Harchaoui v Queen

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Harchaoui v Queen 2020 NY Slip Op 34652(U) June 16, 2020 Supeme Court, Rockland County Docket Number: Index No. 036349/2018 Judge: Sherri L. Eisenpress 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] ROCKLAND COUNTY CLERK 06/22/2020 09:09 AM NYSCEF DOC. NO. 49 .i INDEX NO. 036349/2018 RECEIVED NYSCEF: 06/22/2020 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF ROCKLAND ------------------------------------------------------------x JACQUELINE HARCHAOUI, DECISION & ORDER Plaintiff, Action No. 1 Index No.: 036349/2018 -againstLAURA E. QUEEN and ANDREW WILEY, (Motion # 2 and #3) Defendant. -------------------------------------------------------- ----x ANDREW M. WILEY, Action No. 2 Index No.: 032996/2019 Plaintiff, (Motion #1) -againstLAURA E. QUEEN, Defendant. -------------------------------------------------------------x Sherri L. Eisenpress, A.J.S.C. The following papers, numbered 1 through 11, were considered in connection with (i) Plaintiff Jaqueline Harchaoui's ("Harchaoui") Notice of Motion for an Order, pursuant to Civil Practice Law and Rules § 3212, granting summary judgment in favor of Plaintiff on the issue of liability as against defendants Wiley and Queen (Action #1, Motion #2); (ii) Defendant Andrew Wiley's ("Wiley") Notice of Motion for an Order, pursuant to Civil Practice Law and Rules § 3212, granting summary judgment and dismissing the action against him (Action #1, Motion #3); (iii) Plaintiff's Andrew Wiley's Notice of Motion for an Order, pursuant to Civil Practice Law and Rules § 3212, granting summary judgment in favor of Plaintiff on the issue of liability as against defendant Laura E. Queen ("Queen")(Action #2, Motion #1): NUMBERED PAPERS Action #1, Motion #2 NOTICE OF MOTION/AFFIRMATION IN SUPPORT/EXHIBITS A-F 1-2 AFFIRMATION IN OPPOSITION BY WILEY/EXHIBITS A-C 3 1 1 of 8 [*FILED: 2] ROCKLAND COUNTY CLERK 06/22/2020 09:09 AM NYSCEF DOC. NO. 49 INDEX NO. 036349/2018 RECEIVED NYSCEF: 06/22/2020 AFFIRMATION IN OPPOSITION BY DEFENDANT QUEEN 4 Action #1, Motion #3 NOTICE OF MOTION/AFFIRMATION IN SUPPORT/EXHIBITS A-D 5-6 AFFIRMATION IN OPPOSITION BY DEFENDANT QUEEN 7 AFFIRMATION IN REPLY 8 Action #2, Motion #1 NOTICE OF MOTION/AFFIRMATION IN SUPPORT/EXHIBITS A-F 9 AFFIRMATION .IN OPPOSITION BY DEFENDANT QUEEN/EXHIBITS A-B 10 AFFIRMATION IN REPLY/EXHIBITS A-D 11 Upon a careful and detailed review of the foregoing papers, the Court now rules as follows: Action #1 was commenced by Plaintiff Harchaoui on October 24, 2018. Issue was joined with the service of answers by Defendant Wiley on January 18, 2019, and by Defendant Queen on February 8, 2019. Action #2 was commenced by Plaintiff Wiley on June 7, 2019. Issue was joined as to Defendant Queen with the service of an answer on August 7, 2019. The two actions, which have been joined for trial, arise out of the same two-vehicle automobile accident that occurred on August 18, 2017, on State Highway 28, in the Town of Olive, Ulster county, New York. Andrew Wiley was driving eastbound and Laura Queen was driving westbound, when Queen attempted to make a left hand turn into a gas station, resulting in a collision between the two vehicles. Plaintiff Harchaoui was a front seat passenger in the Wiley vehicle. Wiley moves for summary judgment in his favor in Action #2 and to dismiss the action against him in Action #1 and asserts that he is entitled to summary judgment as a matter of law based upon the Defendant Queens' violation of Vehicle and Traffic Law Sec. 1141, "Vehicle Turning Left," which states in relevant part: The 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 2 2 of 8 [*FILED: 3] ROCKLAND COUNTY CLERK 06/22/2020 09:09 AM NYSCEF DOC. NO. 49 INDEX NO. 036349/2018 RECEIVED NYSCEF: 06/22/2020 direction which is within the intersection or so close as to constitute an immediate hazard. Plaintiff further avers that Defendants violated Vehicle and Traffic Law Sec. 1163(a), entitled "Turning movements and required signals," which states in relevant part: No person shall turn a vehicle at an intersection unless the vehicle is in proper position upon the roadway ... or otherwise turn a vehicle from a direct course