Polidoro v Wheeler

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Polidoro v Wheeler 2019 NY Slip Op 34430(U) November 1, 2019 Supreme Court, Westchester County Docket Number: Index No. 63998/2018 Judge: Charles D. Wood 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: 1] WESTCHESTER COUNTY CLERK 11/04/2019 08:58 AM NYSCEF DOC. NO. 38 INDEX NO. 63998/2018 RECEIVED NYSCEF: 11/01/2019 commence the statutory statutory time time period appeals To commence period for appeals of right right (CPLR (CPLR 5513[a]), 5513[a]), you you are are advised advised to serve serve a copy copy as of of this this order, order, with with notice notice of of entry, entry, upon of upon all parties. parties. SUPREME COURT COURT OF OF THE THE STATE STATE OF OF NEW NEW YORK YORK SUPREME COUNTY OF OF WESTCHESTER WESTCHESTER COUNTY ---------------------------------------------------------------------x ----~----------------------------------------------------------------x MARGIE POLIDORO POLIDORO and and DOMINICK DOMINICK POLIDORO, POLIDORO, MARGIE Plaintiffs, Plaintiffs, -against-againstDECISION & ORDER ORDER DECISION Index No. 63998/2018 63998/2018 Index Sequence No.1 Sequence No. 1 BROOKE LEXI LEXI WHEELER WHEELER and and CHRISTOPHER CHRISTOPHER BROOKE WHEELER, WHEELER, Defendants. Defendants. ------------------------------------------------------------------------x ------------------------------------------------------------------------x BROOKE LEXI LEX! WHEELER WHEELER and and CHRISTOPHER CHRISTOPHER BROOKE WHEELER, WHEELER, Third Party Party Plaintiffs, Plaintiffs, Third -against-againstPAUL D. POLIDORO, POLIDORO, PAUL Third-Party Defendant. Defendant. Third-Party ______________________________________________________ -------------------x -------------------------------------------------------------------------x WOOD,J. WOOD,J. New York York State State Courts Courts Electronic Electronic Filing Filing (''NYSCEF") ("NYSCEF") Documents Documents Numbers Numbers 22-37 22-37 New connection with with Third Third Party Defendant Defendant Paul Paul D. Polidoro's Polidoro's motion motion for summary summary were read in connection judgment dismiss the Third Third Party Party Complaint. Complaint. judgment to dismiss action for serious serious personal injuries arising arising out out of of an automobile automobile accident accident that that This is an action personal injuries occurred on April April 20, 2017, 2017, at approximately approximately 8:05 P.M. According According to the complaint, complaint, Third Third occurred Defendant was driving, driving, plaintiffs were passengers, with the right right of of Party Defendant plaintiffs were passengers, and was proceeding proceeding with Eastbound Route Route 202 in Westchester Westchester County, County, when when defendants defendants' ' vehicle vehicle driven driven by 16 way on Eastbound 1 1 of 5 [*FILED: 2] WESTCHESTER COUNTY CLERK 11/04/2019 08:58 AM NYSCEF DOC. NO. 38 INDEX NO. 63998/2018 RECEIVED NYSCEF: 11/01/2019 \\ year old Brooke Brooke Lexi Wheeler Wheeler ("defendant"), ("defendant"), while while attempting attempting to make make a left turn, tum, failed failed to stO? sign, and struck Third Party Party Defendants' Defendants' vehicle. vehicle. yield to a sto, struck Third third party party complaint complaint was brought brought by defendants defendants for contribution contribution and indemnification indemnification A third against Third Third Party Party Defendant/driver. Defendant/driver. against Upon the foregoing foregoing papers, motion is decided decided as follows: follows: Upon papers, the motion proponent of of a summary motion must must make make a "prima "prima facie showing showing of of summary judgment judgment motion A proponent entitlement to judgment matter of of law, law, tendering tendering sufficient sufficient evidence evidence to demonstrate demonstrate the entitlement judgment as a matter absence of of t.11y c.l1Y material material issues issues of fact" (Alvarez (Alvarez v Prospect Prospect Hospital, Hospital, 68 NY2d 320, 324 of fact" NY2d 320, absence [1986];; Orange Orange County-Poughkeepsie County-Poughkeepsie Ltd. Partnership Partnership v Bonte, Bonte, 37 AD3d AD3d 684, 684, 686-687 686-687 (2d [2d (1986] Dept 2007]; 2007]; Rea Rea v Gallagher, Gallagher, 31 AD3d AD3d 731 (2d [2d Dept Dept 2007]). 