Gritsus v Coincon

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Gritsus v Coincon 2018 NY Slip Op 34176(U) August 28, 2018 Supreme Court, Orange County Docket Number: Index No. EF008125-2016 Judge: Catherine M. Bartlett 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. INDEX NO. EF008125-2016 FILED: ORANGE COUNTY CLERK 08/29/2018 11:50 AM NYSCEF DOC. NO. 51 RECEIVED NYSCEF: 08/29/2018 SUPREME COURT-STATE OF NEW YORK IAS PART-ORANGE COUNTY Present: HON. CATHERINE M. BARTLETT, A.J.S.C. SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ORANGE ----------------------------------------------------------x V ADIM GRITSUS, To commence the statutory time period for appeals as of right (CPLR 5513 [a]), you are advised to serve a copy of this order, with notice of entry, upon all parties. Plaintiff, -againstLYNNEA COINCON, KEITH COINCON and JAMES BARTELINI, Defendants. ---------------------------------------------------------------------x Index No. EF008125-2016 Motion Date: July 9, 2018 The following papers numbered 1 to 6 were read on defendant James Bartelini's motion for summary judgment, and Plaintiff's cross-motion to dismiss the Coincon defendants' affirmative defenses: Notice of Motion (Bartelini) -Affinnation I Exhibits -Affidavit ...................... 1-3 Affirmation in Opposition (Coincon) ........ ·. . . . . . . . . • . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Notice of Cross Motion (Plaintiff) - Affinnation / Exhibits . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Reply Affirmation (Bartelini) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 Upon the foregoing papers it is ORDERED that the motion is disposed of as follows: This is a personal injury action arising out of an accident that occurred on September 25, 2016 on State Highway 17M in the Village of Monroe, New York. Defendant Lynnea Coincon was making a left tum from a Dunkin Donuts parking lot onto Route 17M westbound. She was facing a stop sigr;i, and failed to yield the right of way to defendant James Bartelini, who was 1 Filed [* 1]in Orange County 08/29/2018 11 :50:06 AM $0.00 1 4 Bk:of 5122 Pg: 829 Index:# EF008125-2016 Clerk: SW INDEX NO. EF008125-2016 FILED: ORANGE COUNTY CLERK 08/29/2018 11:50 AM NYSCEF DOC. NO. 51 RECEIVED NYSCEF: 08/29/2018 traveling eastbound on 17M. With almost no time to react, Mr. Bartelini struck defendant Coincon's vehicle and pushed it onto the north shoulder of the roadway, where it struck Plaintiffs bicycle. Vehicle and Traffic Law ("VTI.,") § 1172(a) provides in pertinent part: .•. eveiy driver of a vehicle approaching a stop sign shall stop at a clearly marked stop line, but if none, then shall stop before entering the crosswalk on the near side of the intersection... and the right to proceed shall be subject to the provisions of section 1142. YTL §l 142(a) provides in pertinent part: ...eveiy driver of a vehicle approaching a stop sign shall stop as required by section 1172 and after having stopped shall yield the right of way to any vehicle which has entered the intersection from another highway or which is approaching so closely on said highway as to constitute an immediate hazard during the time when such driver is moving across or within the intersection. Mr. Bartelini established prima facie entit]ement to summaiy judgment by proving that Ms. Coincon failed to yield the right of way to his vehicJe in violation of VTL §§ 1172(a) and l 142(a), and that he himself was free from comparative fault. The failure of a motorist to yield the right of way in violation of the statute is negligence as a matter of law and cannot be disregarded by the juiy [cit.om.]. A driver is entitled to partial summary judgment on the issue of liability based on defendant's violation of YTL §1 l 42(a) [cit.om.]. A driver is entitled to anticipate that a motorist facing a stop sign will yield the right of way [cit.om.]. The fact that the view of a motorist properly stopped is obscured does not exculpate the motorist; the motorist is under a common-law duty to see what is there to be seen [cit.om.]. Further, the fact that the motorist may have initially stopped at the stop sign does not negate his liability if he subsequently fails to yield the right of way [cit.om.]. IA NY PJI 3d 2:80, at 501-502 (2018). See, e.g., Maliza v. Puerto-Rican Transp. ~orp., 50 AD3d 650 (2d Dept. 2008); Bolta v. Lohan, 242 AD2d 356 (2d Dept. 1997). Furthennore, "a driver with the right-of-way who has only seconds to react to a vehicle that has failed to yield is not comparatively negligent for failing to avoid the collision." See, Bennett v. Granata, 2 [* 2] 2 of 4 INDEX NO. EF008125-2016 FILED: ORANGE COUNTY CLERK 08/29/2018 11:50 AM NYSCEF DOC. NO. 51 RECEIVED NYSCEF: 08/29/2018 · 118 AD3d 652,653 (2d Dept. 2014); Barbato v. Maloney, 94 AD3d 1028, 1030 (2d Dept. 2012); Socci v. Levy, 90 AD3d 1020, 1021 (2d Dept. 2011). The evidence shows that Mr. Bartelini had no meaningful opportunity to avoid the Coincon vehicle when it failed to yield the right of way, and that Mrs. Coincon's negligence was the sole proximate cause of the accident. See, Riccuiti v. Porcu, 124 AD3d 616, 617 (2d Dept. 2015). Plaintiff does not oppose Mr. Bartelini's motion. Mrs. Coincon's speculative and conclusory assertion that Mr. Bartelini should have seen her vehicle and taken evasive measures is unsupported by the record and insufficient to withstand summary judgment. See, Socci v. Levy, supra; Mateiasevici v. Daccordo, 34 AD3d 651, 652 (2d Dept. 2006). Accordingly, Mr. Bartelini is entitled to summary judgment dismissing the claims against him. Plaintiff's motion for an order striking affirmative defenses is unopposed. It is therefore ORDERED, that defendant James Bartelini's motion for summary judgment is granted, and it is further ORDERED, that the Plaintiff's Amended Complaint as against defendant James Bartelini is dismissed, and it is further ORDERED, that the cross-claim of defendants Lynnea and Keith Coincon against defendant James Bartelini is dismissed, and it is further ORDERED, that Plaintiff's cross motion to strike affirmative defenses is granted, and it is further 3 [* 3] 3 of 4 INDEX NO. EF008125-2016 FILED: ORANGE COUNTY CLERK 08/29/2018 11:50 AM NYSCEF DOC. NO. 51 RECEIVED NYSCEF: 08/29/2018 ORDERED, that the Paragraphs labeled "Seventh", "Ninth", "Eleventh", "Fourteenth'\ "Sixteenth" and "Seventeenth" in the Amended Answer of defendants Lynnea and Keith Coincon are stricken. The foregoing constitutes the decision and order of this Court. Dated: Augus~-, 2018 Goshen, New York ENTER HON. CATHERINE M. BARTLETT, A.J.S.C. HON. C. M. BARTlffi JUDGE NY STATE COURT OF CLAIMS ACTING SUPREME COURT JUSTICE 4 [* 4] 4 of 4

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