Martinez v Murphy

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Martinez v Murphy 2020 NY Slip Op 34965(U) May 28, 2020 Supreme Court, Suffolk County Docket Number: Index No. 16-620093 Judge: George M. Nolan 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. INDEX NO. 620093/2016 FILED: SUFFOLK COUNTY CLERK 05/28/2020 04:10 PM NYSCEF DOC. NO. 220 RECEIVED NYSCEF: 05/28/2020 SHORT FOIU, t O RDER INDEX o. CAL. No. 16-620093 19-0 l 525MV SUPREME CO RT - ST ATE OF EW YORK I.A .. PART 5- - S FFOLK CO TY P R E S ENT : MOTION DATE MOTIO DATE ADJ . DATE Mot. eq. # 00-l # 005 # 006 - 11 -6- 19 (004 &005) 1-9-20 (006 & 007) 2-6-20 MG MG MotD # 007 - MG --------------------------------------------------------------X LUlS MARTINEZ. as Administrator of the Estate of GE A MARTIN Z. decea ed . and LUIS MARTINEZ, indi i<lually, GRUENBERG KELLY DELLA Attorney fo r Plaintiff: 700 K oeh le r A ven ue Ronkonkoma, cw York I I 779 PILUNGER MILLER TARALLO, LLP Attorney for Defendant Gorsky 555 Taxtcr Roa d, 5th Floor Plaintiff , Elmsford, cw York 10523 - agam - OR J. MURPHY , DONNA L. MURPIIY, LRWJN L. GORSKY and ZACHARY 0 . H ICKS, CO DESE A SWEE 1EY , LLP Attorney for Defendan ts Murphy 1500 Lakeland A venue Bohem ia, New York 1171 6 BELLO & LARKIN Attorney for Defendant Hicks 150 loto r Parkway, Suite 405 Hauppauge, ewYorkll7 -5108 Defendants . ---------------------------------------------------------------X Upon the fo llowing papers read on this e-fikd moti on for s ummary j udgment ; otice of Motion/ O rd er ro Show Cause (004) by defend ant Zachary D. Hi cks. dated October I.2019, and sup po11ing papers; Notice of Motion/Order to Show Ca use(00:) by defendaut Irwin L. Gor. ky, dated October 18. 2019. and su ppo rting papers : .:-.Joricc of Mori I Order to Sho\l' Cause (006) by defendants Connor J. Murp hy and Donna L. Murphy. dated , ov1:mber2 l.2 01 9. and upporting paper (inc luding a Memorandum o f Law. dated November 26, 20 19 : 1'oticc of Cross Motion (007) by defendan t Irwin L. Gorsky. dated December 5. 2019 and [* 1] 1 of 6 FILED: SUFFOLK COUNTY CLERK 05/28/2020 04:10 PM NYSCEF DOC. NO. 220 INDEX NO. 620093/2016 RECEIVED NYSCEF: 05/28/2020 Martinez v Murphy Index o. 16-620093 Page 2 supporting papers ; Affirmation in Opposition (004 ). (005), and (00 6) by plaintiff. dated January 2. 2020 . and suppo11ing pap rs: Affirma ti on in Opposition (00 7) bv plaintiff. dated January 7. 2020, and supporting papers: Affirmation in Oppositio11 (005) by defendant Connor J. Murph y and Donna L. Murphy. dated January 6. 2020 .and upporting pape rs: Replying Affi rmation (004 by defendant Conno r J. Murp hy and Donna L. Murph y and defendant Zachary D. Hi k . dated January7. 2020: Rep lying Affinnation (005) by defendant l1win L. Gorsky, dated February 5. 2020; Repl ying Afli nnation (006) hy defendants, Connor J. MuIJ?hY and Donna L. Mu1phy. dated January 29, 2020; Replying Allinnation (005) and (007) by defendant Irwin L. Gorsky. dated February 5, 2020 (1111d 1,ftc, ltc,,1 ir,g co1:111.<d~· rnal 1t1 6 cu11c11L\ i11 .~t,ppo11 0F .111d o ppo~ed to the 11,otio11); it is ORDERED that the motion (004) by defendant Zachary D. Hicks. the motion (005) by defendant Irwin L. Gorsky, Lhe motion (006) by defendants Connor J. Murphy and Donna L. Murphy, and tbe ross motion (007) by defendant Irwin L. Gorsky are consol idated herein for dispo ition ; and it is further ORDERED that the motion (004) by defendant Zachary Davidson Hicks s/h/n Zachary D. Hi cks for an order pursuant to PLR 3212, granting summary judgment in hi · favor on the i ue or liabi lity. and di mi si ng the ompla int and any cro claim as ert d against him i granted; and it is further ORDERED that the motion (005) by defendan t Lrwin L. Gor ky for an order pursuant to CPLR 3212, granting summary