Alcantara-Pena v Shanahan

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[*1] Alcantara-Pena v Shanahan 2018 NY Slip Op 51888(U) Decided on December 19, 2018 Supreme Court, Bronx County Higgitt, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 19, 2018
Supreme Court, Bronx County

Cinthia Alcantara-Pena, Plaintiff,

against

Christine Shanahan, THE CITY OF NEW YORK and WELSBACH ELECTRIC CORP., Defendants.



302075/2012



Brian C. Mardon, Esq., Spiegel & Barbato, LLP, Bronx, NY, for plaintiff

Amy M. Kramer, Esq., London Fischer LLP, New York, NY, for defendants the City of New York and Welsbach Electric Corp.

Naomi Giaccone, Esq., Law of Dennis C. Bartling, Westbury, NY, for defendant Shanahan
John R. Higgitt, J.

In this action to recover damages for personal injuries plaintiff allegedly sustained as a result of a two-car collision that occurred in a Bronx intersection, defendants City of New York and Welsbach Electric Corp. ("the moving defendants") seek summary judgment dismissing the complaint as against them and defendant Shanahan's cross claims on the ground that any negligence on the moving defendants' part was not a proximate cause of the accident.[FN1] For the [*2]reasons that follow, the moving defendants' motion is granted.

The accident giving rise to this litigation occurred at the intersection of Boston Road and Williamsbridge Road in the Bronx. In the area of the intersection, Boston Road has four traffic lanes, two going in each direction; Williamsbridge Road has two traffic lanes, one going in each direction. The intersection was controlled by a four-way-facing traffic signal. The traffic signal was owned by the City and maintained by Welsbach pursuant to a contract between the moving defendants.

On the morning of February 9, 2011 the traffic signal was not functioning because of a power outage; no electricity was running from non-party Consolidated Edison's equipment to the traffic signal.

According to plaintiff's deposition testimony, at approximately 8:00 am on that date she was operating her motor vehicle on Boston Road on her way to work. Although plaintiff was not familiar with the intersection of Boston Road and Williamsbridge Road, she described the approach of Boston Road into the intersection as straight. Plaintiff gave inconsistent testimony as to when she first saw the non-functioning traffic signal; at one point she testified that she saw it from approximately one block away from the intersection, and at another point she testified that she was one to two car lengths away from the intersection when she saw it. Traffic on Boston Road near the intersection was light; plaintiff testified that "[t]here w[ere] not a lot of cars" (moving papers, ex. H, at 18).

When she arrived at the intersection, plaintiff, who was travelling in the left lane and intending to proceed straight on Boston Road through the intersection, brought her vehicle to a complete stop. She testified that she stopped because the traffic signal was "out." "I stopped when I got to the intersection. I treat[ed] the light as a stop sign," plaintiff stated (id. at 24). Plaintiff, who had an unobstructed view down Williamsbridge Road, checked to her left and right for oncoming traffic on Williamsbridge Road and, seeing none, she slowly proceeded into the intersection. While plaintiff was in the intersection, the front bumper of defendant Shanahan's vehicle, which was travelling on Williamsbridge Road, struck the rear portion of the passenger's side of plaintiff's vehicle. Plaintiff characterized the impact as "big" (id. at 27), and testified that her vehicle went in "circles" as a result of the collision before coming to rest on the segment of Boston Road on the other side of the intersection. Plaintiff first saw defendant Shanahan's vehicle as the collision was occurring.

Defendant Shanahan testified at deposition that, on the morning of February 9, 2011, she was operating her motor vehicle on Williamsbridge Road on her way to work. The roadway was dry and there was daylight. As she was approaching the intersection, defendant Shanahan could see the traffic signal from approximately one block away and appreciated that it was not functioning properly. Traffic on Williamsbridge Road near the intersection was light to medium.



