James v Quigley

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James v Quigley 2020 NY Slip Op 34799(U) September 29, 2020 Supreme Court, Westchester County Docket Number: Index No. 59485/2018 Judge: Sam D. Walker 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 10/07/2020 03:12 PM NYSCEF DOC. NO. 85 INDEX NO. 59485/2018 RECEIVED NYSCEF: 10/07/2020 To the statutory To commence commence the statutory time for time for appeals appeals as of of right right (CPLR 55131a)), you (CPLR 5513la)), you are are advised advised to serve serve a copy copy of this order, of this order, with with notice notice of parties. of entry, entry, upon upon all all parties. SUPREME THE STATE YORK SUPREME COURT COURT OF THE STATE OF NEW NEW YORK WESTCHESTER WESTCHESTER COUNTY COUNTY PRESENT: SAM D. WALKER, PRESENT: HON. SAM WALKER, J.S.C. ------------------------------------------------------------------------------x ------------------------------------------------------------------------------x MARCIA MARCIA A. JAMES, JAMES, Plaintiff, Plaintiff, DECISION DECISION and ORDER ORDER Index Index No. 59485/2018 59485/2018 Seq# Seq # 2 & 3 -against-againstAction No. Action NO.11 CONNOR CONNOR PAUL PAUL QUIGLEY, QUIGLEY, KEVIN KEVIN QUIGLEY QUIGLEY and MICHAEL MICHAEL G. BEAUMONT, BEAUMONT, Defendants. Defendants. ------------------------------------------------------------------------------x ------------------------------------------------------------------------------x DERRICKA DERRICKA MITCHELL, MITCHELL, Plaintiff, Plaintiff, Index Index No. 65005/2018 65005/2018 -against-againstAction No. Action NO.22 MICHAEL G. BEAUMONT, MARCIA A. JAMES, and CONNOR PAUL QUIGLEY, Defendants. ------------------------------------------------------------------------------x MICHAEL G. BEAUMONT, Plaintiff, Plaintiff, Index Index No. 59335/2019 59335/2019 -against-againstAction No. Action NO.33 CONNOR PAUL PAUL QUIGLEY, QUIGLEY, CONNOR Defendant. Defendant. ------------------------------------------------------------------------------x ------------------------------------------------------------------------------x The following following papers papers were were received considered in connection connection with the motion motion The received and considered summary judgment Michael G. Beaumont: Beaumont: for summary judgment by Michael Notice of Motion/Affirmation Motion/Affirmation in Support/Exhibits Support/Exhibits A-J Notice Affirmation Opposition Affirmation in Opposition Affirmation Opposition/Exhibit A Affirmation in Opposition/Exhibit Reply Affirmation Reply Affirmation 1 of 8 [*FILED: 2] WESTCHESTER COUNTY CLERK 10/07/2020 03:12 PM NYSCEF DOC. NO. 85 INDEX NO. 59485/2018 RECEIVED NYSCEF: 10/07/2020 The following following papers papers were were received received and considered considered in connection connection with with the the motion motion The Marcia A. James James for summary summary judgment the issue issue of of liability liability and to strike strike the first first by Marcia judgment on the second affirmative affirmative defenses defenses of of Connor Connor Paul Quigley Quigley and Kevin Kevin Quigley Quigley and the first first and second affirmative defense defense of of Michael Michael G. Beaumont: Beaumont: affirmative Notice of of Motion/Affirmation/Exhibits Motion/Affirmation/Exhibits A-K A-K Notice Affirmation in Opposition Opposition Affirmation Upon the the foregoing, foregoing, it is ordered ordered that that the the Beaumont's Beaumont's and motions motions are both Upon granted. granted. Factual and Procedural Procedural Background Background Factual Action 1, 2 and 3 are all personal personal injury injury actions actions arising arising out out of of an automobile automobile Action accident which which occurred occurred on August August 5, 2017. 2017. The The first first action action was was commenced commenced on June June 18, accident 2018, and the defendants defendants served served and filed their their answers, answers, joining issue. The The second second action action 2018, joining issue. was commenced commenced on September September 25, 25,2018, and the the defendants defendants served served and filed an answer, answer, was 2018, and joining issue. Action Action 1 and 2 were were consolidated consolidated for for the the purpose purpose of of a joint pursuant to joint trial, pursuant joining issue. this Court's Court's Decision Decision and Order Order dated dated June June 18, 2019. 2019. Action Action 3 was was commenced commenced on June June this 2019 and was was consolidated consolidated with with Actions1 Actions1 and 2 for for joint trial and discovery, discovery, pursuant pursuant 20, 2019 joint trial So-Ordered Stipulation Stipulation (Lefkowitz, (Lefkowitz, J.), dated dated December December 3, 3,2019. 