Bonesteel-Miranda v Estate of Gregory McAdam

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Bonesteel-Miranda v Estate of Gregory McAdam 2020 NY Slip Op 34631(U) January 27, 2020 Supreme Court, Orange County Docket Number: Index No. EF003800-2017 Judge: Sandra B. Sciortino 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] ORANGE COUNTY CLERK 01/28/2020 09:47 AM NYSCEF DOC. NO. 54 INDEX NO. EF003800-2017 RECEIVED NYSCEF: 01/28/2020 To commence 1hc tarutory time for appeals a of right (CPLR 55 13 [a)), you are advised to serve n copy of this order, wit h not ice o f entry, upon all pani" . SUPREME COURT OF THE ST ATE OF NEW YORK CO TY OF ORANGE ----------------------------------------------------------------X BRITTANY A. BONE TEEL-MIRANDA and BRIAN MIRANDA, Plaintiffs DECISION AND ORDER INDEX NO.: EF003800-2017 Motion Date: 1/10/2020 equence No. 2 -against- THE ESTATE OF GREGORY MCADAM AND THE ESTATE OF EILEEN MCADAM, BY THEIR EXECUTORS KIMBERLY S. MCADAM AND GILLON J.MCADAM, Defendants. ----,--------------------------------------------------------------X SCIORTINO, J. The following papers numbered 1 to 19 were considered in connection with plaintiffs unopposed motion seeking an order granting partial summary judgment on the issue of liability: NUMBERED PAPERS l - 19 otice of Motion/Affirmation (Mainetti)/Exhibits A-O Background and Procedural Hi tory This p rsonal injury action arises out of a motor vehicl accident that took place on Apri l 3 2017 on tate Route 747 .in the Town of Montgomery Orange County e York. Plaintiff commenced this action by filing a Summons and Complaint on or about May 22 2017 (Exhibit B) . Issue was joined with the filing of defendant ' s Answer on June 15 2017 ( xhibit D). Filed in Orange County 01 /28/2020 09:47:25 AM $0.00 1 of 5 Pg : 1325 Bk: 5124 Index: # EF003800-2017 Clerk: DK [*FILED: 2] ORANGE COUNTY CLERK 01/28/2020 09:47 AM NYSCEF DOC. NO. 54 INDEX NO. EF003800-2017 RECEIVED NYSCEF: 01/28/2020 The essential facts underpinning this action are not significantly disputed. On the date of the accident plaintiff Brittany Miranda-Bonesteel was operating a motor vehicle in a southbound direction, when it was struck by a motor vehicle operated by Eileen McAdam with the permission of defendant-owner Gregory McAdam . Eileen McAdam, while traveling northbound, crossed over into the plaintiffs lane of travel. The collision is alleged to have caused severe and permanent injuries to plaintiff. Current Motion By Notice of Motion filed ovember 14 2019 plaintiffs s ek partial summary judgment on the issue of liability. In support of their motion plaintiffs include affidavit of plaintiff Brittany Bonesteel-Miranda (Exhibit A) in which plaintiff avers that on April 3, 2017 while operating her motor vehicle in a southbound direction Eileen McAdam crossed o er the double yellow painted line striking plaintiff motor vehicle head on. Eileen McAdam died as the result of her injuries. Appended to the moving papers as Exhibits E and F respective! witness Debra Spencer, dated April 11 2017 and the transcript of her are statements of ovember 30 2017 deposition. In both her statement and deposition Ms. Spencer indicates that she was traveling directly behind plaintiff immediately before the accident. he observed the vehicle operated by Eileen McAdam quickly cross over from the opposite lane into plaintiff's lane, striking plaintiff's vehicle head on. Appended to the moving papers as Exhibit G is a certified Police Accident Report. The report confirms that the round way was marked by a double yellow line. It also indicates that, 2 2 of 5 [*FILED: 3] ORANGE COUNTY CLERK 01/28/2020 09:47 AM NYSCEF DOC. NO. 54 INDEX NO. EF003800-2017 RECEIVED NYSCEF: 01/28/2020 after investigation it was concluded that the "point of impact ws in the plaintiff's lane of travel. Plaintiffs further append their attorney's affirmation in which it is argued that a driver who crosses over a clearly marked roadway marking and enters into another's lane of travel causing