Caltenco v Orange County Medi-Coach, Inc.

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Caltenco v Orange County Medi-Coach, Inc. 2018 NY Slip Op 34314(U) December 20, 2018 Supreme Court, Orange County Docket Number: Index No. EF005737-2016 Judge: Sandra B. Sciortino 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. EF005737-2016 FILED: ORANGE COUNTY CLERK 01/03/2019 12:03 PM NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 01/03/2019 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 aH parties. SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ORANGE -- . ·- . - .- -------------------------------------------------------- . X ~USAN. CALTENCO, Plaintiff; . IndexNo. EF005737-2016 - againstORANGE COUNTY MEDI-COACH, INC., TIMOTHYDOWLING, PAULA CALTENCO and ALEXIA CALTENGO, Defendants .. ---------~---_;-~;.;..;.;.-----~-..;.---~--~--------~--_;-_______________,_____ ~x .... ·. ·.- . - . . .- . ·- . DECISION AND ORDER Motion Date: 1()/l9/l 8 Motion Sequence #J SCIORTINO, J. The following papers numbered· 1 .-"·5 anc_l the exhibits annexed thereto \\'ere read on this motion by defendants,Orange County Medi-Coach, Inc. and Timothy Dowling, for an order pursuant to Ci>LR3212 granting them summary judgment dismissing all claims against them in this action broug.ht by plaintiff to recover damages ror personal injudes aiiegedly sustained ;as a result ofa motor vehicle accident: PAPERS 'NUMBERED. 1.,.2 Notice ofMotion...cAffirmation Affirmation 1n Opposition Affirmatibn iri Qpposition Reply Aftirnfat1on 3 4 5 Plaintiff commenced this action on August 19,_2016 to recoverJor personal injuries allegedly sustained on November 6, 201Swhen two motor vehicles collicled at .the 1htersectioriofEast Mairi Street and Grand Avenue. in the City ofMiddletowh. Discovery is complete arid the plaintiff has filed .a, note of issue; Defendants, Orange Cou_nty Medi-:Coach, Inc. and Timothy Dowling, :now Filed [* 1]in Orange County 01/03/2019 12:00:00 AM $0.00 1Bk:of 5 5121 Pg: 444 Index:# EF005737-2016 Clerk: SW FILED: ORANGE COUNTY CLERK 01/03/2019 12:03 PM NYSCEF DOC. NO. 39 INDEX NO. EF005737-2016 RECEIVED NYSCEF: 01/03/2019 niove for summary judgment on the grounds that they were not negligentin connectibhwith the motor vehicle accident. Plaintiff was a passenger in a vehicle owned ~y d~fendantPaula Cahenco and operated by defertdant,Alexia Caltenco (''Caltericovehicle"). At the time of the accici~nt, the Caltenco vehicle · was in the process of making a ieftfurn from the westbound left-tum lane of EastMain Street onto the northbound lane ofGrand Avenue. The othervehicle111volvedin the accident was owned by defendant; Orange County ·Medi.:Coach, Inc., and .operated by defendant, Timothy bowling ("Dowling vehicle"). The. Dowling vehicle was traveling eastbound on East Main Street -intending . to cross the intersection. The intersection was controlled by ·a traffic light and at the. time of the accide11t, the l_ight was green for traffic _proceedingeast/west on East Main Street. In addition to lanes for traffic traveling through the intersection, East Main Street also .has lefHum· lanes for eastbound and westbound traffic .at the intersection. The 9Clntact between the vehi_cles occurred within the intersection in the eastbound lane of East Main Street. The front of the. Dowling vehicle . was in contact with the passengers ·side doors of the Calterico vehicle. Dowling testified that he stopped his Vehicle on ·East Main Street before reach1rig the intersection, behind cars_stopped for the red .light. When the light turned.green, he moved toward the intersection. The vehicle in front 9fhim moved into the left turn lane and he continued driving his vehicle into the Intersection. Dowling testified that the Caltenco vehicle puBed in front of him. He saw the vehicle only a second before impact and, while he did apply the brakes, he could not take any other action to avoid contacfwith the Calteri.co vehicle. AlexiaCaltenco testified·thatshe was stopped facing .west in theleft-tum lane on EastMain Street waiting to tum left onto Grand Avenue. Wheri she started to make the left tum, she did not 2 [* 2] 2 of 5 INDEX NO. EF005737-2016 FILED: ORANGE COUNTY CLERK 01/03/2019 12:03 PM NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 01/03/2019 see any -vehicles in the eastbound lane of East Main Sfr~et. She testified that she had a clear view of the eastboimd lane arid did not see the Dowling vehicle until after there was ,c ontact between the vehicles. At that point, she said the vehicle was