Defendant Shanahan testified that, before attempting to proceed straight on Williamsbridge Road through the intersection, she stopped her vehicle at the intersection for approximately one minute "where [she] would stop at a red light" (moving papers, ex. G, at 16). During that time, defendant Shanahan checked for oncoming traffic several times, observing multiple vehicles on Boston Road pass through the intersection. When she looked to her left she could see [*3]approximately a half to three quarters of a block down Boston Road; a slight grade or angle in Boston Road prevented her from seeing further down the street. After bringing her vehicle to a stop for approximately one minute, defendant Shanahan "inched up" toward the intersection while watching out for oncoming traffic. She brought her vehicle to a stop again, this time for a matter of seconds. After looking to her left and right down Boston Road and seeing no traffic and being signaled by a driver to her right on Boston Road to proceed into the intersection, defendant Shanahan did so. After she traveled less than one car length into the intersection at three to five miles per hour of speed, a collision occurred between the front driver's side of defendant Shanahan's vehicle and the front passenger's side of plaintiff's vehicle. Defendant Shanahan characterized the impact as "heavy" (id. at 27). She did not see plaintiff's vehicle prior to the impact.

Plaintiff commenced this action against defendants to recover damages for the injuries she allegedly sustained as a result of the accident. Plaintiff claimed that defendant Shanahan negligently operated her motor vehicle, and that the moving defendants failed to maintain the intersection in a reasonably safe condition.

The moving defendants seek summary judgment dismissing the complaint as against them and defendant Shanahan's cross claims. They argue that, as a matter of law, any negligence on their part was not a proximate cause of the accident; the moving defendants do not raise any other grounds in support of their motion.

The moving defendants contend that the decisions and conduct of plaintiff and defendant Shanahan — not any negligence on the moving defendants' part in maintaining or securing the intersection — proximately caused the accident. The moving defendants' proximate-cause argument consists of the following syllogism: plaintiff and defendant Shanahan were aware that the traffic signal was not functioning, and neither of the drivers relied on the non-functioning traffic signal; plaintiff and defendant Shanahan treated the non-functioning traffic signal as a stop sign, but one or both of the drivers failed to see what was there to be seen and failed to yield to traffic approaching the intersection; and, therefore, the drivers' respective actions were the proximate causes of the accident (see movants' memo. of law, at 3). Also, the moving defendants stress that they did not cause the power outage that prevented the traffic signal from functioning.

In support of their motion, the moving defendants submit, among other things, the deposition testimony of plaintiff and defendant Shanahan, and excerpts of the deposition testimony of three individuals who were familiar with the traffic signal's maintenance protocols. In opposition to the motion,[FN2] plaintiff asserts that the moving defendants failed to exercise reasonable care to secure the intersection until power could be restored to the traffic signal and that such negligence was a proximate cause of the accident. [FN3] Additionally, plaintiff asserts that the moving [*4]defendants' negligence created a hazardous intersection and that a foreseeable result of that hazard was a motor vehicle accident. Plaintiff contends that triable issues of fact exist as to whether the moving defendants' alleged negligence was a proximate cause of the accident. Plaintiff argues that triable issues of fact exist as to whether defendant Shanahan did in fact stop when she reached the intersection, and whether her view down Boston Road was obstructed because of the grade of that road.

In support of her opposition, plaintiff submits an affidavit. The affidavit mainly repeats material aspects of her deposition testimony; however, in the affidavit she adds that defendant Shanahan "did not stop at the intersection at all but drove straight into the rear side of my car. I know this because I was able to see there was no stopped car on Williamsbridge as I was passing over the Williamsbridge travel lane as I proceeded through the intersection and because of the heaviness of the impact" (plaintiff's opp., ex. A, at ¶ 3). Additionally, plaintiff submits the complete deposition testimony of the aforementioned individuals who were familiar with the traffic signal's maintenance protocols, and the deposition testimony of the police officer who responded to the accident.

Lastly, plaintiff submits the affidavit of an engineer who conducted an analysis of the intersection. The engineer avers that plaintiff entered the intersection before defendant Shanahan, and that the latter entered the intersection without coming to a full stop. The engineer also avers that Welsbach failed to comply with provisions of the Manual of Uniform Traffic Control Devices (MUTCD) and regulations of the federal Occupational Health and Safety Administration (OHSA) because Welsbach did not provide flaggers to control traffic in the intersection during the power outage, and Welsbach did not provide sufficient signage relating to the non-functioning traffic signal. The engineer causally related Welsbach's alleged negligence to the accident.

