Magee v Zeman

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Magee v Zeman 2019 NY Slip Op 34369(U) August 28, 2019 Supreme Court, Suffolk County Docket Number: Index No.625549/2018E Judge: William B. Rebolini 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. 625549/2018 [*FILED: 1] SUFFOLK COUNTY CLERK 08/29/2019 03:04 PM NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 08/29/2019 Short Form Order SUPREME COURT - ST ATE OF NEW YORK I.A.S. PART 7 - SUFFOLK COUNTY PRESENT: WILLIAM B. REBOLINI Justice Dennis Magee, Plaintiff, Motion Sequence No.: 001; MG Motion Date: 6/14/19 Submitted: 619/19 Index No.: 625549/2018E -against- Attorney for Plaintiff: Joanne Zeman, Defendant. Rosenberg & Gluck, LLP 1176 Portion Road Holtsville, NY 11742 Attorney for Defendant: Russo & Tambasco 115 Broad Hollow Road, Suite 300 Melville, NY 11747 Clerk of the Court Upon the E-file document list numbered 8 to 17 read on plaintiffs motion for an order pursuant to CPLR 3212 granting summary judgment against defendant on the issue of liability and striking defendant's affirmative defense of comparative negligence; it is ORDERED that plaintiffs motion for summary judgment on the issue ofliability is granted and defendant's affirmative defense of comparative negligence is stricken. Plaintiff Dennis Magee commenced this action by the filing of summons and complaint on December 31, 2018 to recover damages for personal injuries he allegedly sustained in a motor vehicle accident that occurred on May 24, 2017 at approximately 5:15 p.m., near the intersection of College Road and Palm Street in Suffolk County, New York. Issue was joined on January 17, 2019. Plaintiff now moves for summary judgment on the issue of liability and to strike defendant's affirmative defense of comparative negligence. In support ofhis motion, plaintiff submits an attorney 1 of 5 INDEX NO. 625549/2018 [*FILED: 2] SUFFOLK COUNTY CLERK 08/29/2019 03:04 PM NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 08/29/2019 , Ma,:ee v. Zehman · Index No.: 625549/2018 Page2 affinnati~n, a sworn affidavit, a copy of the pleadings, and the certified police accident report. By way of his sworn affidavit, plaintiff alleges that while he was traveling southbound on College Road within the posted speed limit, and after he entered the intersection with Palm Street, defendant Joanne Zeman, who was traveling northbound on College Road, suddenly and without warning crossed over both double yellow lines prior to reaching the intersection and traveled directly into the path of plaintiffs vehicle, striking it head-on. Plaintiff further alleges that he attempted to avoid the collision by applying his brakes, however, he only had a moment to react and was unable to avoid the accident. According to the certified police report, defendant advised that she was "going to make a left tum and started making the tum too soon, crossing into oncoming traffic." Plaintiff argues that defendant violated sections I 141, 1163, and 1120 of the Vehicle and Traffic Law and that these violations and her failure to keep a proper lookout and observe what she should have seen with proper use of her senses were the proximate cause of the collision. Defendant opposes the motion claiming summary judgment is premature as there has been no discovery, that the police report is inadmissible hearsay, and that plaintiff has failed to show that he acted reasonably under the circumstances. Plaintiff replies. Summary judgment is a drastic remedy and should only be granted in the absence of any triable issues of fact (see Rotuba Extruders,Inc. v. Ceppos, 46 NY2d 223, 413 NYS2d I 41 [ 1978]; Andre v Pomeroy, 35 NY2d 361,362 NYS2d 131 (1974]). The proponent ofa summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320,508 NYS2d 923 (1986]; Winegradv. New York Univ. Med. Ctr., 64 NY2d 851, 487NYS2d 316 (1985]). The burden then shifts to the party opposing the motion who must produce evidentiary proof in admissible form sufficient to require a trial of the material issues of fact (Roth v. Barreto, 289 AD2d 557,735 NYS2d 197 [2d Dept 2001]; Rebecchi v. Whitmore, 172 AD2d·600, 568 NYS2d 423 (2d Dept 1991]; O'Neillv. Town ofFishkill, 134 AD2d487, 521 NYS2d272 [2dDept 1987]). To defeat a motion for summary judgment, a party opposing such motion must lay bare his proof in evidentiary form; conclusory allegations are insufficient to raise a triable issue of fact (see Friends ofAnimals, Inc. v. Associated Fur Mfrs., 46 NY2d I 065, 416 NYS2d 790; Burns v. City of Poughkeepsie, 293 AD2d 435, 739 NYS2d 458 (2d Dept 2002]). It is well settled that an affirmation of an attorney who lacks personal knowledge of the facts has no probative value (see Cullin v. Spiess, 122 AD3d 792, 997 NYS 2d 460 [2d Dept 2014]) and all competent evidence must be viewed in a light most favorable to the party opposing summary judgment (Benincasa v Garrubbo, 141 AD2d 636, 637, 529 NYS2d 797,799 (2d Dept 1988]). A motion for summary judgment should be denied where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility (see Chimbo v. Bolivar, supra; Benetatos v. Cometford, 78 AD3d 730, 91 I NYS2d 155 [2d Dept. 2010]). Vehicle and Traffic Law § 1141 requires that "[t]he driver of a vehicle intending to turn to the left within an intersection or into an alley, private road, or driveway shall yield the right of way to any vehicle approaching from the opposite direction which is within the intersection or so close as to constitute an immediate hazard." A driver with the right of way is entitled to anticipate that other motorists will obey traffic laws that require them to yield the right of way (see Lebron v. 2 of 5 INDEX NO. 625549/2018 [*FILED: 3] SUFFOLK COUNTY CLERK 08/29/2019 03:04 PM NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 08/29/2019 Magee v. Zeh man Index No.: 625549/2018 Page3 Mensah, 161 AD3d 972, 76NYS3d219 [2dDept. 2018];Bullockv. Calabretta, 119 AD3d 884 [2d Dept 2014]; Kucar v. Town oj Huntington, 81 AD3d 784,917 NYS2d 646 [2d Dept 2011]; Todd v Godek, 71 AD3d 872 [2d Dept 2010] Kann v. Maggies Paratransit Corp., 63 AD3d 792, 882 NYS2d 129 [2d Dept 2009]; Berner v. Koegel, 31 AD3d 591, 819 NYS2d 89 [2d Dept 2006]; Gabler v. Marly Bldg. Supply Corp., 27 AD3d 519,813 NYS2d 120 [2d Dept 2006]). A driver is not required to anticipate that an automobile going in the opposite direction will cross over [a double yellow line] into oncoming traffic" (Barbaruolo v. Difede, 73 AD3d 957,900 NYS2d 671 [2d Dept. 2010]). Vehicle and Traffic Law §1163 provides, in pertinent part, that "no person shall turn a vehicle at an intersection unless the vehicle is in proper position ... or tum a vehicle from a direct course or move right of left upon a roadway unless and until such movement can be made with reasonable safety." Further, the general rule under Vehicle and Traffic Law§ 1120 is that a "vehicle shall be driven upon the right half of the roadway," with limited exceptions not applicable herein. A violation of a standard of care imposed by the Vehicle and Traffic Law constitutes negligence per se (Lebron v. Mensah, 161 AD3d 972; 76 NYS3d 219 [2d Dept. 2018]; Barbaruolo v. Difede, 73 AD3d 957,900 NYS2d 671 [2d Dept. 2010]; Ciatto v. Lieberman, 266 AD2d 494,698 NYS2d 54 [2d Dept. 1999]; see also Barbieriv. Vokoun, 72 AD3d 853,856,900 NYS2d 315 [2d Dept. 2010]; Smith v. State oj New York, 121 AD3d 1358, 1358-59, 955 NYS2d 329 [3d Dept. 2014]. Further, a driver is negligent when an accident occurs because the driver failed to see that which through proper use of the driver's senses he or she should have seen (see Laino v Lucchese, 35 AD3d 672, 827 NYS2D 249 [2d Dept 2006]; Berner v. Koegel, 31 AD3d 591,819 NYS2d 89 [2d Dept 2006]; Bongiovi v. Hoffman, 18 AD3d 686, 795 NYS2d 354 [2d Dept 2005]). However, "a driver who has the right-of-way has a duty to exercise reasonable care to avoid a collision with another vehicle" (Gause v. Martinez, 91 AD3d 595, 936 NYS2d 272 [2d Dept. 2012] quoting Todd v. Godek, 71 AD3d 872,895 NYS2d 861 [2d Dept. 2010]; Bonilla v. Calabria, 80 AD3d 720 [2dDept 2011]; Gardner v. Smith, 63 AD3d 783 [2d Dept 2009]; Cox v Nunez, 23 AD3d 427 [2d Dept 2005]). There can be more than one proximate cause of an accident and the issue of comparative negligence is generally a question of fact for the jury to decide (see Bullock v. Calabretta, 119 AD3d 884, 989 NYS2d 862 [2d Dept. 2014]; Bonilla v. Calabria, SQ AD3d 720 [2d Dept 2011]; Todd v. Godek, 71 AD3d 872, 895 NYS2d 861 [2d Dept. 2010]). The fact that a party violated the Vehicle and Traffic Law would not preclude a finding that comparative negligence by another party contributed to the accident (see Gardner v. Smith, 63 AD3d 783 [2d Dept 2009]; Cox v. Nunez. 