Gonzalez v Marini

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Gonzalez v Marini 2018 NY Slip Op 34330(U) October 10, 2018 Supreme Court, Westchester County Docket Number: Index No. 69813/2016 Judge: William J. Giacomo 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 10/11/2018 12:14 PM NYSCEF DOC. NO. 60 INDEX NO. 69813/2016 RECEIVED NYSCEF: 10/11/2018 commence the the statutory statutory time time To commence period for for appeals appeals as of of right right period (CPLR 5513 (al), [aJ), you you are advised advised (CPLR serve a copy copy of of this this order, order, with with to serve notice of of entry, entry, upon upon all all parties. parties. notice SUPREME COURT COURT OF THE THE STATE STATE OF NEW NEW YORK YORK SUPREME COUNTY OF WESTCHESTER WESTCHESTER COUNTY PRESENT: HON. HON. WILLIAM WILLIAM J. J. GIACOMO, GIACOMO, J.S.C. J.S.C. PRESENT: -----------------------------------------~ -----------------------------------------x ROLANDO GONZALEZ, GONZALEZ, as Guardian Guardian for for AUGUSTIN AUGUSTIN ROLANDO GREGORIO GREGORIO GONZALEZ, GONZALEZ, Plaintiff, Plaintiff, Inde~ No. 69813/2016 69813/2016 Index -against- againstDECISION & ORDER ORDER DECISION JULIE MARINI, MARINI, as Guardian Guardian Ad litem for for ANTOINETTA ANTOINETIA JULIE MARINI, and LORETO LORETO MARINI, MARINI, MARINI, Defendants. Defendants. -----------------------------------------x -- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ~ action to recover recover damages damages for for personal personal injuries, injuries, the the defendant defendant moves moves for In an action summary judgment, pursuant to CPLR CPLR 3212, 3212, dismissing dismissing the the complaint: complaint: summary judgment, pursuant Papers Papers Considered Considered 1. Notice Notice of Motion/Affirmation Motion/Affirmation of Andrea Ferrucci, Esq./Exhibits Esq.lE~hibits A-J; 1. Andrea E. Ferrucci, A-J; Affirmation of Keith McMillan, McMillan, Esq. in Opposition/Affidavit Opposition/Affidavit of of 2. Affirmation Donald D. Hoffman, Hoffman, Ph.D, DABFT/Exhibits DABFT/E~hibits A-G; Donald Reply Affirmation Andrea E. Ferrucci, Ferrucci, Esq. Esq.11 3. Reply Affirmation of Andrea Factual and and Procedural Procedural Background Background Factual December 8, 8,2016, appro~imately 5:44 5:44 p.m., p.m., the the plaintiff, plaintiff, a pedestrian, pedestrian, was was On December 2016, at approximately struck by a vehicle vehicle operated operated by the the defendant defendant Antoinetta Antoinet!a Marini Marini and owned owned by her struck husband, the defendant defendant Loreto Loreto Marini. Marini. The The accident accident occurred occurred on Marble Marble Avenue husband, Avenue in Pleasantville. The The portion portion of Marble Marble Avenue Avenue where where the accident accident occurred occurred is straight straight and Pleasantville. divided by a double double yellow yellow line, and has a posted posted speed speed limit limit of 30 mph. There There is level, divided one lane of traffic traffic in each direction. direction. Loreto Loreto Marini Marini was was in the the passenger passenger seat seat of the the vehicle vehicle one the Marin Marini's granddaughter was was in the the back back seat seat at the the time time of the the accident. accident. . and the i's granddaughter Defendants move move for for summary summary judgment dismissing the the complaint complaint on the grounds grounds Defendants judgment dismissing that the sole sole proximate pro~imate cause cause of the accident accident was was that that the the plaintiff plaintiff was was intoxicated into~icated and that 11 The [* 1] improper sur-reply sur-reply of of Keith McMillan, McMillan, Esq, Esq. has not not been considered considered by the the Court. Court. improper 1 of 4 FILED: WESTCHESTER COUNTY CLERK 10/11/2018 12:14 PM NYSCEF DOC. NO. 60 INDEX NO. 69813/2016 RECEIVED NYSCEF: 10/11/2018 Gonzalez v. Marini, Marini, Index Index No. 69813/2016 69813/2016 Gonzalez improperly crossed crossed in the middle of the street street without Marini vehicle improperly the middle without yielding yielding to the Marini vehicle in violation 1152(a). violation of Vehicle Vehicle and Traffic Traffic Law 1152(a). Defendants submit submit a certified certified police police report report demonstrating Defendants demonstrating that that the operator operator of the vehicle stated was driving Avenue when when the