judgment in his favor on chc issue ofliabi lity, and dismi,sing the complaint and any cross claims asserted against him is granted: and it is further ORDERED that the motion (006) by defendant oru1or Murphy /h/a Connor J. Murphy and Donna L. Murphy for an order pursuant to CPLR 3212 granting summary j udgm ent dismissing plaintiffs claim for damages related to con cious pai n and suffering of the decedent is granted to the extent indicated herein ; and is otherw ise denied ; and it is further ORDERED that th e cross moti on (007) by defendant Irwin L. Gorsky. for an order pursuant lo CPLR 32 12, granting ummary judgment di mis ing plaintiffs claim for damages re lated to consciou pain and suffering of the decedent i · den i d. Plaintiff. Luis Martinez, the administrator of thee tate or Genna Martinez, commenced this wrongful death action against defendant to reco ver damages for, in ter alia, the conscious pa in and suffering Genna Martinez allegedl y sustained as a re ult of a motor vc:: hicle acci J ent that occurred on Route 347, near the inter ection wi th yl an Lane, in the Town of Brookhaven on December 26. 2014 , at approximately 9:40 p .rn . It is undisput ·d that there were three vehicles involved in the ac idem. and that Route 347 is a four-la ne bighway with two lanes of travel in either direction, tw-ning lane, and a traffic control device at the intersection with Sylvan La ne. The accident allegedly occurred when a vehicle operated by Connor J. Murphy (Murphy) and owned defendant Donna Murphy made a left tum or U-turn and collided with the vehicle owned and operated by defendant lrwin L. Gorsky (Gorsky). Murphy's vehicle then entered into the left lane of travel where it collided with a vehicle owned and operated by defendant Zachary Hicks. Plaintiffs daughter, Genna Martinez, was the front- scat pass~nger in the vehicle operated by Murphy. There were no witne es to the accident. Hicks and Gor ky now move for summary judgment dismis ·ing the complaint and any cros claims asserted agains t them . argu ing that Lhey were not negligent in the happening of the accident. In uppo11 of their motion . they submit inter alia, copies of the pleading , the bill of pa1iiculars, and the parties· deposition testimony. ln opp ·ition to them tions, plaintiff argues that a rriable issue exi ts a to whether Hicks and Gorsky were negligent in cau ing the accident. [* 2] 2 of 6 FILED: SUFFOLK COUNTY CLERK 05/28/2020 04:10 PM NYSCEF DOC. NO. 220 INDEX NO. 620093/2016 RECEIVED NYSCEF: 05/28/2020 Martinez v Murphy Index No. 16-620093 Page 3 At his deposition, Hick. testified t.hatjust prior to the accident, be was traveling westbound in the on Route 347, at approximately 30 to 35 mph , near the intersection with Sylvan Lane. Hicks lane left as he proceeded into the intersection the traffic light was green, and that he observed that testified stopped,· perpendicular'' to his veh icle. on Route 347 . He te. tified that vehicle Murphy's to rno seconds later the front end of his vehic l struck the pa cnger side of one approximately Murphy's vehicle. The impact caused his air bags to deploy and hi vehicle co move approximately one to two car lengths away from Murphy s vehicle. Hicks testified that orsky's vehicle was ''slightly'" the impact ahead of his vehicle in the right lane of travel on Route 34 7, and that he heard Lhc noise between Gor ky and Murphy's ehicl a" econd" prior to his accident. He testified that he did not ob erve Murphy" ehicle turn left or make a U-turn at the intersection wi th Syl an Lane. Finally, Hick · testified that he did not hear the sound · of" a horn or screeching brake prior to hi accident. or At his deposition, Murphy testifi ed that on the day of the accidem he and decedent were traveling eastbound on Route 34 7 on th ir