23 AD3d 427 [2d Dept 2005]). However, a plaintiff need not_prov6 that he or she was free from comparative fault in order to establish his or her prima facie entitlement to summary judgment (see Rodriguez v. City ofNew York, 31 NY3d 312, 2018 NY Slip Op 0228_7 [2018]; Edgerton v. City ofNew York, 160 AD3d 809, 74 NYS3d 617 [2d Dept 2018]). Generally, an uncertified MV-104 police accident report constitutes hearsay and is inadmissible, unless it is subject to an exception to the hearsay rule (see Siemucha v. Garrison, 111 AD3d 1398, 1399, 975 NYS2d 518 [4th Dept. 2013]; see also Lacagnino v. Gonzalez, 306 AD2d 250, 760 NYS2d 533 [2d Dept. 2003]; Hegy v. Coller, 262 AD2d 606, 692 NYS2d 463 [2d Dept. 1999]). Here, however, the police accident report is certified, and the statement by defendant that she was "going to make a left tum and started making the tum too soon, crossing into oncoming traffic" is admissible under the admission against interest exception to the hearsay rule (see Lebron 3 of 5 INDEX NO. 625549/2018 [*FILED: 4] SUFFOLK COUNTY CLERK 08/29/2019 03:04 PM NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 08/29/2019 Magee v. Zehman Index No.: 625549/2018 Page4 v. Mensah, 161 AD3d 972, 76NYS3d 219 [2d Dept. 2018); Jackson v. Trust, 103 AD2d 851,852, 962 NYS2d 267 (2dDept. 2013];Scottv. Kass, 48 AD3d 785,851 NYS2d 649 (2d Dept. 2008); Wu v. Continental Truck body Corp., 2019NY Slip Op. 30571, 2019 WL 1093458 (Sup. Ct. NY Cty. 2019)). This admission, as well, supports the facts as presented by plaintiff (see Rosenblatt v. Venizelos, 49 AD3d 519, 853 NYS2d 578 [2d Dept. 2008); see also Lariviere v. New York City Transit Autlwrity,82 AD3d 1165, 920 NYS2d 231 (2d Dept. 201 !)). Here, plaintiff demonstrates his prima facie entitlement to judgment as a matter oflaw on the issue of liability by establishing that defendant violated Vehicle and Traffic Law sections 114 I, I 163, and 1120, in that while plaintiff was traveling southbound on College Road, defendant, who was traveling northbound on College Road, crossed over both double yellow lines prior to reaching the intersection of Palm Street and traveled directly into the path of plaintiffs vehicle, at a time when it was not reasonably safe to do so, colliding head-on with plaintiffs vehicle, and that defendant's violations were the sole proximate cause of the accident (see, e.g., Kero/le v. Nicholson, 172 AD3d I I 87, IOI NYS3d 387 [2d Dept. 2019); Yu Mei Liu v. Weihong Liu, 163 AD3d 611, 81 NYS3d 75 [2d Dept. 2018); Lebron v. Mensah, 161 AD3d 972, 76NYS3d 219 [2d Dept. 2018); Ahearn v. Lanaia, 85 AD3d 696, 924 NYS2d 802 [2d Dept. 201 !); Heath v. Liberato, 82 AD3d 841,918 NYS2d 353 (2d Dept. 2011); Berner v. Koegel, 31 AD3d 591,819 NYS2d 89 [2d Dept 2006); Moreback v. Mesquita, 17 AD3d 420, 793 NYS2d 148 (2d Dept 2005); Foster v. Sanchez, 17 AD3d 312, 792 NYS2d 579 (2d Dept. 2005)). Having made the requisite prima facie showing of entitlement to summary judgment on the issue of liability, the burden shifted to defendant to rebut the presumption of negligence or raise a triable issue of fact (see Kerolle v. Niclwlson, 172 AD3d 1187, I 01 NYS3d 387 (2d Dept. 2019); Yu Mei Liu v. Weilwng Liu, 163 AD3d 611, 81 NYS3d 75 [2d Dept. 2018]; see also Bene v. Dalessio, 135 AD3d 679, 22 NYS3d 237 [2d Dept. 2016); Cortes v. Whelan, 83 AD3d 763, 922 NYS2d 419 (2d Dept. 2011]; Balducci v. Velasquez, 92 AD3d 626, 938 NYS2d I 78 [2d Dept. 2012)). Here, however, defendant only submits the affirmation of her attorney, who lacks personal knowledge of the facts, and thus, it has no probative value (see Lazarre v. Gragston, 164 AD3d 574, 81 NYS3d 541 [2dDept. 