pedestrian out vehicle stated she she was driving north on Marble Marble Avenue pedestrian stepped stepped out front of her her car: The pedestrian pedestrian was unable to provide provide a statement due to his injuries. injuries. in front car. The was unable statement due The police police report report also also indicates indicates that apparent contributing The that apparent contributing factors factors to the the accident accident was was pedestrian error error or confusion. confusion. pedestrian The testified at an examination trial that that his wife wife The defendant defendant Loreto Loreto Marini Marini testified examination before before trial driving the accident. Approximately eight to ten seconds seconds was driving the vehicle vehicle at the time time of the accident. Approximately eight observed the the plaintiff plaintiff standing standing in the southbound lanes of Marble Marble Avenue southbound lanes Avenue with prior, he observed down. The The plaintiff plaintiff dropped picked it up and jumped his head down. dropped something, something, then then picked jumped into their their travel. Mr. Marini Marini testified brakes. lane of travel. testified that that his wife wife slammed slammed on the brakes. Alexandra Marini testified at an examination examination before before trial trial that that she she was was sitting sitting in the Alexandra Marini testified back She observed the double double yellow yellow line of the street back seat seat of the vehicle. vehicle. She observed the plaintiff plaintiff at the street while approximately a car length length or less than length away. away. The The while the vehicle vehicle was was approximately than a car length plaintiff looked looked at the car, backed backed up, and then jolted her grandmother plaintiff jolted forward, forward, while while her grandmother braked. braked. Detective Morgan Morgan Cole-Hatchard Based the accident. accident. Based Detective Cole-Hatchard responded responded to the the scene scene of the upon that the pedestrian was not crossing crossing in a upon her her investigation, investigation, she concluded concluded that pedestrian was designated crosswalk. Detective Cole-Hatchard she asked asked the designated crosswalk. Detective Cole-Hatchard testified testified that that she the doctors doctors if alcohol was present in plaintiff's plaintiffs system system and the response response was alcohol was present was that that a substantial substantial amount amount of alcohol was present. She testified that based upon a report from the County Police, alcohol was present. testified that based report from the County Police, the Marini vehicle was was driving failed to observe observe Marini vehicle driving ten miles miles per hour hour over over the speed speed limit limit and failed testified that that the speed speed of the Marini vehicle was was "a the pedestrian. pedestrian. Det. Cole-Hatchard Cole-Hatchard testified Marini vehicle pretty Avenue, ten over pretty normal normal speed speed to be going going on Marble Marble Avenue, over ... [based [based upon] upon] [r]egular [r]egular traffic flow". Marini Marini was given a traffic summons. traffic was not given traffic summons. Defendants submit an affirmed Defendants also also submit affirmed report report of Lyle Hayes, Hayes, Ph.D. Ph.D. DABCC, DABCC, a New New York State Certified Certified Forensic Forensic Toxicologist. Toxicologist. Dr. Hayes Hayes reviewed reviewed the medical records records for the medical for York State plaintiff from Westchester Westchester Medical Medical Center Center Emergency Emergency Department. Department. Or. Dr. Hayes Hayes reported reported plaintiff that drawn from plaintiff at the hospital hospital had a blood blood alcohol that blood drawn from plaintiff alcohol concentration concentration level of 288 mg/di, mg/dl, which three times limit for driving (80 mg/di). mg/dl). According 288 which is three times the the legal limit for driving According to Dr. Hayes, this BAC may be expected to have resulted from ingestion of 10-13 drinks. Dr. Hayes, BAG may expected have resulted from ingestion of 10-13 drinks. Hayes further further states states that BAC level reported reported is expected expected to cause severe impairment, impairment, Hayes that the BAG cause severe including confusion, confusion, impairment impairment of perception perception and comprehension, comprehension, as