Marine v Defeo

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Marine v Defeo 2019 NY Slip Op 34345(U) February 11, 2019 Supreme Court, Suffolk County Docket Number: Index No. 604877/2017 Judge: George Nolan 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. 604877/2017 I [*FILED: 1] SUFFOLK COUNTY CLERK 02/11/2019 03:36 PM NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 02/11/2019 I I Index No. 604877/2017 Short Form Order SUPREME COURT - STATE OF NEW YORK I.A.S. PART 55 - COUNTY OF SUFFOLK I I \ I I PRESENT: Hon. George Nolan Justice Supreme Court DECISION AND ORDER Mot. Seq. No. #001 - Case Disp -MG Orig. Return Date: 1/23/2019 Mot. Submit Date: 1/31/2019 X -------------ANABEL MARINE, Plaintiff, PLAINTIFF'S ATTORNEY Bryan Patrick Kujawski, Esq .. Kujawski & Kujawski 1637 Deer Park Avenue Deer Park, NY 11729 -againstDENISE DEFEO AND CHRISTIAN DEFEO Defendants. DEFENDANT'S ATTORNEY Melissa Anne Marano, Esq. The Law Offices of Russo, Apoznanski & Tambasco 875 Merrick Avenue Westbury, NY 11590 - - - - - - - - - - - - - - -X Upon thee-filed documents numbered 9 through 21, it is determined as follows: Plaintiff Anabel Marine commenced this action to recover damages for personal injuries allegedly sustained in a motor vehicle accident that occurred on North Wellwood Avenue at or 1;1ear its intersection with Straight Path in Lindenhurst, New York on December 2, 2016. The collision occurred between a vehicle driven by defendant Christian DeF eo and owned by Denise DeF eo and a vehicle operated by plaintiff Anabel Marine. The defendants Denise DeF eo and Christian DeF eo now move for an order granting summary judgment dismissing the complaint on the ground that the collision occurred because of plaintiff's failure to yield the right of way. In support of the motion, the defendants submit, among other things, copies of the pleadings and transcripts of the parties' deposition testimony. Plaintiff opposes the motion, arguing that a triable issue of 1 of 4 I I [*FILED: 2] SUFFOLK COUNTY CLERK 02/11/2019 03:36 PM NYSCEF DOC. NO. 22 INDEX NO. 604877/2017 RECEIVED NYSCEF: 02/11/2019 Marine v DeF eo Index No. 604877/2017 Mot Seq. #001 - Case Dis p MG fact exists as to whether defendant Christian De feo failed to act rea sonably under the circumstances. Defendant Christian De feo testifi ed at his examination before trial that he was driving his vehicle in the left sou thbound lane of Wellwood Avenu e, traveling at approximately thirty miles per hou r, when he saw the pla int iff' s veh icle exiting a gasoline service station on the right side of the road; that one or two car length s separated the two vehicles when the pla int iff' s veh icle entered his lane of travel; tha t he applied his brakes and turned his steering wheel to the left to avoid a collision; that the front bumper of the plaintiff's vehicle impacted the pas senger side of his vehicle. At her examination before trial, pla int iff Anabel Marine testified tha t prior to the collision she was stopped at a ser vice station on Wellwood Avenu e to get gas; that she drove to the service station exit int ending to tum right onto Wellwood Avenue; that she came to a stop before entering We llwood Avenue and saw no traffic to the left. However, the pla int iff could not remember anything that occurred from the mo ment she began to exit the gas station until the mome nt of impact. On a motion for summary jud gm ent the movant bears the initial bur den and must tender evidence sufficient to elim inate all material issues of fact (W inegrad v New York Univ. Med. Ctr., 64 NY 2d 85 1,4 87 NYS2d 316 [1985]). Once the movant meets this burden, the burden then shifts to the opposing partys to demonstra te that there are material issues of fact; mere con clusions and unsubstantiated alle gations are insufficient to raise any triable issues of fact (see Zuckerman v City of New Yo rk, 49 NY 2d 55 7,4 27 NYS2d 595 [1980]; Perez v Grace Episcopal Church, 6 AD 3d 596, 774 NY S2 d 785 [2004]). As the cou rt's function on such a motion is to determine whether issues of fact exist, not to resolve issues of fac t or to determine matters of credib ility; the facts alleged by the opposing party and all inf erences that may be drawn are to be accepted as true (see Roth v Barreto, 289 AD 2d 557, 735 NYS2d 197 [2d Dept 2001]; O'N eill v Fishkill, 134 AD2d 487, 521 NY S2 d 272 [2d Dept 1987]). The defendants established their prima facie entitlement to summa ry judgment as a matter of law by presenting undisp uted evidence that pla int iff' s veh icle ent ered the roadway from a gasoline service station, and that it failed to yield the right of way to the defendant's approaching vehicle in violation of Vehicle and Traffic La w§ 1143. Vehicle and Traffic La w § 1143 provides that the "driver of a veh icle about to 2 of 4 [*FILED: 3] SUFFOLK COUNTY CLERK 02/11/2019 03:36 PM NYSCEF DOC. NO. 22 INDEX NO. 604877/2017 l_ RECEIVED NYSCEF: 02/11/2019 Marine v DeFeo Index No. 604877/2017 Mot Seq. #001 - Case Disp MG enter or cross a roadway from any place other than a roadway shall yield the right of way to all vehicles approaching on the roadway to be entered or crossed." A violation of the Vehicle and Traffic Law constitutes negligence as a matter of law (see Vainer v. Disalvo, 79 AD3d 1023, 914 NYS2d 236 [2d Dept 2010]). Further, "the driver with the right-ofway is entitled to anticipate that the other motorist will obey traffic laws which require him or her to yield" (see, Williams v. Hayes, 103 AD3d 713, 959 NYS2d 713 [2d Dept 2013]; Figueroa v. Diaz, 107 AD3d 754, 967 NYS2d 109 [2d Dept 2013]). While there can be more than one proximate cause of an accident, the plaintiff has failed to raise a triable issue of fact as to the defendant's comparative negligence. Plaintiff Anabel Marine did not see the defendant's vehicle at any time prior to the accident and she recalled nothing after she began to exit the service station. Plaintiffs claim that the defendant was traveling at an unsafe rate of speed is mere speculation and insufficient to defeat summary judgment (see, Colandrea v. Chuku, 94 AD3d 1034, 943 NYS2d 166 [2d Dept 2012]). Accordingly, the motion by defendants for summary judgment dismissing the complaint against them is GRANTED. ENTER Dated: February 11, 2019 Riverhead, New York OLAN, J.S.C. l I ~ Il 1' 3 of 4 l [*FILED: 4] SUFFOLK COUNTY CLERK 02/11/2019 03:36 PM NYSCEF DOC. NO. 22 INDEX NO. 604877/2017 RECEIVED NYSCEF: 02/11/2019 Marine v DeF eo Index No. 604877/2017 Mot Seq. #001 - Case Disp MG NON-FINAL DISPOSITION _lLFINAL DISPOSITION "~-,..,:~):~~ . \i.~ ',,~.';! 4 of 4

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