2019. to a So-Ordered The subject subject accident accident occurred occurred at the intersection intersection of of Bedford Bedford Avenue Avenue and The Grandview Avenue Avenue in Mount Mount Vernon Vernon and involved involved the vehicle vehicle operated operated by the the defendant, defendant, Grandview Connor Paul Quigley Quigley ("Quigley"), ("Quigley"), traveling traveling westbound westbound on Bedford Bedford Avenue Avenue and was was Connor controlled by a stop stop sign and the vehicle operated by the defendant, defendant, Michael Michael G. Beaumont Beaumont controlled vehicle operated ("Beaumont"), traveling southbound southbound on Grandview Grandview Avenue Avenue and not controlled controlled by a stop ("Beaumont"), traveling sign. The The plaintiff plaintiff in Action Action 1 and a defendant defendant in Action Action 2, Marcia Marcia James ("James") and James ("James") plaintiff in Action Action 2, Derricka Derricka Mitchell Mitchell ("Mitchell") ("Mitchell") were passengers in the vehicle were passengers vehicle the plaintiff 2 of 8 [*FILED: 3] WESTCHESTER COUNTY CLERK 10/07/2020 03:12 PM NYSCEF DOC. NO. 85 INDEX NO. 59485/2018 RECEIVED NYSCEF: 10/07/2020 operated operated by Beaumont. Beaumont. Beaumont, by his attorney, attorney, now now files files a motion motion pursuant pursuant to CPLR CPLR 3212,seeking 3212,seeking an Beaumont, order granting granting summary summary judgment, dismissing the the complaint complaint against against him filed by James James order judgment, dismissing cross-claims in Action Action 1; and dismissing dismissing the the complaint complaint filed filed against against him by Mitchell Mitchell and all cross-claims cross-claims in Action Action 2, on the grounds grounds that that there there is no evidence evidence that that Beaumont Beaumont and all cross-claims acted acted negligently. negligently. Quigley Quigley and Kevin Kevin Quigley, Quigley, by their their attorney, attorney, oppose oppose the the motion, motion, arguing arguing that that Quigley testified testified at his deposition deposition that that he stopped stopped at the stop stop sign sign and it was was his intention intention Quigley proceed straight straight on Bedford Bedford Avenue. Avenue. He further further testified testified that that his vision vision of of Grandview Grandview to proceed Avenue was was impeded impeded by cars cars parked parked along along the parking parking lands lands and he stopped stopped for for one one Avenue second before before inching inching forward forward to see around around the parked parked cars. He stated stated that that he was was second moving moving forward forward slowly slowly and was was not in the intersection intersection when when he saw saw the the Beaumont Beaumont vehicle vehicle Grandview Avenue Avenue and stopped stopped his vehicle. vehicle. Quigley Quigley stated stated that that when when he stopped, stopped, the on Grandview just pass front front of his vehicle vehicle was was at the beginning beginning of of the the intersection intersection with with the the front front wheels wheels just pass white stop stop line adjacent adjacent to the stop stop sign and at that that point, he observed observed the the Beaumont Beaumont the white vehicle flying flying out out at the the last second second and he stopped stopped his vehicle. vehicle. He estimated estimated the the speed speed vehicle Beaumont vehicle vehicle to be close close to 40 miles miles per per hour. Quigley Quigley further further stated stated that that had of the Beaumont Beaumont moved moved his vehicle vehicle left, he could could have have avoided avoided the collision, collision, but instead instead he sped Beaumont the time time of of impact, impact, Quigley's Quigley's vehicle vehicle was was at a complete complete stop. up and at the Mitchell, by her her attorney, attorney, also also opposes opposes Beaumont's Beaumont's motion, motion, arguing arguing that that at the the time time Mitchell, of of the accident, accident, she was was a restrained restrained rear rear seat seat passenger passenger in the the motor motor vehicle vehicle driven driven by Beaumont and the disputed disputed fact fact is the degree degree of of culpability culpability to be attached attached to both Beaumont Beaumont and Quigley. Quigley. Mitchell's Mitchell's attorney attorney asserts asserts that that Beaumont Beaumont testified testified that that he first first Beaumont 3 of 8 [*FILED: 4] WESTCHESTER COUNTY CLERK 10/07/2020 03:12 PM NYSCEF DOC. NO. 85 INDEX NO. 59485/2018 RECEIVED NYSCEF: 10/07/2020 