Kirby v S. Helwig & Son, LLC

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Kirby v S. Helwig & Son, LLC 2020 NY Slip Op 34655(U) June 9, 2020 Supreme Court, Westchester County Docket Number: Index No. 50124/2019 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 06/09/2020 11:59 AM NYSCEF DOC. NO. 62 INDEX NO. 50124/2019 RECEIVED NYSCEF: 06/09/2020 To commence commence the statutory statutory time time period for appeals as of of right right period for appeals (CPLR 5513 (a]), you are advised [a]), you advised to serve a copy copy of of this to serve this order, order, with with notice of of entry, entry, upon upon all parties. parties. notice ____________________ SUPREME COURT STATE OF NEW NEW YORK SUPREME COURT OF THE THE STATE YORK COUNTY OF WESTCHESTER WESTCHESTER COUNTY PRESENT: HON. HON. WILLIAM PRESENT: WILLIAM J. GIACOMO, GIACOMO, J.S.C. J.S.C. ,x -::::-:::-:::-:::-==-:-----:-::-:-:::'.=-:-:-----:-::-:-:-:~-:---------x ROBERT L. KIRBY KIRBY and MYLA MYLA S. KIRBY, KIRBY, ROBERT Plaintiff, Plaintiff, Action No. Action NO.11 against- against- Index Index No. 50124/2019 50124/2019 S. HELWIG HELWIG & SON, SON, LLC, EUGENE EUGENE DONALD DONALD LENIUS, LENIUS, Defendants. Defendants. --------------------------------------------------------------------------x --------------------------------------------------------------------------x DECISION & ORDER DECISION & ORDER Mot. Seq. Seq. 2 Mot. SUPREME COURT COURT OF THE THE STATE STATE OF NEW NEW YORK SUPREME YORK COUNTY OF WESTCHESTER COUNTY WESTCHESTER ______ c ---------------------x ---------------------------------------------------------------------------x Action No. Action NO.22 RUBY CAMPBELL CAMPBELL, , RUBY Plaintiff, Plaintiff, Index Index No. 20823/2018 20823/2018 - againstagainstHELWIG & SON, LLC, EUGENE EUGENE DONALD DONALD LENIUS LENIUS J.S. HELWIG AND ROBERT AND ROBERT KIRBY, KIRBY, Defendants. Defendants. ____________________ x In an action action to recover recover damages damages for personal injuries injuries as a result result of a motor motor ln for personal Action No. vehicle accident, the defendant vehicle accident, the defendant in Action NO.2,2, Robert Robert Kirby, moves moves for summary summary judgment, pursuant to CPLR CPLR 3212, dismissing dismissing the complaint: judgment, pursuant complaint: -------------------Papers Considered Considered Papers 1. 2. 3. 4. 5. NYSCEF Doc. Doc. No.s No.s 41-49,52,58-61 NYSCEF 41-49, 52, 58-61 Notice of Motion/Affirmation Motion/Affirmation of Robert Robert J. Spence, Spence, Eq./Exhibits Eq./Exhibits A-G; Notice A-G; Affirmation of Neil R. Kafka, Opposition; Affirmation Kafko, Esq. in Opposition; Reply Affirmation Robert J. Spence, Reply Affirmation of Robert Spence, Esq.; Affirmation of of Jeffrey Jeffrey Samel, Samel, Esq. in Opposition/Exhibit Opposition/Exhibit A; Affirmation Reply Affirmation of Robert Robert J. Spence, Spence, Esq. Reply Affirmation of 1 of 4 [*FILED: 2] WESTCHESTER COUNTY CLERK 06/09/2020 11:59 AM NYSCEF DOC. NO. 62 INDEX NO. 50124/2019 RECEIVED NYSCEF: 06/09/2020 Kirby ).S. Helwig & Son, Son, LLC, Kirby v. J.S. Helwig & LLC, Index Index No. 50124/2019 50124/2019 Factual Factual and Procedural Procedural Background Background Plaintiffs commenced commenced these separate actions actions for personal personal injuries injuries sustained Plaintiffs these separate sustained as a result of of a motor motor vehicle result vehicle accident accident that that occurred occurred on May 17, 2018, on westbound westbound Interstate 84, in Dutchess Dutchess County County1.1. Interstate Robert vehicle was was traveling traveling in the right lane of westbound westbound 184. Ruby Robert L. Kirby's Kirby's vehicle lane of Campbell was passenger in the Kirby Kirby vehicle. Eugene Donald Donald Lenius Lenius was operating a Campbell was a passenger vehicle. Eugene was operating tractor trailer westbound 184. The The tractor tractor trailer trailer was was owned tractor trailer in the left lane of westbound owned by J.S. Helwig tractor trailer trailer was was attempting attempting to change from the left lane Helwig & Son, LLC. The tractor change lanes lanes from to the right vehicle. right lane lane when when it struck struck the Kirby Kirby vehicle. defendant in Action NO.2, moves for summary judgment dismissing the Kirby, as defendant Action No. 2, moves for summary judgment dismissing complaint in Action NO.22 on the grounds negligent in the happening happening of of complaint Action No. grounds that that he was was not negligent the accident accident and the