"Evidence of negligence [i.e., the breach of a duty owed to another,] is not enough by itself to establish liability" against a defendant (Sheenhan v City of New York, 40 NY2d at 501). A plaintiff must prove "that the negligence was a proximate, or legal, cause of the event that produced the harm sustained by the plaintiff" (Hain v Jamison, 28 NY3d at 528). "[A] defendant's negligence qualifies as a proximate cause where it is a substantial cause of the events which produced the [plaintiff's] injury" (id. at 528-529). There may be more than one proximate cause of an event (Turturro v City of New York, 28 NY3d at 483). The concept of proximate cause is rooted in public policy considerations that serve to place manageable limits on liability flowing from negligent conduct (Derdiarian v Felix Contracting Corp., 51 NY2d 308, 314 [1980]; see Hain v Jamison, 28 NY3d at 528; Mack v Altmans Stage Lighting Co., Inc., 98 AD2d 468, 470 [2d Dept 1984]; Pagan v Goldberger, 51 AD2d 508, 509 [2d Dept 1976]).

A malfunctioning traffic signal may constitute a proximate cause of a motor vehicle accident (Davilmar v City of New York, 7 AD3d 559, 560 [2d Dept 2004]). Where, however, a "plaintiff driver was fully aware of [a] malfunctioning traffic light and the consequent need to exercise caution in proceeding through [an] intersection, any negligence on the part of the [*5][defendants] in maintaining the traffic light was not [a] proximate cause of [the intersection] accident" (Minemar v Khramova, 29 AD3d 750, 751 [2d Dept 2006]; see Rubinfeld v City of New York, 263 AD2d 448, 450 [2d Dept 1999] [any negligence on municipality's part in not properly maintaining "walk/don't walk" signal was not proximate cause of pedestrian-knockdown accident; plaintiff pedestrian was aware that signal was not functioning, she observed still-operational traffic control signal and she looked both ways down street before attempting to cross street]).[FN4] Thus, if a plaintiff driver confronting an intersection with a malfunctioning traffic signal is fully aware of the malfunctioning signal (and the need to exercise due caution) and was not confused by the malfunctioning signal, the malfunctioning signal is not a proximate cause of an accident occurring in the intersection (see Bisceglia v International Business Machines, 287 AD2d 674, 676 [2d Dept 2001]; see also Gomez v Santiago, 135 AD3d 666 [1st Dept 2016]).

The court follows the Second Department precedents Minemar, Bisceglia and Rubinfeld because they are "on point" with the issue confronting the court, and no contrary First Department or Court of Appeals decision has been brought to the court's attention (see Mountain View Coach Lines, Inc. v Storms, 102 AD2d 663, 664-665 [2d Dept 1984]; see also People v Turner, 5 NY3d 476, 482 [2005]). Notably too, in Gomez v Santiago (supra) the First Department cited Minemar (supra) and Bisceglia (supra) with approval.

As the parties seeking summary judgment, the moving defendants have the initial burden of making a prima facie showing that their alleged negligence was not a proximate cause of the accident. In the event that the moving defendants make that prima facie showing, the burden shifts to plaintiff to raise a triable issue of fact on the issue of causation.

The moving defendants made a prima facie showing that their alleged negligence was not a proximate cause of the accident. The moving defendants' evidence — particularly the deposition testimony of plaintiff and defendant Shanahan — established that both plaintiff and defendant Shanahan were fully aware of the non-functioning traffic signal. Additionally, the moving defendants' evidence established that neither plaintiff nor defendant Shanahan was confused by the non-functioning traffic signal. For her part, plaintiff seems to have followed the relevant provision of the Vehicle and Traffic Law, section 1117, which provides, in pertinent part, that "every operator of a motor vehicle approaching an intersection governed by a traffic control signal which is out of service or otherwise malfunctioning shall stop in the manner required for stop signs and proceed according to the rules of right of way for vehicles." Nothing in defendant Shanahan's deposition testimony indicates that she labored under any confusion as a result of the non-functioning traffic signal. She testified clearly that she could see the traffic signal from approximately one block away and appreciated that it was not functioning [*6]properly.

