Fretz-Iversen v Bellsey

Annotate this Case

Download PDF

Fretz-Iversen v Bellsey 2018 NY Slip Op 34179(U) April 30, 2018 Supreme Court, Westchester County Docket Number: Index No. 67030/2016 Judge: Sam D. Walker 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: WESTCHESTER COUNTY CLERK 05/07/2018 09:44 AM NYSCEF DOC. NO. 46 INDEX NO. 67030/2016 RECEIVED NYSCEF: 05/04/2018 commence the the statutory statutory To commence time for for appeals appeals as of of right right ·. time 5513[a)), you you are (CPLR 5513[a]), advised to serve serve a copy copy advised of this this order, order, with notice of with notice of entry, entry, upon upon all parties. parties. of SUPREME COURT COURT OF THE THE STATE STATE OF NEW NEW YORK SUPREME YORK WESTCHESTER COUNTY COUNTY WESTCHESTER PRESENT: HON. HON. SAM SAM D. WALKER WALKER, , J.S.C. J.S.C. PRESENT: -_ -_ -_ -_ -_ -_ -_ -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- -- X ANNE FRETZ-IVERSEN, ANNE FRETZ-IVERSEN, DECISION & ORDER ORDER DECISION Index No. 67030/2016 67030/2016 Index Seq# 1 Seq# Plaintiff, Plaintiff, -against-against- ELIZABETH B. BELLSEY BELLSEY and WILLIAM WILLIAM P. ELIZABETH BELLSEY, BELLSEY, Defendant. Defendant. _____________-------------------------x - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - X The following following papers papers were were considered considered on the defendant's defendant's motion motion pursuant pursuant to CPLR CPLR The 3212, seeking seeking summary summary judgment the issue issue of liability: liability: 3212, judgment on the 1-9 10 Notice of Motion/Affirmation/Exhibits Motion/Affirmation/Exhibits A-G A-G Notice Memorandum of Law Law in Support Support Memorandum Based on the the foregoing foregoing submissions submissions the motion motion for for summary summary judgment Based judgment is GRANTED. GRANTED. FACTUAL AND PROCEDURAL BACKGROUND FACTUALANDPROCEDURALBACKGROUND Plaintiff commenced commenced the action action on November November 11, 2016, 2016, by filing filing a summons summons and Plaintiff complaint. This This matter matter arises arises out out of a motor motor vehicle vehicle collision collision that that occurred occurred on November November complaint. 13, 2013, 2013, when when the defendant defendant Elizabeth Elizabeth B. Bellsey Bellsey ("Bellsey") ("Bellsey") proceeding proceeding on Columbus Columbus Avenue toward the the intersection intersection at Lexington Lexington Avenue, Mount Kisco, Kisco, stopped stopped at the the stop stop Avenue toward Avenue, in Mount sign and then Anne Fretzthen turned turned left, colliding colliding with the vehicle vehicle driven driven by the the plaintiff, plaintiff, Anne FretzIversen. Bellsey Bellsey stated stated that that she had a clear clear view view of the intersection, intersection, without obstruction without obstruction Iversen. 1 [* 1] 1 of 4 FILED: WESTCHESTER COUNTY CLERK 05/07/2018 09:44 AM NYSCEF DOC. NO. 46 INDEX NO. 67030/2016 RECEIVED NYSCEF: 05/04/2018 and acknowledged was required stop and yield yield to all traffic traffic at the the intersection. acknowledged that that she was required to stop intersection. Bellsey thought the collision was her fault. fault. Bellsey testified testified that that she thought collision was The files the instant seeking summary summary judgment judgment on the issue The plaintiff plaintiff now now files instant motion motion seeking issue of liability. liability. The The defendant defendant did not oppose oppose the motion. motion. DISCUSSION DISCUSSION seeking summary summary judgment judgment bears A party party seeking bears the initial initial burden burden of affirmatively affirmatively demonstrating summary judgment judgment as a matter demonstrating its entitlement entitlement to summary matter of law (see (see Winegrad Winegrad v New Alvarez v Prospect Prospect Hospital, Hospital, 68 NY2d New York Univ. Med. Ctr., 64 NY2d 851,853 851,853 [1985]; [1985]; Alvarez [1986]). 320 [1986]). order to establish establish a prima prima facie entitlement to judgment matter of law, it is In order facie entitlement judgment as a matter incumbent upon upon the movant movant to come come forward forward with evidentiary evidentiary proof, proof, in admissible incumbent admissible form, form, triable issues fact on the issue demonstrating demonstrating the the absence absence of any triable issues of fact issue of liability liability (see Franks Franks Real Estate Estate Holding 619 [2d Dept Dept 2005], 2005], citing, citing, We/wood Welwood v v G & H Real Holding Corp., 16 AD3d AD3d 619 Association for Children Children with Down Syndrome, 248 AD2d Dept 1998]). 1998]). Association for Down Syndrome, AD2d 707, 708 708 [2d Dept support of of her motion, motion, the plaintiff plaintiff submits submits her her deposition, deposition, Bellsey's Bellsey's deposition, deposition, In support attorney's affirmation, affirmation, copies copies of the pleadings, pleadings, and a copy copy of the police report an attorney's police report (uncertified). (uncertified). The evidence evidence demonstrates demonstrates the plaintiff's plaintiff's prima prima facie facie entitlement entitlement to judgment The judgment as a matter of law on the issue liability by establishing establishing that that Bellsey's Bellsey's vehicle proceeded into issue of liability vehicle proceeded matter intersection controlled controlled by a stop stop sign without without yielding yielding the right of way way to the approaching approaching an intersection vehicle (see (see Vehicle Vehicle and Traffic Traffic Law Law § S 1142[a]}, 1142[a]), thereby thereby shifting shifting the the burden burden to the vehicle [* 2] 2 of 4 str e tthe e existe ac ual is_ ue re defendant existencee of of a factual issue