observed Quigley's Quigley's vehicle vehicle moving moving and coming coming through through the the stop stop sign. He then then testified testified observed that he took took his time time through through the the intersection intersection and when when he observed observed the the vehicle vehicle entering entering that intersection, he took took his foot foot off off the the gas gas and the front front of of his vehicle vehicle struck struck the the side side of of the intersection, Quigley's vehicle. vehicle. Quigley's Beaumont argues argues that that neither neither opposing opposing party party raised raised a question question of of fact fact to In reply, Beaumont justify denial of of a grant grant of of summary summary judgment Beaumont. His attorney attorney argues argues that that judgment to Beaumont. justify denial Mitchell's opposition opposition is demonstrably demonstrably false false and speculation speculation as to whether whether Beaumont Beaumont could could Mitchell's have avoided avoided being being T-boned T-boned in an intersection intersection where where he had the the right of of way way is insufficient insufficient have create an issue issue of of fact. to create James, by her attorney, attorney, also also files files a motion motion for for an order order granting granting summary summary judgment James, judgment favor and against against Quigley Quigley and Kevin Kevin Quigley Quigley and striking striking the affirmative affirmative defenses defenses in her favor alleging she assumed assumed the the risk, that that she engaged engaged in wrongdoing wrongdoing or alleging alleging culpable culpable alleging conduct, contributory contributory negligence negligence and/or and/or assumption assumption of of risk attributable attributable to James. James. Her conduct, attorney argues argues that that those those defendants defendants were were negligent negligent as a matter matter of of law law and such attorney negligence was was the the proximate proximate cause cause of the accident. accident. James James asserts asserts that that he was was an negligence innocent passenger passenger and is not restricted restricted by potential potential issues issues of comparative comparative negligence negligence innocent between the the drivers drivers of the the two vehicles. vehicles. between James further further argues argues that that Quigley Quigley violated violated Vehicle Traffic Law§ Law ~ 1142[a}, 1142[a], by failing failing James Vehicle Traffic yield the the right of of way way to an oncoming oncoming vehicle vehicle and therefore, therefore, summary summary judgment judgment is to yield warranted. She She also also contends contends that that she is not responsible responsible for for the the accident accident and thus thus the warranted. affirmative defenses defenses have have no merit. merit. affirmative opposition, Quigley Quigley and Kevin Quigley, Quigley, by their their attorney, attorney, oppose oppose the motion, motion, In opposition, proffering the same same arguments arguments utilized utilized to oppose oppose Beaumont's Beaumont's motion motion and also also noting noting that that proffering 4 of 8 [*FILED: 5] WESTCHESTER COUNTY CLERK 10/07/2020 03:12 PM NYSCEF DOC. NO. 85 INDEX NO. 59485/2018 RECEIVED NYSCEF: 10/07/2020 vehicle operated operated by Beaumont Beaumont was was owned owned by James. James. The The attorney attorney asserts asserts that that based based the vehicle upon the the testimony testimony provided, provided, James James is not simply simply an innocent innocent passenger, passenger, but can be upon found to have have negligently negligently entrusted entrusted her her vehicle vehicle to Beaumont. Beaumont. found DISCUSSION DISCUSSION A party party seeking seeking summary summary judgment bears the the initial initial burden burden of of affirmatively affirmatively judgment bears demonstrating its entitlement entitlement to summary summary judgment matter of law (see Winegrad Winegrad v demonstrating judgment as a matter New York Univ. Med. Ctr., 64 NY2d NY2d 851, 853 [1985]; [1985]; Alvarez Prospect Hospital, Hospital, 68 New Alvarez v Prospect NY2d 320 [1986]). [1986]). NY2d order to establish establish a prima prima facie facie entitlement entitlement to judgment matter of of law, it is In order judgment as a matter incumbent upon upon the movant movant to come come forward forward with evidentiary evidentiary proof, proof, in admissible admissible form, incumbent demonstrating the the absence absence of of any triable triable issues issues of fact fact on the the issue issue of of liability liability {see (see Franks Franks demonstrating Real Estate Estate Holding Holding Corp., 16 AD3d AD3d 619 619 [2d Dept Dept 2005], 2005], citing, citing, We/wood Welwood v v G & H Real Association for Children Children with Down Down Syndrome, Syndrome, 248 248 AD2d AD2d 707, 708 708 [2d Dept Dept 1998]). 