well as significant significant including impairment of coordination, attention and balance, diminished visual acuity balance, diminished visual acuity and impairment of coordination, attention decreased speed of of response response to visual stimulation. Further, sensory-motor sensory-motor decreased speed visual stimulation. Further, incoordination, vertigo, staggering gait, and drowsiness drowsiness or loss of of consciousness consciousness are incoordination, vertigo, staggering reported at this Mental confusion confusion and disorientation disorientation by ethanol ethanol intoxication intoxication are to reported this level. Mental expected with the reported. be expected the BAC level reported. 2 [* 2] 2 of 4 FILED: WESTCHESTER COUNTY CLERK 10/11/2018 12:14 PM NYSCEF DOC. NO. 60 INDEX NO. 69813/2016 RECEIVED NYSCEF: 10/11/2018 Gonzalez v. Marini, Marini, Index Index No. 69813/2016 69813/2016 Gonzalez opposition, plaintiff plaintiff argues argues that issues of of fact exist as to defendants' defendants' negligence. negligence. In opposition, that issues fact exist Plaintiff argues argues that defendants violated violated Vehicle Vehicle and Traffic Traffic Law Law 1146 1146 by failing failing to observe observe Plaintiff that defendants avoid a pedestrian pedestrian in the roadway. Plaintiff Plaintiff further argues that that the emergency emergency and avoid the roadway. further argues doctrine the Noseworthy doctrine does does not apply apply and that that the Noseworthy doctrine doctrine does does apply. apply. Plaintiff submits submits an accident accident reconstruction reconstruction report, report, dated dated December December 8, 2016, 2016, Plaintiff prepared by Sergeant Sergeant Ezekiel Ezekiel Serrano Serrano of the the Westchester County Department Department of Public Public prepared Westchester County Safety. Plaintiff Plaintiff also also submits submits the deposition testimony Sergeant Serrano. Serrano. Sergeant Sergeant Safety. the deposition testimony of Sergeant Serrano accessed accessed and imaged imaged the Airbag Control Module/Event Module/Event Data Data Recorder Recorder from from the Serrano Airbag Control Marini vehicle. The pre-crash pre-crash data data showed showed that Marini vehicle vehicle was traveling at 42.3 Marini vehicle. The that the Marini was traveling 42.3 seconds prior prior to the frontal impact impact and 39.8 39.8 mph .8 seconds seconds prior prior to impact. impact. The The mph 4.8 seconds the frontal accelerator rate and engine engine rpm were were steady steady and the brake pedal pedal was applied during during accelerator the brake was not applied the 4.8 seconds seconds prior prior to impact. impact. Sergeant Sergeant Serrano Serrano testified Marini's foot was on the the 4.8 testified that that Marini's foot was accelerator pedal pedal from seconds before before the impact impact up until the the point point of. of the impact. No accelerator from 4.8 4.8 seconds the impact. airbags were were deployed deployed during during the collision. Sergeant Sergeant Serrano Serrano testified the weather airbags the collision. testified that that the weather was clear and the roadway was Upon his investigation investigation at the was clear the roadway was dry. Upon the· scene, scene, he did not observe any any pre or post post impact impact tire marks on the roadway. observe tire marks the roadway. Discussion Discussion The proponent proponent of of a motion motion for for summary summary judgment must make make a prima prima facie The judgment must facie showing of entitlement entitlement to judgment matter of law, tendering sufficient evidence evidence to showing judgment as a matter tendering sufficient eliminate any any material material issues issues of of fact fact from the case case (see (see Winegrad Winegrad v N. Y. Y. Univ. Med. Ctr., eliminate NY2d 851, 853 (1985]; [1985]; Zuckerman Zuckerman v City City of of New New York, 49 NY2d NY2d 557, 562 [1980]). [1980]). 64 NY2d Failure to make make such such sh.owing showing requires requires denial denial of of the motion, regardless regardless of of the the sufficiency sufficiency Failure the motion, opposing papers papers (see Winegrad Winegrad v N. Y. Y. Univ. Med. Ctr., 64 NY2d NY2d at 853). 