2007]). Failure Failure to make make a prima Dept prima facie showing requires requires a denial denial of of the motion, motion, regardless regardless of of the sufficiency sufficiency of of the the motion motion papers papers showing (Wine grad v New York University University Medical Medical Center, Center, 64 NY2d 851,, 853 (1986]; [1986]; Jakabovics Jakabovics v (Winegrad New York NY2d 851 Rosenberg, 49 AD3d AD3d 695 (2d [2d Dept Dept 2008]; 2008]; Menzel Menzel v Plotkin, Plotkin, 202 AD2d AD2d 558, 558, 558-559 558-559 [2d Dept Dept Rosenberg. movant has met met this threshold threshold burden, burden, the opposing opposing party party must must present present the 1994]). Once the movant existence of of triable triable issues issues of of fact (Zuckerman York, 49 NY2d NY2d 557, 557, 562 (1980]; [1980]; Khan Khan v existence (Zuckerman v New New York, Nelson, AD3d 1062 (2d [2d Dept Dept 2009]). 2009]). In deciding deciding a motion motion for summary summary judgment, court Nelson, 68 AD3d judgment, the court "required to view view the evidence evidence presented presented in the light most most favorable favorable to the party party opposing opposing the is "required motion and to draw draw every every reasonable reasonable inference inference from the pleadings pleadings and the the proof proof submitted submitted by motion parties in favor of of the opponent motion" (Yelder (Yelder v. Walters, Walters, 64 AD3d AD3d 762, 762, 767 [2d the parties opponent to the motion" Dept 2009]; 2009]; Nicklas Nicklas v Tedlen Tedlen Realty Realty Corp., Corp., 305 AD2d AD2d 385, 385, 386 (2d [2d Dept Dept 2003]). 2003]). Summary Summary Dept judgment drastic remedy remedy and should should not be granted granted where where there there is any doubt doubt as to existence existence judgment is a drastic of a triable triable issue issue (Alvarez (Alvarez v Prospect Prospect Hospital, Hospital, 68 NY2d 320, 324 324 (1986]). [1986]). of NY2d 320, Vehicle and Traffic Traffic Law §1129(a) sI129(a) imposes imposes a duty on all drivers drivers to drive drive at a safe speed speed Vehicle 2 2 of 5 [*FILED: 3] WESTCHESTER COUNTY CLERK 11/04/2019 08:58 AM NYSCEF DOC. NO. 38 INDEX NO. 63998/2018 RECEIVED NYSCEF: 11/01/2019 1l maintain a safe distance distance between between vehicles, vehicles, always always compensating known adverse adverse and maintain compensating for any known conditions (Ortega (Ortega v City City of of New York, 721 NYS2d NYS2d 790 [2d Dept Dept 2000]). 2000]). Also, Also, pursuant road conditions New York, pursuant "the operator operator of of a vehicle vehicle intending intending to tum tum left within within an intersection intersection must must yield yield to VTL §S1141, 1141, "the right-of-way to any oncoming oncoming vehicle vehicle which which is within within the intersection intersection or so close close to it as to the right-of-way constitute an immediate immediate hazard. hazard. The The operator operator of of an oncoming oncoming vehicle vehicle with with the the right-of-way right-of-way is constitute entitled to assume assume that that the the opposing operator will yield yield in compliance compliance with with the Vehicle Vehicle and entitled opposing operator Traffic Law. Although Although a driver driver with with a right-of-way right-of-way also has a duty duty to use reasonable reasonable care to Traffic collision ... ...aa driver driver with with the right-of-way right-of-way who has only only seconds seconds to react react to a vehicle vehicle avoid a collision which has failed failed to yield yield is not comparatively comparatively negligent negligent for failing failing to avoid avoid the collision" collision" (Attl which (Attl Spetler, 137 AD3d AD3d 1176 [2d Dept Dept 2016]). 2016]). v Spetler, Third Party Party Defendant Defendant established established his prima prima facie entitlement entitlement to judgment Here, Third judgment as a matter of of law, that that the proximate proximate cause cause of of the accident accident was defendant's defendant's violation violation of of Vehicle Vehicle matter and Traffic Traffic Law Law §S1141, making a left tum tum when when it was was not reasonably reasonably safe safe to do so, directly directly 1141, in making path of of Third Third Party Party Defendant's Defendant's oncoming oncoming vehicle vehicle (Attl v Spetler, Spetler, 137 AD3d AD3d 1176, into the path 1176-77 [2d Dept Dept 2016]). 