Alvarez v Suburban Propane Partners, L.P.
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Alvarez v Suburban Propane Partners, L.P. 2019 NY Slip Op 34444(U) July 23, 2019 Supreme Court, Westchester County Docket Number: Index No. 64935/2016 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: 1] WESTCHESTER COUNTY CLERK 07/23/2019 04:12 PM NYSCEF DOC. NO. 50 INDEX NO. 64935/2016 RECEIVED NYSCEF: 07/23/2019 To commence commence the statutory time the statutory time period for appeals as of of right right period for appeals [all, you (CPLR 5513 [a]), you are advised advised to serve this order, with to serve a copy copy of of this order, with notice parties. notice of entry, entry, upon upon all parties. SUPREME COURT COURT OF THE NEW YORK SUPREME THE STATE STATE OF NEW YORK COUNTY OF WESTCHESTER COUNTY WESTCHESTER PRESENT: HON. HON. WILLIAM GIACOMO, J.S.C. PRESENT: WILLIAM J. J. GIACOMO, J.S.C. -_______ - - - - - - - - --- - - - - - -- - - - - - - - - -- - - --- - - - - - - - - - - - - - X X EDUARDO ALVAREZ REYES, EDUARDO ALVAREZ and CAROLINA CAROLINA REYES, Plaintiffs, Plaintiffs, Index 64935/2016 Index No. 64935/2016 against- againstDECISION & ORDER DECISION & ORDER SUBURBAN PROPANE PROPANE PARTNERS, PARTNERS, LP. L.P. and SUBURBAN ANTHONY S. LARKIN, ANTHONY LARKIN, Defendants. Defendants. _____ - - - -- - - - - - - - - - - - - - - - - -- - - - - - - - - - - - - - x -----------------------------------------x action to recover recover damages damages for personal injuries injuries as a result result of a motor motor vehicle In an action for personal vehicle accident, the plaintiff plaintiff moves moves for summary judgment issue of liability, liability, pursuant pursuant to accident, for summary judgment on the issue CPLR 3212: 3212: CPLR Papers Considered Considered Papers Notice of Motion/Affirmation Motion/Affirmation of Lawrence Lawrence Donovan, Donovan, Esq./Affidavit Esq.lAffidavit of 1. Notice Eduardo Alvarez/Exhibits Eduardo Alvarez/Exhibits 1-9; Affirmation of James Hacker, Esq. in Opposition/Affidavit 2. Affirmation James E. Hacker, Opposition/Affidavit of Anthony S. Larkin/Exhibit Larkin/Exhibit AlAffidavit Gregory L. Witte/Exhibit Anthony A/Affidavit of Gregory Witte/Exhibit A-B; A-B; Reply Affidavit Lawrence Donovan, Donovan, Esq. 3. Reply Affidavit of Lawrence Factual and and Procedural Procedural Background Background Factual Plaintiff commenced commenced this against defendants recover damages Plaintiff this action action against defendants to recover damages for for personal injuries injuries sustained sustained in a motor motor vehicle accident that occurred on September September 26, vehicle accident that occurred personal 2015. The The accident accident occurred occurred on Croton Croton Dam Road in the Town New Castle. Castle. The The 2015. Town of New defendant Anthony Larkin was operating a propane propane gas gas delivery owned by the defendant Anthony S. Larkin was operating delivery truck, truck, owned defendant Suburban Suburban Propane Propane Partners, Partners, L.P. Larkin was backing backing the propane truck defendant the propane truck into a customer's driveway, driveway, blocking blocking both lanes lanes of travel. The plaintiff, plaintiff, while while operating operating a customer's travel. The Misubishi Fuso Fuso truck, truck, was was driving driving southbound southbound on Croton Croton Dam Road. As plaintiff plaintiff drove drove Misubishi around a curve, curve, he observed observed the propane propane truck truck and although although he hit the the brakes, brakes, his truck around truck struck the the rear rear driver's driver's side side of of the propane truck, truck, causing causing injuries injuries to plaintiff. plaintiff. The The propane propane struck the propane truck operable after after the impact and there there was was no explosion. explosion. truck was was operable the impact Plaintiff moves moves for summary judgment issue of of liability liability arguing arguing that the issue that he was was Plaintiff for summary judgment on the negligent and defendants defendants are solely solely responsible responsible for accident. not negligent for the the accident. 