact, defendant was opposite lane before before it presented presented a hazard hazard to defendant's defendant's lane of of travel, travel, the road was was wet, wet, the opposite snowy and slushy. slushy. After After braking impact, defendant defendant steered steered the truck truck to the snowy braking and just just before before impact, 5 5 of 10 [*FILED: 6] WESTCHESTER COUNTY CLERK 12/03/2018 02:22 PM NYSCEF DOC. NO. 179 INDEX NO. 58591/2016 RECEIVED NYSCEF: 12/03/2018 right to avoid avoid the collision collision and the truck truck right right side tires traveled traveled onto onto the right right shoulder shoulder of of the seconds from a speed trucks trucks lane of of travel; travel; the truck truck traveled traveled 162 feet post post impact impact over over 18 seconds speed of of 18 mph to rest, rest, with with defendant defendant maintaining maintaining control control over over the truck. truck. Joseph Joseph Sala, an Exponent Exponent Engineering Engineering & Scientific Scientific Consulting, Consulting, opined opined that that the accident accident avoidable by defendant, defendant, and one could could not expect expect a reasonably reasonably alert alert and and attentive attentive was not avoidable driver driver to have responded responded in a fashion fashion that would would prevent prevent the Perlman Perlman vehicle vehicle from striking striking her actions on the part part of of defendant defendant contributed contributed to this this accident. accident. truck; and no actions Bruce E. Ketcham, Ketcham, Electrical Electrical engineer, engineer, opined opined that under under New York law, drivers drivers are New York Bruce required to drive drive at reasonably reasonably prudent prudent and safe speeds speeds when when encountering encountering hazardous hazardous road only required conditions. Neither Neither New York law nor federal federal regulations regulations require require a specific specific reduction reduction in New York conditions. vehicle vehicle speed. In light of movants' submissions, ofmovants' submissions, the subject subject accident accident constitutes constitutes a classic classic emergency emergency situation, implicating implicating the "emergency "emergency doctrine" doctrine" (Graci (Graci v Kingsley, Kingsley, 146 AD3d AD3d 864, 864, 865 [2d situation, Dept 2017]). 2017]). The emergency emergency doctrine doctrine provides provides that that "when "when an actor actor is faced faced with with a sudden Dept sudden and unexpected circumstance which which leaves leaves little little or no time time for thought, thought, deliberation deliberation or unexpected circumstance consideration, or causes causes the actor actor to be reasonably reasonably so disturbed disturbed that that the actor actor must must make make a consideration, speedy decision without weighing weighing alternative alternative courses courses of of conduct, conduct, the actor actor may may not be speedy decision without negligent if the actions actions taken taken are reasonable reasonable and prudent emergency context" context" (Ardila (Ardila v prudent in the emergency negligent AD3d 829, 830 [2d Dept Dept 2011]). 2011]). A driver driver is not obligated obligated to anticipate anticipate that that a vehicle vehicle Cox, 88 AD3d traveling in the opposite opposite direction direction will cross cross over over into oncoming oncoming traffic traffic (Ardila (Ardila v Cox, Cox, 88 traveling AD3d at 830). -Movants submitted sufficient sufficient evidence evidence to establish, establish, prima prima facie, that that defendant defendant AD3d Movants submitted presented with emergency situation situation not of of her own own making making when when the Perlman Perlman vehicle vehicle was presented with an emergency crossed over over the yellow yellow line, line, and that that she acted acted reasonably reasonably in response response to that that emergency emergency by crossed applying the brakes and swerving swerving to the right. applying brakes and 6 6 of 10 [*FILED: 7] WESTCHESTER COUNTY CLERK 12/03/2018 02:22 PM NYSCEF DOC. NO. 179 INDEX NO. 58591/2016 RECEIVED NYSCEF: 12/03/2018 In opposition, of fact. Even opposition, plaintiff, plaintiff, and the Perlmans Perlmans failed failed to raise raise a triable triable issue issue of Even if defendant could could conceivably conceivably have have swerved swerved her truck truck to avoid collision, as some of the defendant avoid the collision, some of experts 378, [2d experts suggest, suggest, such such vehicular vehicular agility agility was not required. required. (Gajjar (Gajjar v Shah, Shah, 31 AD3d AD3d 377, 377, 378, Dept that defendant's Dept 2006]). 2006]). Plaintiffs Plaintiffs speculation speculation that defendant's speed speed contributed contributed to the cause cause of of the collision, prevented her vehicle collision, or that that defendant defendant could could have have prevented vehicle from colliding colliding with with the Perlman Perlman vehicle was insufficient insufficient to defeat defeat movants' movants' respective respective motions motions for summary summary judgment. vehicle judgment. Plaintiff and Perlman Perlman Defendants Defendants failed to satisfy satisfy this burden Plaintiff burden because because under under any reasonable view view of of the evidence, evidence, defendant' defendant's s conduct conduct was not negligent. negligent. She was faced with with She was reasonable emergency situation situation not of of her own own making, making, and she acted acted reasonably reasonably in response response to that that an emergency emergency (Alvarado (Alvarado v New New York York City Transit Auth., 106 AD3d AD3d 845, 845, 846 [2d Dept Dept 2013]). 