2018); Cullin v. Spiess, 122 AD3d 792, 997NYS 2d 460 [2d Dept2014)). Being that defendant has not opposed the facts alleged by plaintiff as to how the accident occurred, the facts as presented in plaintiffs moving papers may be deemed admitted by the Court (Kuehne & Nagel, Inc. v. Baiden, 36 NY2d 539,369 NYS2d 667 (1975); Madeline D'Antlwny Enter., Inc. v. Sokolowsky, 101 AD3d 606, 957 NYS2d 88 (1st Dept 2012); Argent Mtge. Co., LLC v. Mentesana, 79 AD3d 1079, 915 NYS2d 591 (2d Dept 2010)). Thus, defendant has not raised a triable issue of fact to rebut the presumption ofnegligence. Instead, defendant argues that the motion is premature and that she is entitled to discovery prior to consideration of plaintiffs motion for summary judgment. This argument, however, is unfounded, as defendant fails to adequately demonstrate how discovery might lead to relevant evidence or that facts essential to justify opposition to the motion are exclusively within the knowledge or co.ntrol ofplaintiff (see CPLR 3212 (f); Williams v. Spencer-Hall, 113 AD3d 759, 979 NYS2d 157 [2d Dept. 2014]; Cajas-Romero v. Ward, 106 AD3d 850, 965 NYS2d 559 [2d Dept. 2013); Romero v. Greve, 100 AD3d 617, 953NYS2d 296 [2d Dept. 2012)). Indeed, ."mere hope or speculation that evidence sufficient to 4 of 5 INDEX NO. 625549/2018 [*FILED: 5] SUFFOLK COUNTY CLERK 08/29/2019 03:04 PM NYSCEF DOC. NO. 18 RECEIVED NYSCEF: 08/29/2019 Magee v. Zehman Index No.: 625549/2018 Pages defeat a motion for summary judgment may be uncovered during the discovery process is insufficient to deny the motion" (Cajas-Romero v. Ward, supra, 106 AD3d at 852). Defendant provides no evidentiary basis for her claim that further discovery may reveal facts known only to plaintiff (see Lazarrev. Gragston, 164 AD3d574, 81 NYS3d 541 [2dDept. 2018]; YuMeiLiuv. WeihongLiu, 163 AD3d 611, 81 NYS3d 75 [2d Dept. 2018]). Indeed, defendant has personal knowledge of what occurred immediately prior to and during the time of the accident, and thus, defendant could have presented her version of the accident but declined to submit an affidavit to that effect. Under these circumstances, a denial of summary judgment as premature is unwarranted (see Kerolle v. Nicholson, 172 AD3d 1187, 101 NYS3d 387 [2d Dept. 2019]; Deleg v. Vinci, 82 AD3d 1146, 919 NYS2d 396 [2d Dept. 2011]; see also Williams v. Spencer-Hall, 113 AD3d 759,979 NYS2d 157 [2d Dept. 2014]; Cajas-Romero v. Ward, 106 AD3d 850, 965 NYS2d 559 [2d Dept. 2013]; Kimyagarov v. Nixon Taxi Corp., 45 AD3d 736, 846 NYS2d 309 [2d Dept. 2007]; Abramov v. Mira/ Corp., 24 AD3d 397, 398 [2d Dept. 2005]). Moreover, plaintiff is entitled to an order striking the defendant's affirmative defense of comparative negligence. It is well established that plaintiff is not required to show an absence of comparative fault to be entitled to summary judgment on the issue ofliability (Rodriguez v. City of New York, 31 NY3d 312, 76 NYS3d 898 [2018]; Harrinarain v. Sisters ofSt. Joseph, -NYS3d-, 173 AD3d 983 [2d Dept. 2019]). Here, however, plaintiff has the burden on a motion to dismiss to demonstrate that same is without merit (see Poon v. Nisanov, 162 AD3d 804, 808, 79 NYS3d 227 [2d Dept. 2018]). Inasmuch as plaintiff indicates he was unable to avoid the accident, and has otherwise demonstrated he was not at fault in the happening of the accident, and defendant has not offered any evidence in admissible form to raise a triable issue of fact in that regard, the affirmative defense of comparative negligence is stricken (Id.). The Court has considered the remaining contentions of defendant on the issue ofliability and finds them to be without merit. Thus, the Court concludes that based upon the admissible evidence presented by plaintiff, which have not been refuted by any admissible evidence from defendant, the negligence of defendant was the proximate cause of the accident. Accordingly, the motion by plaintiff for summary judgment against defendant on the issue of liability is granted and defendant's affirmative defense of comparative negligence is stricken. Dated: «/ii,,,~ , HON. WILLIAM B. REBOLINI, J.S.C. FINAL DISPOSITION,_ __,X,__ NON-FINAL DISPOSITION 5 of 5

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