1 of 4 [*FILED: 2] WESTCHESTER COUNTY CLERK 07/23/2019 04:12 PM NYSCEF DOC. NO. 50 INDEX NO. 64935/2016 RECEIVED NYSCEF: 07/23/2019 64935/2016 Alvarez Suburban Propane Propane Partners, Partners, LP., L.P., Index Index No. 64935/2016 Alvarez v. Suburban before trial. Plaintiff examination before for an examination Plaintiff submits Plaintiff appeared for affidavit and appeared submits an affidavit Plaintiff mph. 30 at 134 testified Croton Dam Dam Road/Route Road/Route mph. southbound on Croton traveling southbound was traveling that he was testified that was approaching Croton lane of travel plaintiff was approaching direction. As plaintiff each direction. travel in each Croton Dam Road has one lane attests Plaintiff attests travel. Plaintiff of travel. lanes of both lanes blind turn, he observed across both truck across defendant's truck the defendant's observed the a blind Plaintiff time. in stop truck his that he hit the brakes as hard as he could, but truck did not stop time. Plaintiff did could, the brakes that would give that would warning that of warning type of any type give notice notice flags, or any flares, flags, cones, flares, safety cones, any safety observe any not observe oncoming motorists motorists of the truck blocking the roadway. roadway. truck blocking to oncoming Plaintiff submits expert affidavit Nicholas Bellizzi, Bellizzi, a professional professional engineer. engineer. affidavit of Nicholas submits the expert Plaintiff documentary various documentary Bellizzi inspected the accident reviewed various site and reviewed accident site that he inspected attests that Bellizzi attests asphalt, two-lane, two-way, a evidence. Bellizzi described Croton Dam Road as two-way, two~lane, asphalt, paved paved described Croton evidence. Bellizzi The line. yellow double by roadway with one lane of travel each direction separated a double yellow The separated direction each in travel of lane one with roadway for sight for of sight The line of wooded. The speed limit limit is 35 mph. Both sides sides of of the roadway are wooded. the roadway speed measured by Bellizzi was measured motorists; Bellizzi to be southbound was traveling southbound plaintiff, traveling such as plaintiff, motorists; such travelled would have truck would approximately 120 feet. Bellizzi Bellizzi states plaintiff's truck have travelled that at 30 mph plaintiff's states that approximately 120 truck for plaintiff's stopping distance brake stopping distance for plaintiff's truck calculates the brake seconds. He calculates feet in 2.5 seconds. 110 feet for distance for stopping distance total stopping calculated the total traveling Bellizzi calculated mph ·to be 60 feet. Bellizzi traveling at 30 mph' stopping distance brake stopping the brake plaintiff's mph as the sum distance and the of the _sum of traveling at 30 mph truck traveling plaintiff's truck total of 170 feet. a for time, for distance during a 2.5 second second perception perception reaction reaction time, total traveled during distance traveled less than was less which was truck which feet to stop his truck Thus, plaintiff needed needed 170 feet Bellizzi, plaintiff according to Bellizzi, Thus, according operate, failed to operate, that Larkin opines that the available to him. Bellizzi Bellizzi opines Larkin failed distance available sight distance of sight feet of the 120 feet was there what see to failed control, and navigate navigate his truck reasonably safe safe manner; manner; failed see what there was truck in a reasonably control, to be seen; violated backing up his truck truck in an unsafe unsafe manner; manner; did not VTL 1211 (a) by backing violated VTL opines that devices. Bellizzi warning devices. helper or traffic Bellizzi opines that any warning place any failed to place spotter; and failed traffic spotter; use a helper collision. the of cause Larkin's acts acts were proximate cause of the collision. sole proximate the sole were the Larkin's affidavit submits an affidavit exist. Larkin fact exist. of fact In opposition, defendants argue argue that issues of Larkin submits that issues opposition, defendants ln employed was he that before trial. Larkin Larkin attests attests that was employed as a examination before for an examination appeared for and appeared customer delivery to a customer was making delivery driver driver by Suburban Propane and was making a propane propane delivery Suburban Propane delivery backing up the was backing accident, he was the accident, of the time of at 203 Croton Dam Road/Route Road/Route 134. At At the time 203 Croton the customer's past truck