2013]). Transit Auth., emergency undisputed that that the posted posted vehicle vehicle speed speed limit limit on Route Route 32 South South near near Cameo Cameo Lake It is undisputed Road, by the accident accident scene scene was 55 miles miles per hour. According According to plaintiff, Road, plaintiff, and joined joined by the Perlman defendants, defendants, this this was was not an unavoidable unavoidable collision, collision, in that that defendant's alleged Perlman defendant' s alleged excessive rate of speed prevented prevented her from stopping stopping and avoiding avoiding contact contact with with the Perlman Perlman excessive of speed vehicle. Defendant's Defendant's truck truck that that she was driving driving was equipped with a tracking tracking system system vehicle. equipped with "Omnitracs Critical Critical Events Events Recorder" Recorder" which which recorded recorded her speed. was traveling traveling at speeds speeds "Omnitracs speed. She was between 41 and 44 miles miles per per hour hour in the 30 seconds seconds before before the Perlman Perlman Vehicle Vehicle began began to cross cross between of travel. travel. Her Her speed speed recorder recorder documented documented her speed mile per per hour hour moments moments into her lane of speed as 43 mile before she began began braking braking to avoid avoid a collision collision with the Perlman Perlman vehicle. vehicle. before Plaintiff offers offers the affidavit affidavit of of Lewis Lewis Grill, Grill, trucking trucking practices, practices, truck truck operation, operation, safety safety Plaintiff reconstruction expert expert attesting attesting to the negligence negligence of of both both defendant and Iron Iron Mountain. Mountain. He and reconstruction defendant and been working working in the trucking trucking industry industry since since 1968, 1968, as a truck truck driver driver training training attests that he has been instructor and other other tasks. tasks. He opines opines that that it is good and accepted accepted safety safety practices practices for drivers drivers of of instructor 7 7 of 10 [*FILED: 8] WESTCHESTER COUNTY CLERK 12/03/2018 02:22 PM NYSCEF DOC. NO. 179 INDEX NO. 58591/2016 RECEIVED NYSCEF: 12/03/2018 trucks of of the weight, weight, size dimension dimension and kind of of the vehicle vehicle operated operated by defendant defendant must must reduce reduce trucks their speed speed to maintain maintain safe stopping stopping distance, distance, and in this no more more than than 27.5 27.5 miles miles per per hour hour in their posted speed speed limits limits of of 55 miles miles per hour in order order to maintain maintain safe safe stopping distances per hour stopping distances roads with posted wet slippery slippery roads roads covered covered with with ice and or snow. on wet offered was plaintiffs vehicle safety safety and accident accident reconstruction reconstruction expert, expert, Robert Robert D. Also offered plaintiffs vehicle Klingen, Klingen, who concludes concludes that that had defendant defendant been been operating operating her truck truck at a safe safe rate of of speed, speed, she would have had sufficient sufficient time time and distance distance to avoid avoid the collision collision with with the Perlman Perlman vehicle. vehicle. would expert opines opines that defendant defendant violated violated NYS Vehicle and Traffic Traffic Law Law 1180(a), 1180(a), and other other This expert NYS Vehicle Federal Motor Motor Carrier Carrier Safety Safety Regulations Regulations mirrored mirrored by the New York State State Commercial Commercial Federal New York Driver'ss Manual, Manual, New York State State laws and manuals, manuals, and federal federal regulations regulations as well, well, by her Driver' New York unsafe driving, driving, the dangerous dangerous speed speed and poor poor driving driving choices choices she made made while while operating operating her unsafe vehicle on slippery, slippery, ice and a snowy snowy roadway, roadway, predictably predictably prevented prevented her from decelerating decelerating vehicle and/or stopping stopping to avoid avoid contact contact with with the Perlman Perlman Vehicle. Vehicle. and/or Plaintiffs experts experts concur concur in their their respective respective opinions, opinions, based based upon upon the the actual actual hazardous hazardous Plaintiffs weather conditions conditions (ice, (ice, snow, snow, wet and slippery roads with with reduced reduced traction), traction), that road and weather slippery roads defendant should should have have been been driving driving at a speed speed no more more than than 27.5 miles miles per per hour hour in accordance accordance defendant with trucking trucking industry industry safety safety standards standards and practices, practices, good and accepted accepted driving driving practices, practices, with provisions of of the Federal Federal Motor Motor Carrier Carrier Safety Safety Regulations, Regulations, statements statements of of the United United States States provisions Department of of Transportation, Transportation, and and other other authorities. authorities. Department Plaintiffs expert expert Alicia Alicia C. Wasula, Wasula, PhD, PhD, a certified certified consulting consulting meteorologist meteorologist attests attests Plaintiffs that steady steady precipitation precipitation began began in New Paltz at approximately approximately 11PM II PM on December December 28, 28, 2015, 2015, that New Paltz th which was a mix mix of of snow, snow, sleet sleet and freezing freezing rain. By 