1998]). Association for this case, case, the the evidence evidence demonstrates demonstrates Beaumont's Beaumont's and and James' James' prima prima facie facie In this entitlement to judgment matter of of law by establishing establishing that that Quigley's Quigley's vehicle vehicle entitlement judgment as a matter proceeded into an intersection intersection controlled controlled by a stop stop sign sign without without yielding yielding the the right right of of way way proceeded approaching vehicle vehicle (see Vehicle Vehicle and Traffic Traffic Law§ Law S 1142[a]), 1142[a]), thereby thereby shifting shifting the to the approaching burden to Quigley Quigley to demonstrate demonstrate the existence existence of a factual factual issue issue requiring requiring a trial trial {see (see burden Goemans v County County of of Suffolk, Suffolk, 57 AD3d AD3d 478,479 478, 479 [2d Dept Dept 2008] 2008] ["the County County established established Goemans prima facie facie entitlement entitlement to judgment matter of law law by evidence evidence that that Sellers Sellers failed failed its prima judgment as a matter to yield yield the the right-of-way right-of-way upon upon entering entering the the subject subject intersection intersection in violation violation of of Vehicle Vehicle and Traffic Law§ Law S 1142(a) 1142(a) and thus thus was was negligent negligent as a matter matter of of law."]; law."]; Thompson Thompson v Schmitt, Schmitt, Traffic NYS.2d 606, 607 607 [2d Dept Dept 2010) 2010] [Plaintiff [Plaintiff established established prima prima facie facie entitlement entitlement to 902 NYS.2d 5 of 8 [*FILED: 6] WESTCHESTER COUNTY CLERK 10/07/2020 03:12 PM NYSCEF DOC. NO. 85 INDEX NO. 59485/2018 RECEIVED NYSCEF: 10/07/2020 defendant the defendant demonstrating "that judgment matter of issue of liability liability by demonstrating "that the of law on the issue judgment as a matter negligently entered driver, who stop sign at the intersection intersection ... ...negligently entered the with a stop faced with was faced who was driver, was this was that this vehicle and that approaching vehicle intersection way to his approaching right of way yielding the right without yielding intersection without accident"]) the accident"]) the proximate cause cause of the sole proximate the sole while vehicle at a stop sign, while The fact that Quigley Quigley was required to stop his vehicle was required fact that The established stop, established Beaumont's route requirement to stop, encumbered by a requirement was not encumbered travel was of travel route of Beaumont's Adler, see also, Szczotka .; see that Quigley failed Beaumont1 1 (/d. (Id ..; Szczotka v Adler, way to Beaumont the right of way failed to yield the that Quigley yield the right-of-way 291 AD2d Dept 2002])2. "A driver driver who right-of-way after after stopping stopping who fails to yield 444 [2d Dept AD2d 444 § 1142(a) Traffic Law at a stop Law S 1142(a) and is Vehicle and Traffic of Vehicle violation of traffic is in violation controlling traffic stop sign controlling 2007]; 468 [2d Dept 468, 468 AD3d 468, negligent as a matter matter of Gergis v Miccio, Miccio, 39 AD3d Dept 2007]; of law" (see Gergis negligent 2008]). Dept 2008]). 650 [2d Dept AD3d 650 see also Maliza Puerto-Rican Transp. Corp., 50 AD3d Ma/iza v Puerto-Rican which by the proper that which Furthermore, Quigley proper use of his obligated to see that was obligated Quigley was Furthermore, was the right-of-way, with the the driver senses have seen, Beaumont, as the driver with right-of-way, was seen, and Beaumont, should have senses he should yield (see required him to yield which required laws which entitled to anticipate (see traffic laws obey traffic would obey Quigley would that Quigley anticipate that entitled 2005]). 470 [2d Dept Moussouros Dept 2005]). 