or move right or left upon a roadway unless and until such movement can be made with reasonable safety. Wiley asserts that he is not negligent for the happening of this accident since he had a right to an anticipate that Queen would obey the traffic laws and that Queen made a sudden and abrupt turn into his path, not leaving any time to avoid the subject occurrence. Wiley's front end of his vehicle made contact with the rear of Queen's vehicle. Wiley relies upon the certified police report which contains the officer's notes that "OpV-1 (Queen) attempted to pull into a gas station on the south side of the road and crossed into the opposte lane of travel into the path of V-2. OpV-2 (Wiley) was unable to avoid the collision and struck V-1." In opposition to Wiley's motions, Queen submits a transcript of a telephone statement given by Wiley in connection with Action #1 on July 18, 2018. At that time, Wiley states the following when asked what happened: So basically I'm driving along. Your insured basically crossed over a double yellow line about maybe 100 feet in front of me or so . I don't even know exact distance. He just cut in front of me and basically uh, my only option was to try to avoid that car so I swerved to the lane that she came from and she them proceeded to either slow down or stop and the front passenger side of my vehicle hit the rear of her vehicle so she came into my lane. He additionally testified that he was traveling 30 miles per hour when this occurred. Queen argues that based upon this admission, particularly the statement that Queen began her turn 100 feet in front of him while he was traveling 30 mph, there are triable issues of fact as to whether Wiley could have avoided the accident altogether. 3 3 of 8 [*FILED: 4] ROCKLAND COUNTY CLERK 06/22/2020 09:09 AM NYSCEF DOC. NO. 49 INDEX NO. 036349/2018 RECEIVED NYSCEF: 06/22/2020 Counsel for Queen contends that there are also triable issues of fact as to Wiley 1s negligence based upon Queen 1 s testimony that she recalls seeing cars approaching from a distance and intended to enter the first ( easterly) entrance to the gas station to her left; however, a truck proceeding in front of her did so, thus, she proceeded to the second (westerly entrance.) She claims she stopped, activated her left turn signal and began to turn. As she was about to enter the gas station entrance, she noticed Wiley approaching from her right, "punched" her accelerator resulting in the front portion of her vehicle reaching the incline of the drive-way with the rear portion of her vehicle beyond the white shoulder/white fog line of the east bound lane of Rt. 28, when the rear portion of her vehicle was struck. Counsel for Harchaoui argues that Wiley failed to attach any admissible proof in support of the motion, as he attached the wrong deposition transcript to the motion which discusses his injuries and not the happening of the accident. Harchaoui further argues that the MV-104 completed by defendant Wiley is not admissible nor is the description contained in the police report as no statements are directly attributable to Queen. Counsel for Harchaoui also argues that while Queen negligently made a left hand turn, Wiley is also liable to plaintiff as a matter of law for driving too fast. In support of this contention, Harchaoui cites Queen's testimony that she was able to see between 100 and 200 feet ahead and that it was clear in terms of oncoming traffic. She testified that she saw the Wiley vehicle for about two to ten seconds prior to the accident and that it took her 5 to 15 seconds to complete her turn. In reply, Wiley argues that he testified that the crash took place in his lane of travel when Defendant Queen unexpectedly cut in front of his vehicle, less than two seconds before the crash, with no turn signal. He further cites Queens testimony that her view of oncoming traffic was blocked by an advertising banner in the distance on the shoulder of the eastbound lane and she nonetheless made the left turn. He argues that Google Maps 1 shows 1 The Court notes that the Google Map picture annexed to the moving papers is indecipherable. 