2016]). 1176-77 Further, Third Party Defendant Defendant established established that that defendant's defendant's vehicle vehicle entered entered an Further, Third Party intersection controlled controlled by a stop without yielding yielding the right-of-way right-of-way to his approaching approaching intersection stop sign without vehicle, regardless regardless of of whether whether defendant defendant initially initially stopped stopped at the stop stop sign sign (see VTL§ VTLS 1142[a]; 1142[a]; vehicle, Mohammad v Ning, AD3d 913, 914-15 914-15 [2d Dept Dept 2010]). 2010]). Also, Also, Third Third Party Party Defendant's Defendant's Mohammad Ning, 72 AD3d testimony that that he could could not maneuver maneuver his car forward forward or any where, where, due to the incremental incremental testimony slow traffic traffic to avoid avoid the accident, accident, thus having having insufficient insufficient time time to react react to defendant's defendant's failure failure to slow established that that he is not comparatively comparatively negligent negligent for failing failing to avoid the collision. collision. yield, established avoid the opposition, defendants defendants failed to raise a triable triable issue issue of of fact. Brooke Brooke Wheeler's Wheeler's In opposition, 3 3 of 5 [*FILED: 4] WESTCHESTER COUNTY CLERK 11/04/2019 08:58 AM NYSCEF DOC. NO. 38 INDEX NO. 63998/2018 RECEIVED NYSCEF: 11/01/2019 testimony that she did not see Third Third Party Defendants' Defendants' vehicle vehicle prior prior to the the accident, accident, even even testimony though the area area was well-lit, well-lit, because vehicle failed failed to have have its headlights headlights on, was though because plaintiffs' plaintiffs' vehicle purely speculative, speculative, as she had had no true recollection, recollection, which which does does not not preclude preclude summary summary purely judgment. judgment. NOW, therefore for the above above stated stated reasons, reasons, it is hereby hereby NOW, therefore ORDERED, that that Third Third Party Party Defendant's Defendant's motion motion for summary granted, the ORDERED, summary judgment judgment is granted, Third Party Complaint Complaint is dismissed, dismissed, and the Clerk Clerk is directed enter judgment accordingly; Third directed to enter judgment accordingly; further and it is further ORDERED, that that the the caption caption shall be amended amended to remove remove the the Third Third Party Party Action, Action, and ORDERED, shall now read: SUPREME COURT COURT OF OF THE STATE OF OF NEW NEW YORK YORK SUPREME THE STATE COUNTY OF OF WESTCHESTER WESTCHESTER COUNTY ---------------------------------------------------------------------x ---------------------------------------------------------------------x MARGIE POLIDORO POLIDORO and and DOMINICK DOMINICK POLIDORO, POLIDORO, MARGIE Plaintiffs, Plaintiffs, -against-againstIndex No. No. 63998/2018 63998/2018 Index BROOKE LEXI LEX! WHEELER WHEELER and CHRISTOPHER BROOKE and CHRISTOPHER WHEELER, WHEELER, Defendants. Defendants. ______________________________________________________ ------------------x ------------------------------------------------------------------------x further ; and it is further ORDERED, that that the parties directed to appear appear in the Settlement Conference Part Part ORDERED, parties are directed Settlement Conference on ~ b...r l OJ 0 J 2019 2019 at 9: 15 A.M. in Courtroom Courtroom 1600 1600 of of the the Westchester Westchester County County ~ ~ Courthouse, 111 III Dr. Martin Martin Luther Luther King King Jr. Blvd., Blvd., White White Plains, Plains, New York 10601. New York Courthouse, matters not herein herein decided decided are denied. denied. This This constitutes constitutes the Decision Decision and Order Order of of All matters 4 4 of 5 [*FILED: 5] WESTCHESTER COUNTY CLERK 11/04/2019 08:58 AM NYSCEF DOC. NO. 38 INDEX NO. 63998/2018 RECEIVED NYSCEF: 11/01/2019 the court. 2019 Dated: November November 1, 2019 White Plains, Plains, New York White New York •7 • HON. CHARLES CHARLES D. p yV00D HON. ooo Justice of the Supreme Court Justice Part~~s byNYSCEF by NYSCEF TO: All Parti~s 5 5 of 5 / Court

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