way to Port Jefferson. Murphy tc ·tified that he observed a Holiday Inn prior to tbe inters ction with ylvan Lane, and that he did not ha e any memory of the accident. He testified that as a result of the accident he uffered a concussion, brain bleeding and facial fracture. According to Murphy, he recalled that after the accident he regained consciousness. looked around his vehicle, observed broken glas , and that there were red and blue lights illuminating by police vcbjcJes at the scene of the accident. Murphy further testified Lhat he observed that Lhe decedent wa uncon cious. not moving, and "slumped' in the front seat of the veh icle. He did not recall that he turned left or made a U-turn into the intersection with Sylvan Lane prior to the accident. Murphy testified that he again regained consciousness when he was at the hospital and did not recall speaking to anyone . He did not recall stating that he and decedent "looked'' at each other as the vehicle rotated after the accident. Murphy testified that the decedent remained uneonsciou and that he was informed by someone that he died approximately two or three days aft.er the accident _ At his deposition, Gor. k--y testified th at he and nonparty Karen Wool were trave lin g westbound in the right lane on Route 347 at approximately 40 miles per hour in light traffic. Gorsky testified that when he proceeded into the intersection with Sylvan Lane he observed the face of Murphy from the left sid vfow mirror of his vehicle, approximately five feet away, traveled directly into the path of his vehicle. He tesLified that approx.imately two seconds later, Murphy' vehic le struck the driver ' side bi vehicle. r the time of the accident the traffic light was green for tbe westbound traffic on Route 347.. Gorsky testified that a second later, he heard the impact between Murphy's vehicle and Hicks' vehicle prior to colliding with a utility pole but that he did not observe the collision. He testified that he did not hear any sound of a horn or brakes screechin g, and that he did not '·expect" Murphy' vehicle to turn left into the intersection with Sylvan Lane prior to the accident. Finall y, he te tifi d that he did not ob erve the deced nt in Murphy's vehicle. or At her deposi tion , Karen Wool testified that she was riding as a front seat passenger in th e vehicle operated by Gorsky, whic h wa trave ling we. tbound on Route 34 7, when it was struck on the left driver·s side by Murphy's vehicle near the inter ection with Sylvan Lane. Wool testified that the impact was heavy and caused Gorsky's veh icle to strike a utiliry pole. She testified that she did not hear any sou nds of a horn , brakes screeching, or any other impacts on the roadway ptior to her accident. ..·[* 3] 3 of 6 FILED: SUFFOLK COUNTY CLERK 05/28/2020 04:10 PM NYSCEF DOC. NO. 220 INDEX NO. 620093/2016 RECEIVED NYSCEF: 05/28/2020 Martinez v Murphy 1ndex o. 16-620093 Page 4 It is well ettled that a party moving for summary judgment must make a prima facie ·hawing of entitlement to judgment a matter of law, offering sufficient evidence in admis ible form to demonstrate the absence of any material i ·sues of fact (Alvarez II Prospect Ho~p .. 68 NY2d 320, 508 NYS2d 923 r 1986]; Zuckerman v City of -:Yew York , 49 NY2d 557 , 427 NYS2d 595 r19801). The failure to make uch a prima facie case showing requires the denial of the motion regardles of the sufficiency of the opposing papers (Winegrad v New York Univ. Med. Ctr .. 