Viewing the evidence in the light most favorable to plaintiff as the non-moving party and, therefore, assuming for the purposes of determining this motion that defendant Shanahan did not stop before entering the intersection and entered the intersection at an unreasonable rate of speed, plaintiff failed to raise a triable issue of fact as to whether the alleged negligence of the moving defendants was a proximate cause of the accident. Whether defendant Shanahan failed to stop before entering the intersection, was travelling at an unreasonable rate of speed, or both, is not relevant to the moving defendants' liability. Under Minemar and Bisceglia, the pertinent questions are (1) whether the drivers were fully aware of the non-functioning signal (cf. Achaibar v City of New York, 45 Misc 3d 1036 [Sup Ct, Queens County 2014] [triable issue of fact as to plaintiff's awareness of malfunctioning traffic signal]; Kohn v City of New York, 19 Misc 3d 1140[A], supra [triable issue of fact as to whether drivers were aware of malfunctioning traffic signal]), and (2) whether either or both of the drivers was confused by the non-functioning signal. Plaintiff's evidence does not raise a triable issue of fact on either point.

Accordingly, it is hereby ordered that the motion of defendants the City of New York and Welsbach Electric Corp. is granted, and the complaint as against those defendants and defendant Shanahan's cross claims are dismissed. The clerk is directed to enter judgment dismissing the complaint as against those defendants and defendant Shanahan's cross claims.

This constitutes the decision and order of the court.



Date: December 19, 2018

Bronx, NY

_________________________

Acting Supreme Court Justice

Hon. John R. Higgitt Footnotes

Footnote 1: The substantial case law regarding proximate cause is not consistent on the subject of whether a defendant's negligence must be a proximate cause of an accident (or other harm-producing event), a plaintiff's injuries, or both (see, e.g., Brown v State of New York, 31 NY3d 514, 520 [2018] [indicating that alleged negligence must be a proximate cause of the accident]; Hain v Jamison, 28 NY3d 524, 528 [2016] [referring to causal link between defendant's alleged negligence and event that produced plaintiff's harm, and causal link between defendant's alleged negligence and plaintiff's injuries]; Turturro v City of New York, 28 NY3d 469, 485-486 [2016] [referring to causal link between defendant's alleged negligence and event that produced plaintiff's harm, and causal link between defendant's alleged negligence and plaintiff's injuries]; Mazella v Beals, 27 NY3d 694, 705-706 [2016] [referring to causal link between defendant's alleged negligence and event that produced plaintiff's harm, and causal link between defendant's alleged negligence and plaintiff's injuries]; Oakes v Patel, 20 NY3d 633, 647 [2013] ["It is often true that causation issues are relevant both to liability and to damages"]). On this motion, the parties have generally focused on whether a triable issue of fact exists regarding whether the moving defendants' alleged negligence was a proximate cause of the accident, and the court therefore has adjudicated the motion on the assumption that the causal connection must be between the moving defendants' alleged negligence and the accident.

Footnote 2:The court acknowledges the moving defendants' argument that the court should not consider plaintiff's opposition because it was not served timely. Indeed, plaintiff's opposition appears to have been served approximately one month after it was due. However, the court will consider the untimely opposition because the delay did not prejudice the moving defendants (see CPLR 2004). A substantial reply was submitted by the moving defendants and the parties participated in oral argument of the motion on September 13, 2018.

Footnote 3:A significant portion of plaintiff's opposition relates to the issue of whether the moving defendants breached the duty of care they owed to plaintiff. That issue, however, is not before the court on the moving defendants' motion. The court is focused here on whether a triable issue of fact exists regarding whether the moving defendants' alleged negligence was a proximate cause of the accident (see Sheehan v City of New York, 40 NY2d 496, 501 [1976] [negligence (i.e., duty and breach thereof) and proximate cause are conceptually different]).

Footnote 4:In Kohn v City of New York, 19 Misc 3d 1140(A) (Sup Ct, New York County 2008), affd 69 AD3d 463 (1st Dept 2010), the motion court stated that the alleged negligence of a defendant in failing to maintain a traffic signal will not be a proximate cause of a motor vehicle accident if both of the drivers involved in a two-vehicle accident were aware of a malfunctioning traffic signal. Here, the court need not and does not determine whether a plaintiff driver alone or both a plaintiff driver and a defendant driver must have been aware of the malfunctioning signal, because both plaintiff and defendant Shanahan were fully aware that the signal was not functioning.