a collision without explanation is negligent as a matter of law. Plaintiff further argues that a driver in her proper lane of travel is not required to anticipate that a car going in the opposite direction will cross over into that l.ane and a driver faced with a vehicle careening across the highway directly into his path is not liable for her failure to exercise the best judgment or for any errors of judgment on his part. In the instant matter plaintiff Brittany BonesteelMiranda was injured when her car was struck head on by defendant's vehicle traveling in her lane. Plaintiff argues that they have establ ished as a matter of law that the sole proximate cau e of the accident was Defendant McAdam's conduct in crossing the road into plaintiffs lane of travel The defendants have not filed any opposition papers to the instant motion. Discussion Summary judgment is a drastic remedy, appropriate only when there is a clear demonstration of the absence of any triable issue of fact. Piccirillo v. Piccirillo 156 A.D.2d 748 (2 nd Dep' t. 1989), citing Andre v. Pomeroy, 35 N.Y.2d 361 (1974). The courts function on such a motion is issue finding, not i.ssue determination. Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395 (1957). The court is not to engage in the weighing of evidence· instead, the Court must determine whether "by no rational process could the trier of facts find for the non-moving party." Jastrzebski v. N Shore Sch. Dist., 232 A.D.2d 677 678 (2 nd Dep ' t. 1996). 3 3 of 5 [*FILED: 4] ORANGE COUNTY CLERK 01/28/2020 09:47 AM NYSCEF DOC. NO. 54 INDEX NO. EF003800-2017 RECEIVED NYSCEF: 01/28/2020 The Court is obligated to draw all reasonable inferences in favor of the non-moving party. Rizzo v. Lincoln Diner Corp. 215 A.D.2d 546 2 nd Dep't. 2000). Where facts are in dispute where conflicting inferences may be drawn from the evidence, or where there are issues of credibility, summary judgment must not be granted. Jastrzeb ki, 223 A.D.2d at 678. A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety. Veh. & Traffic Law § l 128(a). When official marking are in place indicating those portions of any highway where o ertaking and passing or driving to the left of such markings would be especially hazardous no driver of a vehicle proceeding along such highway shall at any time drive on the left side of such markings. Yeh. & Traffic Law § 1 l 26(a). Crossing a double yellow line into the opposing lane of traffic in iolation of Vehicle and Traffic Law § 1126(a) constitutes negligence as a matter of law, unless justified by an emergency situation not of the drivers making. Gadon v. Oliva 294 AD2d 397-3 98 (2 nd Dep t 2002). As the instant motion is unopposed, defendants have failed to provide such an explanation. In the matter at bar, plaintiff has established a prima facie entitlement to summary judgment by the proffer of a sworn statement alleging that plaintiff Brittany Bonesteel-Mi randa was traveling within the speed limit when her ehicle was truck head on by Eileen McAdam 's vehicle in the plaintiffs lane of travel. Such a showing requires defendant to come forward with a non-negligent explanation for the accident. Velazquez, citing hamah v. Richmond ounty Ambulance Serv. 279 AD2d 564 (2 nd Dep' t 2001) The denial and affirmative defenses in defendants Answer do not suggest much less 4 4 of 5 [*FILED: 5] ORANGE COUNTY CLERK 01/28/2020 09:47 AM NYSCEF DOC. NO. 54 INDEX NO. EF003800-2017 RECEIVED NYSCEF: 01/28/2020 demonstrate, that there are any facts in dispute that would rebut the presumption of negligence established by Eileen McAdam crossing the double yellow line entering into oncoming traffic. Accordingly, the motion for partial summary judgment on the issue of liability is granted. The parties shall appear for a conference on February 3, 2020 at I 0:30 a.m. This decision shall constitute the order of the Court. Dated: January 27, 2020 Goshen, New York To: Counsel ofRecord via NYSCEF 5 5 of 5

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