64 Y2d 851, 487 NYS2d 316 l 1985]). However, upon the movant establishing a prima facie showing of entitlement to a summary judgment, the burden then shifts to the opponent to offer evidence in admissible form ·ufticient to establish a material issue of [a t requiring a Lrial of the action (A lvarez v Prospect Hosp. . upra: Zuckerman v City of ew York, supra). Vehicle and Traffic Law§ 1128 states that '·a vehicle hall be driven as nearly as practicable entirely with a single Ian and shall not be moved from uch lane until the driver ha first ascertained that uch movement can be made with safety." Further, Vehicle and Traffic Law ~ 1141 requires a motorist intending to make a left turn inlo an intersection to yield the right or way to any vehicle approaching from the opposite direction which is within the intersection or so close as to con titute an immediate hazard. A violation of the Vehicle and Traffic Law con, titutes negligence as a matter of law ( ee Atti v Speller, I 3 7 AD3d 1176 28 YS3d 699 [2d Dept 20 I 6]; Jforeno v Gomez. 58 AD3d 611. 872 YS2d 143 [2d Dept 2009]; Spivak v Erickson, 40 AD3d 962, '36 NYS2d 676 (2d Dept 2007]). Further, all motorists have a duty to see what they sbonld have seen and use n.:asonable care to avoid a collision with another motori t (see Stiles v County of Dutchess, 278 AD2d 304, 717 YS2d 325 [2d Dept 2000]). A motorist with the right of way is entitled to anticipate that other motori ts will obey traffic laws requiring him or her to yield (. ee Lock v Garber, 69 AD3d 814. 893 NYS2d 233 (2d Dept 20J 0] ; Bemer v Koegel, 31 AD3d 591. 819 NYS2d 89 [2d Dept 2006]; Morehack v Mesquita, 17 AD3d 420, 793 YS2d 148 l2<l Dept 2005J). In addition, a motorist with th right of way who has only . econds to react to a vehicle that has failed to yield is not comparatively negligent in failing to avoid the collision (see Socci v Levy. 90 AD3d I 020, 935 NY 2d 332 [2d Dept 2011 ]; Yelder v Walters, 64 AD3d 762, 883 NYS2d 290 [2d Dept 2009]; Berner v Koegel, supra). Here, Hicks' and Gorsky's submi sions are uffi cient to e tab li ha prima facie case of entitlement to ummary judgment. The testimony demonstrated that Murphy failed to yi ld the right or wax to Hicks' and Gorsky's oncoming vehicles and turned directly into thei.r path of travel when it was uns,afe to do so, and that they were not comparatively at fault in the happening of the accident (see Rohn v Ary, 167 AD3d I054, 91 rys3d 256 [2d Dept 2018]); Socci v levy: 90 AD d I 020. 935 YS2d 332 [2d Dept 2011 ]); Yelder v Walters, supra ; Moreno 1• Gomez .. s11pro). In opposition plaintiff fai led to raise a triable issue of fact as to whether Hicks and G rsky were comparatively at fault in causing the accident. inasmuch as they had the right of way. Hicks and Gor. ky w re entitled to anticipate tbat Murphy would obey the traffic laws requiring him to yield and allow their vehicle to pas ' prior to making a left tum or U-Tum prior to entering the intersection with Sylvan Lane. Accordingly. their motions for summary judgment dismi sing the complaint again t them are granted The Murphy defendants also move for summary judgment in their favor, dismissing the claim for con cious pain and suffering against them . arguing that there i no evi dence that the decedent uffered [* 4] 4 of 6 FILED: SUFFOLK COUNTY CLERK 05/28/2020 04:10 PM NYSCEF DOC. NO. 220 INDEX NO. 620093/2016 RECEIVED NYSCEF: 05/28/2020 Martinez v Murphy Index No. 16-620093 Page 5 any conscious pain and su ffe ring following the subject accident. 1n upport of th e moti on, they subm it, inter alia, the pleadings, the bill of particulars, the parties' deposi tion testim ny. a certified copy of the Police Accident Report (MY-104) , a certified copyof1he Police Report for Fatal Vehicle Accident, and an expert a ffim1ation by Stuaii L. Dawson, M.D. Gorsky al o moves, separately for summary j udgment dismi - ing Lhc claim for conscious pain and suffering aga inst him. In support, Gorsky' s submits, inter a lia , the plead in g ·, and an affirmation by his attorney that adopts the record submitted in the m otion by Murphy. As summary j udgm ent di. missing the complaint against him i granted, Gorsky' motion related to the claim for conscious pain and uffering is denied as mool. In a wrongful death action, a plaintiff asserting a claim for consciou pan and suffering must establ ish a a th re hold matter that the decedent was con cious for a period of tim e after th e ubject accident (see Cummins v County of Onondaga, 84 NY 2d 322,324.618 NYS2d 615 [1994); Phiri v. 