more than half way through the tum~ The plaintiff, a passenger seatecl in the front passenger seat of the Calterico vehicle, saw the Dowling vehicle through the passenger's side window ''two seconds" before the vehicles colltdecL When plaintiffsaw the Dowling vehicle, she said the Caltenco vehicle was ha.If waythrough"making the left handttim. The moving defendants contend that they are entitled to summary judgment because the defend~ntAlexia Caltenco violated the rules of the road in that she _failed to see what was _there to be :seen. and 'that she violated Vehicle and Traffic Law section ll41 by turning: left into the ' ' intersection when it was not safe to do so. ' ' The moving defendants are not entitled to summaryjudgmentbecause they failJo eliminate all triable issues of fact with .respect to Dowling's culpable conduct. It iswell establlshedthat the "proponent of a summaryjtidgmerit motion rnustinake a priina facie showing-of entitlement to judgment:as a matter oflaw, tendering sufficient evidence to eiirniriate anYinaterial issues of fact from the case. (Winegrad v Ne1v York University Medical Center, 64 NY2d 851 [1985]) As summaryjudgment is a drastic reIT1edy,jt should not be gr~nted where there is any doubt as to the ' ' existence ofa trfableissue. (Rotuba Extruders v Ceppos, 46 NY2d 223 [1978]) A party moving moving for summary judgment ori the Issue of liability intist.derri6ristrate the absence of friable issues of fact as to how an accident happened arid the movant;s freedom from negligence a.swell. (Antaki v Mateo, i 00 AD3d579 [2d bept 2012]) Moreover, there can be more than one proximate cause ofan accident. (Id.; Tapia vRoya!Tours Serv., Inc., 61 AD3d 894 [2dDept2009]) A driver who proceeds in the face' of a green light may be found negligent if he/she does not 3 [* 3] 3 of 5 FILED: ORANGE COUNTY CLERK 01/03/2019 12:03 PM NYSCEF DOC. NO. 39 INDEX NO. EF005737-2016 RECEIVED NYSCEF: 01/03/2019 use reasonable care to avoid coUision with other vehicles. (Tapia, 67 AD3d 894) The driver with the right of way is still required to see what can be seen through thereasonable use of his senses in order fo avoid collidingwith other vehicles. (Afarkv NelV York City, 150 AD3d 980 [(2d Depf2017], Hartsuff vMichaels, 139 AD3d 1005 [2d Dept 2016], _Frey v R_ich,nond flill Lu111ber &Supply, 139 AD3d .803 [2d Dept 2015], Calderon-Scotti v Rosenstein, . 119 AD3d 722 [2d ·Dept 2_014]) The · failure to do so can resultina finding of negligence. (Mark, . 150 AD3d .980; Hartsujf 139 AD3d 1005; Frey, 139 AD3d 803; Calderon-Scotti, ii 9 AD3d 722) Here, neither driver saw the· other vehicle until it was too late.to avoid contactbehveen the vehicles~ Dowling's view of the intersection was not obstructed after the vehicle .in front of him moved into the left.tum lane. The points of contact of the vehicles as depicted on the police accident report and the photographs of the Caltenco vehicle would indicate that the Caltenco vehicle was well within the intersection prior to the time ofimpact 1 These facts demonstrate the existence of a friable issue of fact as to whether Dowling should have seen what was there to be seen bef()re entering tlie intersection. As discussed above; even °ifDowiing is deemed the driver with the righf.;of-way and was entitled to assume that a vehicle turning left from the oppositelarie would obey the trafficlaws, Dowling was required to see what can be seen through the reasonable use of his senses in order to avoid colliding with other vehicles. :Having failed to demonstrate· that I?owling was not negligent as a matter of law, the moving defendants have failed to meet their bµrden 011 the ·motion fo_r summaryjudgmerit. Accordingly, based tipori the foregoing, it is hereby 1This also raises an issue of fact as to the applicabilityof Vehicle and Traffic.Law section 1141. This.section would nQt apply ifthe.CaltencoVehiclewas in the intersection whenDowling ·could have reacted. 4 [* 4] 4 of 5 INDEX NO. EF005737-2016 FILED: ORANGE COUNTY CLERK 01/03/2019 12:03 PM NYSCEF DOC. NO. 39 RECEIVED NYSCEF: 01/03/2019 ORDERED, tha.t the defendants' motion for summary judgment is denied; . . - - . . - A conference will be held in this matter on January 16, 2019 at 9:00 AM The foregoing constitutes the Decision and Ord.er ofthe Court~. Dated: December 20,2018 Goshen, NewYork :. -~ , ... TO: .. . . ·.. . . ,•· •, . ' . .· · . ·. . ' ~ ' . . .. . •. .HON. SANDRA B. SCIORTINO, J.S.C. Counsel ofRecor~ via NYSCEF 5 [* 5] :· ·. 5 of 5

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