469, 470 AD3d 469, Moussouros v Liter, 22 AD3d officer, police officer, proceed by a police directed to proceed VTL provides that when directed "Except when that "Except specifically provides §1142 specifically VTL S1142 eleven section by required as stop shall every driver vehicle approaching sign shall stop required section eleven stop a approaching vehicle a of every driver vehicle any to way of right the yield hundred seventy-two having stopped right of way vehicle shall yield stopped shall after having seventy-two and after hundred approaching so which is approaching highway or which which another highway from another intersection from entered the intersection which has entered when such time when the time closely on said highway highway as to constitute constitute an immediate immediate hazard hazard during during the closely § 1142[a]). driver moving across intersection" (VTL (VTL S 1142[a]). within the intersection" across or within driver is moving 2 the issue judgment on the In Szczotka Szczotka v Adler, plaintiff moved moved for summary summary judgment issue of liability liability the plaintiff Adler, the defendant the opposition, the defendant stop sign. In opposition, asserting the stop stop at the failed to stop defendant failed that the defendant asserting that speeding. been speeding. have been must have plaintiff must asserted that the plaintiff stop sign and that stop at the stop that he did stop asserted that at the stopped defendant the whether The Second Department held that "[r]egardless whether the defendant stopped of "[r]egardless that The Second Department Law§ Traffic Law S Vehicle and Traffic violated Vehicle stop plaintiff established defendant violated that the defendant established that the plaintiff stop sign, the 444 [2d AD2d 444 Adler, 291 AD2d 1142(a), by failing her"(Szczotka v Adler, way to her"(Szczotka of way right of yield the right failing to yield 1142(a), 6 of 8 Dept 2002]). 2002]). Dept [*FILED: 7] WESTCHESTER COUNTY CLERK 10/07/2020 03:12 PM NYSCEF DOC. NO. 85 INDEX NO. 59485/2018 RECEIVED NYSCEF: 10/07/2020 opposition, the affirmations affirmations submitted submitted contending contending that that there there are different different In opposition, versions of the accident, accident, fail to create create any issues issues of fact fact with regard regard to Quigley's Quigley's liability. liability. versions Quigley testified testified that that his vision vision of Grandview Grandview Avenue was. impeded impeded by parked parked cars and Quigley Avenue was· that he stopped stopped for for one one second second and then then proceeded proceeded to inch forward forward because because he could that around the parked parked cars and saw saw Beaumont's Beaumont's vehicle vehicle coming coming at 30 to 40 miles miles not see around Beaumont testified testified that that he was driving below below 30 miles miles per hour, when when Quigley's Quigley's per hour. Beaumont was driving vehicle entered entered the intersection intersection and his vehicle vehicle was was T-boned. T-boned. Mitchell Mitchell testified testified that that she vehicle was sitting sitting in the rear passenger passenger seat seat of the vehicle vehicle Beaumont Beaumont was was operating operating and was observed Quigley's Quigley's vehicle vehicle moving moving and impacted impacted their their vehicle vehicle after after a few few seconds. seconds. She observed testified that that Beaumont Beaumont was was traveling traveling at approximately approximately 25 miles miles per per hour hour when when she testified observed Quigley's Quigley's vehicle. vehicle. None None of the testimony testimony provided provided by any of the parties parties creates creates observed issue of fact fact as to the proximate proximate cause cause of the accident accident nor nor to indicate indicate that that Quigley Quigley did an issue violate the Vehicle Vehicle Traffic Traffic Law. not violate Accordingly, based upon the foregoing, foregoing, it is Accordingly, based ORDERED that that Beaumont's Beaumont's motion motion for summary summary judgment dismissing the ORDERED judgment dismissing complaints and all cross-claims cross-claims against against him, is granted; granted; and it is further further complaints ORDERED that that James' James' motion motion for summary summary judgment dismissing the complaint complaint ORDERED judgment dismissing against her and also also dismissing dismissing Quigley's Quigley's first first and second second affirmative affirmative defenses defenses and against Beaumont's first first affirmative affirmative defense defense as to James, James, is granted. granted. Beaumont's The parties parties are directed directed to appear appear before before the Settlement Settlement Conference Conference Part on a The date to be determined. determined. date 7 of 8 [*FILED: 8] WESTCHESTER COUNTY CLERK 10/07/2020 03:12 PM NYSCEF DOC. NO. 85 INDEX NO. 59485/2018 RECEIVED NYSCEF: 10/07/2020 The foregoing foregoing constitutes constitutes the Decision Decision and Order Order of of the the Court. Court. The Dated: White White Plains, Plains, New New York York D~ted: September 29, 2020 2020 September ['aIK .Q ~ WALKER, J.S.C. J.S.C. HON. SAM D. WALKER, 8 8 of 8

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