truck into the customer's driveway. Larkin pulled the propane truck up past the customer's propane customer's driveway. Larkin pulled the truck of the front of the driveway, driveway in the northbound lane. As he began began backing backing into the driveway, the front the northbound driveway southbound lane. was in the southbound truck was the truck of the truck northbound lane lane and the back of the back was in the northbound truck was were traffic were of traffic that both testified that Larkin proceeded driveway and testified both lanes lanes of back into the driveway proceeded to back Larkin waiting. the northbound blocked by the propane truck. There was stopped in the northbound lane lane waiting. was a car stopped truck. There the propane blocked southbound the in truck the plaintiff's Larkin, while checking his mirrors, mirrors, observed observed the plaintiff's truck the southbound lane lane while checking Larkin,. the of third than less point, that truck. passing the curve coming towards the propane truck. At that point, less than a third of the propane the towards passing the curve coming attempt to the-truck propane truck Larkin immediately immediately put put the truck in drive drive to attempt driveway. Larkin was in the driveway. truck was propane center the strike not would not strike move it out that the plaintiff's plaintiff's vehicle vehicle would center of the way so that out of the way move way the way of the truck out the truck "tried to get propane Larkin testified "floored it" and "tried get the out of that he "floored testified that tank. Larkin propane tank. ). as quickly quickly as [he] [he) could" (EBT tr. 91 91). could" (EBT was the back-up The back-up beeper beeper was were on and the flashers were four-way flashers light and four-way strobe light The strobe southbound in a traveling southbound truck traveling audible. backing up, he observed landscape truck observed a landscape While backing audible. While 2 2 of 4 [*FILED: 3] WESTCHESTER COUNTY CLERK 07/23/2019 04:12 PM NYSCEF DOC. NO. 50 INDEX NO. 64935/2016 RECEIVED NYSCEF: 07/23/2019 16 Alvarez Suburban Propane Propane Partners, Partners, L.P., L.P., Index Index No. 64935/20 64935/2016 Alvarez v. Suburban truck came speed" (EBT down-hill l direction (EBT tr. 93). As plaintiff's plaintiff's truck came of speed" traveling "at a high rate of direction traveling down-hil forward propel to d continue around curve, its tires tires locked-u locked-up, however,, the the truck truck continued propel forward and and p, however the curve, around the not could he that testified Larkin n, struck the propane truck. Although during his deposition, Larkin testified that he could not depositio struck the propane truck. Although during as training as and training experience and estimate speed, speed, in his affidavit affidavit he attests attests that based upon upon his experience that based estimate ·. speed limit. a driver, plaintiff was excess of of the 35 mph speed traveling in excess was traveling driver, plaintiff a accident Witte, an accident Defendants submit an expert affidavit of Gregory Gregory L. Witte, expert affidavit nts submit Defenda d reconstructionist. reviewed the evidence and performe performed a a site site documentary evidence the documentary Witte reviewed ctionist. Witte reconstru ent independ no is there that attests investigation. respect to Bellizzi's Bellizzi's affidavit, Witte attests that there no independent affidavit, Witte With respect tion. With investiga alleged for plaintiff's or scientific scientific determin determination plaintiff's speed; speed; no scientific scientific backing backing for plaintiff's alleged of plaintiff's ation of or without forcefully pplied his brakes reaction time; unsupported conclusion plaintiff applied brakes forcefully without that plaintiffa on that rted conclusi time; an unsuppo reaction dent brake nce logs or an indepen any scientific backing or or inquiry inquiry into into maintena maintenance independent brake scientific backing any speed of the assumed based on the inspection; braking analysis analysis that that was was performe performedd was was based assumed speed of the braking n; the inspectio or ts argumen ng supporti without any 30 mph mph and and an an assumed assumed coefficie coefficientnt of of 0.5 without any supporting arguments or friction of of friction 30 time of n reaction