reauirina a trial (see Goemans efe d to demonstrate e rial L ee Goe an FILED: WESTCHESTER COUNTY CLERK 05/07/2018 09:44 AM NYSCEF DOC. NO. 46 INDEX NO. 67030/2016 RECEIVED NYSCEF: 05/04/2018 established its prima 2008] ["the County of of Suffolk, Suffolk, 57 AD3d Dept 2008] ["the County County established prima 479 [2d Dept 478, 479 AD3d 478, v County yield the failed to yield Sellers failed that Sellers evidence that facie matter of law by evidence of law judgment as a matter entitlement to judgment facie entitlement right-of-way upon upon entering entering the the subject subject intersection intersection in violation violation of of Vehicle Vehicle and Traffic Traffic Law right-of-way S 1142(a) 1142(a) and thus thus was negligent as a matter matter of law."]; Thompson Thompson v Schmitt, Schmitt, 902 NYS.2d NYS.2d was negligent § judgment as a 606, 607 607 [2d Dept Dept 201 2010] [Plaintiff established established prima prima facie entitlement to judgment facie entitlement 0] [Plaintiff 606, was who was driver, who matter of law on the issue of liability by demonstrating defendant driver, the defendant "that the demonstrating "that of liability the issue of law matter without the intersection entered the negligently entered faced intersection ... ...negligently intersection without the intersection stop sign at the with a stop faced with yielding the the right of of way approaching vehicle vehicle and that that this this was sole proximate proximate was the sole way to his approaching yielding cause of the accident".]) the accident".]) cause while the stop sign, while The required to stop her vehicle vehicle at a stop stop her was required defendant was the defendant that the fact that The fact that the established that stop, established plaintiff's route route of not encumbered requirement to stop, encumbered by a requirement was not travel was of travel plaintiff's Adler, (/d.; see see also, also, Szczotka Szczotka v Adler, defendant failed failed to yield the the right of way way to the plaintiff plaintiff1 1 (Id.; defendant fails to yield 444 [2d Dept Dept 2002])2. 2002]f driver who yield the right-of-way right-of-way after after stopping stopping who fails "A driver AD2d 444 291 AD2d Traffic Law§ Vehicle and Traffic controlling traffic of Vehicle Law S 1142(a) 1142(a) and is violation of traffic is in violation stop sign controlling at a stop see 2007]; see negligent as a matter matter of Gergis v Miccio, Miccio, 39 AD3d Dept 2007]; 468 [2d Dept 468, 468 AD3d 468, of law" (see Gergis negligent 2008]). 650 [2d Dept AD3d also 3d 650 Dept 2008]). Puerto-Rican Transp. Corp., 50 AD Maliza v Puerto-Rican also Maliza VTL 91142 specifically specifically provides provides that "Except when directed to proceed proceed by a police police officer, officer, every every driver driver of of a when directed that "Except VTL §1142 vehicle approaching a stop stop sign sign shall shall stop stop as required required by section section eleven eleven hundred hundred seventy-two seventy-two and and after after having having vehicle approaching from another stopped right ofway of way to any vehicle entered the intersection intersection from another highway highway which has entered vehicle which the right yield the shall yield stopped shall when time when the time during the or which approaching so closely closely on said highway as to constitute immediate hazard hazard during constitute an immediate said highway which is approaching § 1142[a]). such moving across intersection." (VTL (VTL 9 1142[a]). the intersection." within the or within across or driver is moving such driver 2 Szczotka v. Adler, Adler, the plaintiff plaintiff moved moved for for summary summary judgment issue of of liability liability asserting asserting that that the judgment on the issue In Szczotka defendant failed failed to stop stop at the stop stop sign. In opposition, opposition, the defendant defendant asserted asserted that that he did stop stop at the stop stop sign defendant whether that the the plaintiff plaintiff must must have have been been speeding. speeding. The The Second Second Department Department held that that "[r]egardless "[rjegardless of whether and that Vehicle and Traffic defendant stopped stopped at the stop stop sign, the plaintiff plaintiff established established that that the the defendant defendant violated violated Vehicle Traffic the defendant Law 9 1142(a), 1142(a), by failing right of way (Id.). way to her". (Id.). the right yield the failing to yield Law§ 3 [* 3] 3 of 4 FILED: WESTCHESTER COUNTY CLERK 05/07/2018 09:44 AM NYSCEF DOC. NO. 46 INDEX NO. 67030/2016 RECEIVED NYSCEF: 05/04/2018 Furthermore, Furthermore, the the defendant defendant was was obligated obligated to see see that that which which by the the proper proper use of of her her senses she she should should have have seen, seen, "and "and the the plaintiff, plaintiff, as the the driver driver with with the the right-of-way, right-of-way, was was senses entitled to anticipate anticipate that that the the defendant defendant would would obey obey traffic traffic laws laws which which required" required" her to yield entitled (see Moussouros Moussouros v Liter, Liter, 22 AD3d AD 3d 469,470 469, 470 [2d Dept Dept 20051). 2005]). (see Accordingly, judgment on the Accordingly, the the plaintiff's plaintiff's motion motion for for summary summary judgment the issue issue of of liability liability is granted. The The foregoing foregoing constitutes constitutes the the decision decision and order order of of the the court. court. granted. Dated: Dated: White White Plains, Plains, New New York York April 3' ,f.>->) 2018 2018 April J N. SAM D. WALKER, J.S.C. ~ 4 [* 4] 4 of 4

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.