accident accident was solely caused unsafe lane was solely caused by the tractor tractor trailer's trailer's unsafe change. transcript, Campbell's deposition change. Kirby Kirby submits, submits, inter inter alia, his deposition deposition transcript, Campbell's deposition transcript, a certified video of the accident transcript, certified police police accident accident report, and a dash dash camera camera video accident. The police accident accident report report states The police states that that both vehicles vehicles were were traveling traveling westbound westbound on Kirby vehicle right lane and the tractor Kirby 184 with the Kirby vehicle in the right tractor trailer trailer in the left lane. Kirby advised the responding responding officer changed lanes lanes unsafely unsafely and advised officer that that the tractor tractor trailer trailer changed subsequently made made contact Lenius advised officer that Kirby subsequently contact with his vehicle. vehicle. Lenius advised the officer that the Kirby was changing vehicle vehicle came came out of of nowhere nowhere as he was changing lanes. lanes. Kirby testified testified that that prior prior to the accident, accident, he observed Kirby observed the truck truck in his sideview sideview mirror approaching approaching in the left lane. His vehicle, the right lane, was was mirror vehicle, which which was was traveling traveling in the which made attempted to next next to the back back of of the .truck truck which made Kirby Kirby uncomfortable. uncomfortable. Kirby Kirby attempted accelerate past past the truck. of the truck, accelerate truck. As he approached approached the front front of truck, the truck truck entered entered into striking the driver's driver's side of his vehicle. vehicle. his lane striking side of opposition, Campbell argues that collision appears appears to In opposition, Campbell argues that while while the video video of of the collision show that that the accident accident was caused by the unsafe lane lane change change by the tractor show was solely solely caused the unsafe tractor trailer, motion is premature premature as Lenius Lenius has not appeared appeared for a deposition. deposition. trailer, the the motion Helwig and Lenius Lenius oppose oppose the motion motion with an affirmation of counsel counsel and an J.S. Helwig affirmation of expert affirmation affirmation arguing arguing that issues of of fact Kirby was negligent. expert that issues fact exist exist as to whether whether Kirby was negligent. They argue that Lenius observed observed Kirby Kirby speeding after the They argue that there there is no evidence evidence that that Lenius speeding up after truck had passed passed Kirby's Kirby's vehicle. states that Lenius is no longer employee truck vehicle. Counsel Counsel states that Lenius longer an employee under the control control of of J.S. Helwig Helwig and therefore been produced produced for a deposition. deposition. under therefore has not been Helwig and Lenius Lenius submit submit an expert expert affidavit affidavit of of Donald Donald K. Eisentraut, Eisentraut, P.E. J.S. Helwig Eisentraut states states that that as observed observed on the dash dash cam video, video, Lenius Lenius checked checked the mirrors Eisentraut the mirrors lane to his right right before before attempting attempting a lane change change when when the of the the right front front of and the lane truck struck the driver side side of of the Kirby Kirby vehicle. Eisentraut states states that dash cam is vehicle. Eisentraut that the the dash truck struck the driver mounted high on the the windshield near the centerline of of the Eisentraut opines opines that windshield near the centerline the cab. Ei$entraut that mounted 11 In order entered entered May 13, 2019, this Court Court joined Action NO.2 fortrial. an order 2019, this joined Action Action NO.1 No. 1 & Action No. 2 for trial. 