perceptio a of independent evaluation; and Bellizzi's calculation of perception reaction time of 2.5 2.5 on calculati Bellizzi's independent evaluation; ons. scientific conclusi seconds any scientific conclusions. without any assumed without was assumed seconds was Witte attests that that the criteria for measuringg stopping stopping site site distance distance is the the height height of of for measurin the criteria Witte attests the of the the height service - and the the road service the driver's eye eye - for trucks that above the height of feet above that is 7.6 feet for trucks the driver's the criteria, this using Witte, using this criteria, the object as above the According to Witte, surface. According the road surface. feet above 2 feet as 2 object the center vehicle to the plaintiffs from plaintiff's stopping sight distance is 271 feet from plaintiff's vehicle center of of the the feet plaintiffs stopping sight distance observed. be observed. truck could northbound lane, where side of the propane truck could clearly clearly be the propane front side where the front nd lane, northbou distance drops the sight nd lane, the When evaluatingg the sight distance the southbou southbound sight distance drops to to from the distance from the sight When evaluatin the than distance sight stopping longer 220 feet. Witte sates that both methods create longer stopping sight distance than the a create 220 feet. Witte sates that both methods opines that Witte opines 120 feet plaintiff's expert. Based upon upon this this criterion, criterion, Witte that expert. Based calculated by plaintiffs as calculated feet as 120 halt. complete a to truck his bring to plaintiff had had from truck complete halt. distance bring stopping distance of stopping feet of 220 to 271 feet from 220 plaintiff avoided and truck the stopped have If plaintiff was traveling 30 mph, could have stopped truck and avoided the the could he mph, at If plaintiff was traveling Witte Belilzzi. by d friction of collision. Witte also disputes of .50 as measure measured Belilzzi. Witte surface friction the road surface disputes the Witte also collision. Witte plaintiff. by faced slope downhill the states that the road surface friction was on downhill slope faced plaintiff. Witte .60 surface friction was states that the stated seconds stated the 2.5 seconds also attests attests that perceptionn reaction reaction time 1-1.2 seconds seconds,, not the time is 1-1.2 the perceptio that the also result sole the sole result of was the by plaintiffs plaintiff's expert. expert. Witte opines that accident was of plaintiffs plaintiff's the accident that the Witte opines by warning the to respond to failure the excessive speed, distraction, defective brakes, or failure respond to the warning brakes, excessive speed, distraction, defective curve. signs ahead ahead of of the the curve. . signs ion Discussion Discuss facie a prima judgment must The propone proponent of a motion motion for must make make a prima facie summary judgment for summary nt of The evidence to sufficient evidence tendering sufficient of law, tendering showing of of entitleme entitlementnt to judgment matter of to judgment as a matter showing Ctr., Med. Univ. Y. v d Winegra (see case the eliminate any material issues of fact from the case (see Winegrad N. Y. Med. Cfr., from eliminate any material issues fact 64 NY2d NY2d 851, 851, 853 [1985]; [1985]; Zuckerman Cify of of New New York, 49 NY2d NY2d 557,' 557: 562 562 [1980]). [1980]). Zuckerm an v City 64 cy sufficien the of ss regardle motion, the Failure to make such showing requires denial of the motion, regardless of sufficiency of Failure to make such showing requires denial 853). of the papers (see (see Winegra Winegradd v N. Y. Y. Univ. Med. Ctr., Cfr., 64 NY2d NY2d at at 853). opposing papers the opposing of the party shifts to the "Once this this showing showing has been been made, made, however however,, the the burden burden shifts party "Once le admissib in proof ry evidentia opposing the motion for summary judgment produce evidentiary proof admissible produce to t judgmen y opposing the motion for summar 3 3 of 4 [*FILED: 4] WESTCHESTER COUNTY CLERK 07/23/2019 04:12 PM NYSCEF DOC. NO. 50 INDEX NO. 64935/2016 RECEIVED NYSCEF: 07/23/2019 Alvarez v. Suburban Suburban Propane Propane Partners, Partners, LP., L.P., Index Index No. 64935/2016 64935/2016 Alvarez