7 7AM December 29th, , 1.4 inches inches of of which AM on December snow had fallen fallen and the temperature temperature was 27 degrees. degrees. At the time time of of the the accident, accident, a mix of of new snow freezing rain and sleet sleet was falling. freezing 8 8 of 10 [*FILED: 9] WESTCHESTER COUNTY CLERK 12/03/2018 02:22 PM NYSCEF DOC. NO. 179 INDEX NO. 58591/2016 RECEIVED NYSCEF: 12/03/2018 However, movants' movants' expert expert notes notes that that the manuals manuals and guides raised by plaintiff However, guides raised plaintiff are merely a study study guide standard of of care imposed imposed by law on all drivers drivers of of commercial commercial merely guide and not a standard trucks trucks (Bruce (Bruce Ketchan, Ketchan, Ex S) Based upon upon this this record, record, and review review of of the experts experts reports, reports, plaintiffs plaintiffs experts experts contentions contentions Based defendant contributed contributed to the accident accident by failing failing to maintain maintain a proper proper speed under the that defendant speed under prevailing weather weather and road road condition condition were speculative speculative at best, best, and and insufficient insufficient to defeat defeat a prevailing motion for summary (Eichenwald v. Chaudhry, Chaudhry, 17 AD3d AD3d 403, 403, 404 404 [2005] [2005]).). New motion summary judgment judgment (Eichenwald New York State law provides provides that that "No "No person person shall drive drive a vehicle vehicle at a speed speed greater greater than than is York reasonable and prudent under the conditions conditions and having regard to the actual potential reasonable prudent under having regard actual and potential hazards then then existing" existing" (VTL (VTL §~1180). While plaintiff plaintiff argues that there there are unresolved unresolved issues issues of of hazards 1180). While argues that whether defendant defendant violated violated VTL VTL §1180 ~1180 (a) by allegedly allegedly proceeding proceeding at an excessive excessive fact as to whether view of of the wet wet road road conditions, conditions, this may be considered considered to be a triable triable issue issue of of fact in speed in view other situations situations where where the speed speed caused caused the accident, accident, but but does does not hold hold true true for the facts before before other this court. Moreover, the argument argument that that Iron Mountain Mountain was required required to shut shut down Moreover, d0wn its fleet in light of the winter winter weather weather conditions conditions which which were fairly routine routine at the place place of of the accident accident has no of basis in law or fact. Iron Mountain Mountain employees employees testified testified that that there there was was some some wet wet snow snow basis overnight, and no dangerous dangerous condition condition on the road that that would would warrant warrant shutting shutting down down its fleet. overnight, Defendant's speed speed elicited elicited by the experts experts and the deposition deposition testimony testimony was was lower lower than than Defendant's posted speed speed limit. Defendants Defendants experts experts Dr. Joseph Joseph Sala Sala and Dr. John John Zolock Zolock opined opined that that the posted defendant did not contribute contribute to the accident accident in any way, way, and and concluded concluded that that her her conduct, conduct, defendant including her speed, speed, was was reasonable. reasonable. including 9 9 of 10 [*FILED: 10] WESTCHESTER COUNTY CLERK 12/03/2018 02:22 PM NYSCEF DOC. NO. 179 INDEX NO. 58591/2016 RECEIVED NYSCEF: 12/03/2018 conclusion, even even though though the evidence evidence is viewed, viewed, as it must must be, in the light light most most In conclusion, favorable to plaintiff plaintiff and the driver driver as the nonmoving nonmoving parties, parties, they they fail to raise raise an issue issue of favorable of fact of defendant's defendant's non-compliance non-compliance with with governing Vehicle and Traffic Traffic Law Law sections, sections, and any of governing Vehicle contributing during the accident. accident. contributing factor factor of of defendants' defendants' conduct conduct prior prior to or during NOW, therefore therefore for the above above stated stated reasons, reasons, it is hereby hereby NOW, ORDERED, that Iron Mountain Mountain and Ari Fleet, LT., (Seq (Seq 4 ), and defendant, defendant, Susan ORDERED, Susan L. Lamoreaux (Seq summary judgment Granted, and the complaint Lamoreaux (Seq 5) motions motions for summary judgment are Granted, complaint is dismissed as against against them; them; and it is further further dismissed ORDERED, that the remaining remaining parties parties are directed appear in the Settlement Settlement ORDERED, directed to appear Conference Part on January January 15, 2019 2019 , at 9: 15 15 a.m. in courtroom courtroom 1600 of Westchester Conference of the the Westchester County Courthouse, Courthouse, 111 111 Dr. Martin Martin Luther Luther King King Jr. Blvd., Blvd., White White Plains, Plains, New County New Yark York 10601. Clerk shall mark mark his records records accordingly. The Clerk accordingly. matters not herein herein decided decided are denied denied.. This This constitutes constitutes the Decision Decision and Order Order of of All matters court. the court. Dated: December 33,, 2018 2018 December White Plains, Plains, New Yark White New York HaN. CHARL ~ D. WOOD Justice of the Supreme Supreme Court Parties by NYSCEF NYSCEF To: All Parties .I 10 10 of 10

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