4 4 of 8 [*FILED: 5] ROCKLAND COUNTY CLERK 06/22/2020 09:09 AM NYSCEF DOC. NO. 49 INDEX NO. 036349/2018 RECEIVED NYSCEF: 06/22/2020 there is only one entrance and one exit to the gas station at the place where she made her left turn, and therefore she made a turn onto a patch of grass. Lastly, Wiley argues that the uncertified unattested statement taken of him is inadmissible hearsay, and in any event, fails to support comparative negligence on his part. He further notes that it was taken without counsel present, after it was known that Wiley was represented. Plaintiff Harchaoui moves for summary judgment as to liability in her favor on the ground that she was a passenger and not negligent as a matter of law. She argues that Queen violated the Vehicle and Traffic Law and is negligent as a matter of law and Wiley was negligent in failing to exercise due care to avoid colliding with a left turning motorist. Harchaoui argues that case law supports her contention that the right of an innocent passenger to summary judgment is not restricted by potential issues of comparative negligence as between the two drivers. Plaintiff Wiley opposes Plaintiff Harchaoui's motion for summary judgment and argues that summary judgment can only be granted as a matter of law when a driver is the sole proximate cause of an accident. Wiley contends that he is not negligent as a matter of law. The proponent of a summary judgment motion must establish his or her claim or defense sufficient to warrant a court directing judgment in its favor as a matter of law, tendering sufficient evidence to demonstrate the lack of material issues of fact. Giuffrida v. Citibank Corp., et al., 100 N.Y.2d 72, 760 N.Y.S.2d 397 (2003), citing Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923 (1986). The failure to do so requires a denial of the motion without regard to the sufficiency of the opposing papers. Lacagnino v. Gonzalez, 306 A.D.2d 250, 760 N.Y.S.2d 533 (2d Dept. 2003). However, once such a showing has been made, the burden shifts to the party opposing the motion to produce evidentiary proof in admissible form demonstrating material questions of fact requiring trial. Gonzalez v. 98 Mag Leasing Corp., 95 N.Y.2d 124, 711 N.Y.S.2d 131 (2000), citing Alvarez, supra, and Winegrad v. New York Univ. Med. Center, 64 N.Y.2d 851, 508 N.Y.S.2d 923 (1985). Mere conclusions or unsubstantiated allegations unsupported by competent evidence are insufficient to raise a 5 5 of 8 [*FILED: 6] ROCKLAND COUNTY CLERK 06/22/2020 09:09 AM NYSCEF DOC. NO. 49 INDEX NO. 036349/2018 RECEIVED NYSCEF: 06/22/2020 525 N.Y.S.2d 793 (1988) ; triable issue. Gilbert Frank Corp. v. Federal Ins. Co., 70 N.Y.2d 966, d 595. On a motion for Zucker man v. City of New York, 49 N.Y.2d 557 (1980) , 427 N.Y.S.2 le to the party opposi ng summa ry judgm ent, eviden ce is to be viewed in the light most favorab and the Court should not the motion , giving them the benefit of every favorab le inferen ce, 724 N.Y.S.2d 461 (2d Dept. pass of issues of credibi lity. Torres v. Jeremi as, 283 A.D.2d 484, 674 N.Y.S.2d 753, 756 (2d 2001); Cortale v. Educat ional Testing Service s, 251 A.D.2d 1998, Dept. 1998). as a matter of "A violatio n of the Vehicle and Traffic Law constit utes neglige nce d 89 (2d Dept. 2014). law." Gluck v. New York City Tr. Auth, 118 A.D.3d 667,66 9,987 N.Y.S.2 as a matter of law by A plaintif f demon strates a prima facie entitle ment to judgm ent Law Sec. 1141 when he establi shing that the defend ant driver violate d Vehicle and Traffic f's vehicle was legally made a left turn directly into the path of plaintif f's vehicle as the plaintif , 31 A.D.3d 591, 592, procee ding into the interse ction with the right-o f-way. Berner v. Koegel 611, 872 N.Y.S.2d 143 (2d 819 N.Y.S.2d 89 (2d Dept. 2006); Moreno v. Gomez, 58 A.D.3d entitled to assum e that the Dept. 2009). "The operat or of a vehicle with the right-o f-way is yield." Giwa v. Bloom, 154 opposi ng driver will obey the traffic laws requirin g him or her to A.D.3d 921, 62 N.Y.S.3 d 527 (2d Dept. 2017). found to have "The driver travelin g with the right -of-wa y may neverth eless be reason able care to avoid contrib uted to the happen ing of the accide nt if he or she did not use 123 (2d Dept. 2017). Thus, the accide nt." Aponte v. Vani, 155 