2 2 of 4 [*FILED: 3] WESTCHESTER COUNTY CLERK 06/09/2020 11:59 AM NYSCEF DOC. NO. 62 INDEX NO. 50124/2019 RECEIVED NYSCEF: 06/09/2020 Kirby v. J.S. ).5. Helwig Kirby Helwig & Son, LLC, LLC, Index Index No. 50124/2019 50124/2019 the Kirby Kirby vehicle maintain a position position off off the front right fender vehicle sped up to maintain front right fender of the tractor tractor which is a known known blind spot spot for commercial commercial motor motor vehicles. Eisenstraut states states that cab which vehicles. Eisenstraut that the view of the the dash dash cam does does not represent represent the driver's view camera is view of the driver's view since since the the camera placed actual dimensions of the vehicles vehicles placed remotely remotely from from the driver's driver's position. position. Using Using the actual dimensions of Eisenstraut that Lenius view of the Kirby Eisenstraut opines opines that Lenius did not have have a clear clear view Kirby vehicle vehicle as it remained in the truck's remained truck's blind spot. it Discussion Discussion proponent of a motion motion for summary judgment must make make a prima prima facie for summary judgment must facie The proponent showing of entitlement entitlement to judgment matter of law, tendering sufficient evidence evidence to showing judgment as a matter tendering sufficient eliminate any any material material issues issues of fact case (see Winegrad Winegrad v N. Y. Y. Univ. Med. eliminate fact from the case [1985]; Zuckerman City of of New New York, 49 NY2d NY2d 557, 562 Ctr., 64 NY2d 851, 853 [1985]; Zuckerman v City [1980]). [1980)). "Once this showing shifts to the party "Once this showing has been made, made, however, however, the burden burden shifts party opposing the motion motion for summary summary judgment produce evidentiary proof in admissible opposing judgment to produce evidentiary proof admissible form sufficient to establish establish the existence existence of material material issues issues of of fact require a trial of form sufficient fact which which require the action" action" (Alvarez (Alvarez v Prospect Prospect Hosp., [1986]; see Zuckerman City Hosp., 68 NY2d 320, 324 [1986]; Zuckerman v City of of New New York, 49 NY2d NY2d at 562). Vehicle provides, in pertinent pertinent part: Vehicle & Traffic Traffic Law 1128 provides, Whenever any roadway has been divided Whenever any roadway divided into two or more clearly marked traffic the the two more clearly marked lanes lanes for traffic following rules rules in addition addition to all others others consistent consistent following herewith shall shall apply: apply: herewith (a) A vehicle vehicle shall nearly as shall be driven driven as nearly practicable entirely shall practicable entirely within within a single single lane and shall not be moved moved from driver has not from such such lane until the driver first ascertained that such movement first ascertained that movement can be made with .safety. safety. made judgment as a matter Kirby demonstrated demonstrated prima prima facie matter of law by Kirby facie entitlement entitlement to judgment establishing was operating vehicle within within the the right traffic when when Lenius establishing that that he was operating his vehicle right lane lane of traffic Lenius made an unsafe unsafe lane change change from right lane (see (see Vehicle made from the left lane to the the right Vehicle & Traffic Traffic Law 1128[a]; Leonard v Pomarico, 137 AD3d 1085 [2d Dept 2016]; Rivera v Corbett, Law 1128[a]; Leonard Pomarico, AD3d 1085 Dept 2016); Rivera Corbett, 69 AD3d 916 [2d Dept Dept 2010]). issues of fact raised in opposition opposition as to Kirby's Kirby's AD3d 2010]). No issues fact were were raised Maller, 45 AD3d AD3d 566 [2d Dept The Court finds that that negligence negligence (see (see Shuman Shuman v Maller, Dept 2007)). 2007]). The Court finds the expert's that the Kirby vehicle was in Lenius' expert's opinion opinion that Kirby vehicle Lenius' blind spot spot is speculative. speculative. 3 3 of 4 [*FILED: 4] WESTCHESTER COUNTY CLERK 06/09/2020 11:59 AM NYSCEF DOC. NO. 62 INDEX NO. 50124/2019 RECEIVED NYSCEF: 06/09/2020 Kirby v.I.S. v. J.S. Helwig Helwig & Son, LLC, LLC, Index Index No. 50124/2019 50124/2019 Kirby Accordingly, Action No. for Accordingly, the motion motion of the the defendant defendant in Action NO.2,2, Robert Robert Kirby, for summary judgment, pursuant to CPLR dismissing the complaint complaint is GRANTED, GRANTED, summary judgment, pursuant CPLR 3212, dismissing and the complaint Action No. 2 is DISMISSED against Robert complaint in Action DISMISSED insofar insofar as asserted asserted against Robert Kirby. Compliance Part, Counsel for the remaining Counsel for remaining parties parties are directed directed to appear appear in the Compliance BOO, for for further further proceedings, proceedings, at a date room 800, date and time time to be provided. provided. Dated: Dated: White York White Plains, Plains, New New York 2020 June June 9, 9,2020 ALPHABETICAL MASTER MASTER LIST LIST - 2/Kirby 21Kirby v. J.S. Sons H: ALPHABETICAL J.S. Helwig & Sons 4 4 of 4 ... _.,j

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