sufficient to establish establish the existence existence of material material issues issues of fact fact which which require require a trial of form sufficient the action" action" (Alvarez (Alvarez v Prospect Prospect Hosp., Hosp., 68 NY2d 320, 324 [.1986]; [1986]; see see Zuckerman Zuckerman v City City of New New York, 49 NY2d NY2d at 562). of "The function function of the court court on a motion motion for for summary summary judgment resolve "The judgment is not to resolve issues of fact fact or or determine determine matters matters of of credibility, credibility, but but merely merely to determine determine whether whether such such issues issues exist" exist" (Kolivas (Kolivas v Kirchoff, Kirchoff, 14 AD3d AD3d 493 493 [2d Dept Dept 2005]; 2005]; see Dykeman Dykeman v Heht, 52 issues AD3d 767, 768 [2d Dept Dept 2008]). 2008]). Additionally, Additionally, in determining determining a motion motion for for summary summary AD3d judgment, evidence must must be viewed viewed in the light light most most favorable favorable to the the nonmovant nonmovant (see (see judgment, evidence Pearson v Dix Dix McBride, McBride, 63 AD3d AD3d 895 [2d Dep't Dep't 2009]; 2009]; Brown Brown v Outback Outback Steakhouse, Steakhouse, 39 Pearson AD3d 450, 451 [2d Dept Dept 20071). 2007]). The The plaintiff plaintiff is not not required required to demonstrate demonstrate freedom freedom from AD3d 450, comparative fault fault in order order to establish establish a prima prima facie facie entitlement entitlement to summary summary judgment comparative judgment on issue of liability liability (see (see Rodriguez Rodriguez v. vGity of New New York, 31 NY3d NY3d 312 [2018]; [2018]; Portalatin Portalatin v the issue City of City City of of New New York, 165 AD3d AD3d 1302, 1303 1303 -[2d [2d Dept Dept 20181). 2018]). Vehicle and Traffic Traffic Law Law 1211 (a) provides provides that that the the driver driver shall shall not not back-up back-up a vehicle vehicle Vehicle unless such such movement movement can be made made with with safety safety and without without interfering interfering with with other other traffic. traffic. unless Viewing the evidence evidence in the the light light most most favorable favorable to the non-moving non-moving party, party, the the plaintiff plaintiff Viewing failed to establish establish a prima prima facie facie showing showing of entitlement entitlement to partial partial summary summary judgment failed judgment on the issue issue of liability. liability. the The evidence evidence demonstrates demonstrates that that the strobe strobe light, four-way four-way flashers, back up The flashers, and back beeper were were all operable operable on the the truck truck and in use at the time time of of the the accident. accident. The The propane propane beeper truck was was a third third of of the the way way into the the driveway driveway when when the the plaintiff's plaintiff's truck truck became became visible visible to truck Larkin. Moreov~r. Moreover, defendant's defendant's expert expert affidavit affidavit demonstrates demonstrates that that a vehicle vehicle traveling traveling Larkin. southbound southbound on Route Route 134, such as plaintiff's plaintiff's truck, truck, could could have have stopped stopped in sufficient sufficient time time observing the the propane propane truck truck backing backing up into the the driveway. driveway. Thus, Thus, issues issues of of fact fact exist exist upon observing whether Larkin Larkin took took the proper proper precautions precautions before before backing backing up the propane propane truck truck into as to whether the customer's customer's driveway. driveway. Accordingly, the the plaintiffs plaintiffs motion motion for for summary summary judgment the issue issue of liability liability Accordingly, judgment on the pursuant to CPLR CPLR 3212 3212 is DENIED. DENIED. . pursuant The parties parties are directed directed to appear appear in the Settlement Settlement Conference Conference Part, room 1600, The August 27, 27,2019, 9:15 a.m. a.m. for for further further proceedings. proceedings. on August 2019, at 9:15 Dated: Dated: White Plains, Plains, New New York York White July 23, 23,2019 July 2019 1-1.AI PHARI=TIr.AI MA~TFR 4 of 4 I I~T - WESTCHESTER/Alvarez Suburban Prooane Partners Partners v. S burban Prooane
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