'Joseph, 32 AD3d 922, 822 YS2d 573 [2d Dept 2006]). Howeve r, a defe ndant who mo ves for ummary judgement has th e initial burden of making a prima faci show ing that the dec edent did not endure conscious pain and utl ring and pre-impact ten-or ( ee Kevra v Vladagan 96 AD3d 05, 949 NY 2d 64 [2d Dept 2012); Phiri v Joseph , supra ; Schild v Kbrglsley, 5 Ad 3d I 03. 773 Y 2d 20 [ I st Dept 2004). 1n order toe tablish a prima facie entitlement to judgment as a matter of law, it was incumbent upon the defendant to come fo rward with cvidentiary proof: in admissible form, demonstrating the absence of any triable is ues of fac t. Here, the Murphy defendants e tab Ii ·hed th eir prima facie entitlem ent to su mmary j udgment dismissing plaintiffs claim for conscious pain and offering by s ubmitting evide nce that the decedent immediately lo t consciousness and died a a result of th e acciden t(. ee Cummins,, County of Onondaga , 4 NY2d 322 6 18 S2d 6 15 [ 19941 ; Kel'ra v Vladagin supra; Phiri 11 Joseph , upra). Defendants submitted depo ition testimony by nonparry witne, s hristopher yers, a paramedic, who testified that in approximately two minutes after th e collision, he observed that decedent suffered head trauma, and was unresponsive . He further testified that decedent was u• co n ci ous with a Gia gow Coma level S o re of three w hi ch indicated that she was not conscious for anytime fol lowing the accident. Additionally. the affi rmation by Stuart L. Daw on. M .D.. stated that based on hi rev iew, not limited to the police report, the PRC Terryville Fire department repo rt and Stony Brook Hospital medica l records, it was hi s opin ion , to a degree of reasonable certainty, th at the decedent suffered no conscious pain or suffering as a result of the accide nt. He avers that decede nt had com minuted depre . ed kull fra ctures and brain lacerations. and that th e cause of her dea th \ a ano:xic encephalo pathy. due to head injury. He opined that she was instantaneously rendered unconscious upon impact ben..,een the vehicles. Dawson aver that decedent never showed any neuro logical improvement during hospitalization and was pronounced brain dead on December 28, 2014. ln opposition, plain tiffs failed to establish that the decedent was conscious for a period of time after the ubject accident (see Cummins v County of ()n otidaga, supra). Accordingly. the branch of the motion by the Murph y defe ndants for summary judgment dismissing the claim for conscious pain and uffering i granted. , Howeve r. the Murphy defendant ' su bmissions fa iled to address whether there wa. any interval b tween the time Lhe decedent appreciated the dange r of the impend ing a cid nt and th e time of the [* 5] 5 of 6 INDEX NO. 620093/2016 FILED: SUFFOLK COUNTY CLERK 05/28/2020 04:10 PM NYSCEF DOC. NO. 220 RECEIVED NYSCEF: 05/28/2020 Martinez v Murphy Index ,No . 16-620093 Page 6 accident and if. o, whether she experienced any fear or terror as a result such apprehension (see Mc Kenna v Reale. 137 AD3d 1533 , 29 YS3d 596 (3d D pt 2016]) . Accordingly, their motion is denied insofar a~ it eeks dismissal of pl aint iffs claim for damages related to the decedent's alleged pre-impact terror. Dated: A C... '/ 2..J , ~ Z--o I J.S .C. Fl 'AL D1SPOSIT10N [* 6] X 6 of 6 NO '-FThAL DISPOSITIO N

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