853). of the the opposing "Once this showing has been been made, made, however, however, the burden burden shifts shifts to the party "Once this showing the party opposing the the motion motion for for summary summary judgment produce evidentiary evidentiary proof proof in admissible admissible opposing judgment to produce form sufficient sufficient to establish establish the existence existence of of material material issues issues of of fact require a trial form fact which which require trial of the action" (Alvarez (Alvarez v Prospect Prospect Hosp., Hosp., 68 NY2d 320, 324 [1986]; [1986]; see Zuckerman City the action" Zuckerman v City of New New York, 49 NY2d NY2d at 562). 562). Mere Mere conclusions, conclusions, expressions expressions of hope hope or or unsubstantiated unsubstantiated of allegations or assertions assertions are insufficient insufficient to defeat defeat a prima prima facie showing of entitlement entitlement to facie showing allegations summary judgment (see Zuckerman Zuckerman v New New York, 49 NY2d NY2d at 562). summary judgment (see "The function function of the court on a motion motion for for summary summary judgment resolve "The the court judgment is not to resolve issues of of fact fact or determine determine matters matters of credibility, credibility, but merely merely to determine determine whether such issues whether such issues exist" (kolivas v Kirchoff, 14 AD3d 493 [2d Dept 2005]; see Dykeman v Heht, issues exist" (kolivas Kirchoff, AD3d 493 Dept 2005]; see Dykeman Heht, 52 AD3d Dept 2008]). determining a motion motion for summary AD3d 767, 768 [2d Dept 2008]). Additionally, Additionally, in determining for summary judgment, evidence must must be viewed most favorable nonmovant (see judgment, evidence viewed in the the light most favorable to the the nonmovant Pearson v Dix McBride, McBride, 63 AD3d Dep't 2009]; Outback Steakhouse, Steakhouse, 39 AD3d 895 [2d Dep't 2009); Brown Brown v Outback Pearson AD3d 450,451 Dept 2007)). 2007]). 451 [2d Dept AD3d 450, Vehicle Law 1152(a) 1152(a) provides provides that pedestrian crossing crossing a Vehicle and Traffic Traffic Law that "[e]very "[e]very pedestrian roadway at any point other other than than within marked crosswalk unmarked roadway any point within a marked crosswalk or within within an unmarked crosswalk at an intersection shall yield the right of way to all vehicles upon the roadway". crosswalk intersection shall yield the of way vehicles upon the roadway". 3 [* 3] 3 of 4 FILED: WESTCHESTER COUNTY CLERK 10/11/2018 12:14 PM NYSCEF DOC. NO. 60 INDEX NO. 69813/2016 RECEIVED NYSCEF: 10/11/2018 Gonzalez v. Marini, Marini, Index Index No. 69813/2016 Gonzalez 69813/2016 Vehicle Law 1146(a) 1146(a) provides, provides, in pertinent pertinent part, that driver of of a Vehicle and Traffic Traffic Law that "every "every driver vehicle any bicyclist, vehicle shall shall exercise exercise due due care to avoid avoid colliding colliding with any bicyclist, pedestrian, pedestrian, or domestic animal animal upon upon any any roadway roadway and shall shall give give warning domestic warning by sounding sounding the the horn when when necessary". necessary". Although defendants demonstrated prima facie entitlement to judgment matter Although defendants demonstrated prima facie entitlement judgment as a matter of law on the issue issue of of liability liability (see Veh 1152[a]), plaintiff plaintiff raised triable issues of of of Veh & Tr Tr Law 1152[a]), triable issues fact were negligent whether such was the the fact as to whether whether the defendants defendants were negligent and whether such negligence negligence was proximate cause cause of the plaintiffs plaintiffs injuries injuries (see (see Veh & Tr Tr Law Law 1146[a]; 1146[a]; Sanclemente Sanclemente v MTA proximate Bus Co., 116 AD3d AD3d 688, 689 [2d Dept Dept 2014]; Billingy v 8/agrove, Blagrove, 84 AD3d Dept Bus 2014]; Billingy AD3d 848 [2d Dept 2011 ]). Accordingly, defendants' motion motion for summary judgment DENIED. Counsel Counsel for for summary judgment is DENIED. for all Accordingly, defendants' parties are directed directed to appear Settlement Conference parties appear in the Settlement Conference Part, room 1600, on November 20, 2018, at 9:15 a.m. November 20,2018, Dated: Dated: White Plains, New New York White Plains, York October 10, 2018 October 2018 ·. H: ALPHABETICAL ALPHABETICAL MASTER MASTER LIST LIST - WESTCHESTER/Gonzalez Marini WESTCHESTER/Gonzalez v. Marini 4 [* 4] 4 of 4 _J

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