A.D.3d 929, 930, 64 N.Y.S.3d ent to judgm ent as a matter althoug h a plaintif f may have establi shed his prima facie entitlem violate d VTL Sec. 1141 by of law on the issue of liability by showin g that the defend ant driver him no time to react, turning left in front of his vehicle withou t warnin g or signalin g, leaving defend ant driver initiate d triable issues of fact may be raised by showin g that, at the time the ute an immed iate hazard ." her turn, the plaintif f's vehicle was not "so close as to constit 2019). See also Wilson Bradne y v. Picinic, 172 A.D.3d 673, 99 N.Y.S.3d 399, 401 (2d Dept. althoug h plaintif f had the v. Mazew ski, 175 A.D.3d 1352, 105 N.Y.S.3d 888 (2d Dept. 2019)( 6 6 of 8 [*FILED: 7] ROCKLAND COUNTY CLERK 06/22/2020 09:09 AM NYSCEF DOC. NO. 49 INDEX NO. 036349/2018 RECEIVED NYSCEF: 06/22/2020 right of way, summary judgment denied because issues of fact as to whether plaintiff contributed to the occurrence of the collision.) In the instant matter, the Court finds that Wiley has met his prima facie burden for entitlement to summary judgment based upon his deposition testimony that Queen made a sudden left turn in front of his vehicle such that there was a violation of VTL Sec. 1141 and Sec. 1163(a). However, in opposition thereto, the remaining parties have demonstrated a triable issue of fact based upon statements made by Wiley in his recorded statement with respect to the distance at which he first observed Queen begin to turn, as well as Queen's testimony that the rear portion of her vehicle was beyorid the white shoulder/white fog line of the east bound lane of Rt. 28, when the rear portion of her vehicle was struck. Contrary to Wiley's contentions, his statement that Queen's vehicle was 100 feet away when he observed her begin her left turn is admissible as a party admission. Giving every favorable inference to the opposing parties, as this Court must on a summary judgment motion, a jury could find that Queen began her left turn at a point wherein it did not pose an immediate hazard and/or that Wiley could have avoided the accident. Accordingly, Wiley's summary judgment motions are denied. The Court reaches a different conclusion with respect to Harchaoui's summary judgment motion, which is granted . It is well established that the right of an innocent passenger to summary judgment is not restricted by potential issues of comparative negligence as between two drivers. Choi v. Schwabenbauer, 124 A.D .3d 574, 575, 1 N.Y.S.3d 276 (2d Dept. 2015); Anzel v. Pistorino, 105 A.D.3d 784, 786, 962 N.Y.S.2d 700 (2d dept. 2013). In Garcia v. Tri-County Ambulette Service. Inc., 282 A.D.2d 206, 723 N.Y.S.2d 163 (l5t Dept. 2001), the court specifically rejected the same argument made by Wiley that Harchaoui cannot be entitled to summary judgment as to liability against both defendants, where the possibility exists that or the other may not be found negligent by a jury. Here, Harchaoui is free from comparative negligence and a a passenger is entitled to summary 7 7 of 8 [*FILED: 8] ROCKLAND COUNTY CLERK 06/22/2020 09:09 AM NYSCEF DOC. NO. 49 INDEX NO. 036349/2018 RECEIVED NYSCEF: 06/22/2020 judgment notwithstanding the fact that one of the defendants may be found not responsible for the accident. Accordingly, it is hereby ORDERED that Plaintiff Harchaoui's Notice of Motion for Summary Judgment as to liability is GRANTED in its entirety (Action #1, Motion #2); and it is further ORDERED that Defendant Wiley's Notice of Motion for Summary Judgment and dismissal of the action against him in Action #1 is DENIED in its entirety (Action #1, Motion #3); and it is further ORDERED that Plaintiff Wiley's Notice of Motion for Summary Judgment as to liability in his favor in Action #2 is DENIED in its entirety (Action #2, Motion #1); and it is further ORDERED that counsel for the parties shall appear before the undersigned for the previously scheduled SKYPE conference on June 30, 2020, at 3 p.m. The foregoing constitutes the Decision and Order of this Court on Motions #2 and #3 in Action #1 and Motion #1 in Action #2. Dated: New City, New York June 16, 2020 To: All parties (via NYSCEF) 8 8 of 8

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