Foster v White & Blue Corp.

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Foster v White & Blue Corp. 2021 NY Slip Op 30771(U) March 1, 2021 Supreme Court, Kings County Docket Number: 522761/2016 Judge: Lara J. Genovesi 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. [* 1] INDEX NO. 522761/2016 NYSCEF DOC. NO. 75 RECEIVED NYSCEF: 03/11/2021 2.12/ /. ...· - At an IAS Term, Part 34 of the Supreme '-' ,.. ·;IO: Gourt of the State of New York, held in 'Md for the County of Kings, at the Courthouse thereof at 360 Adams St., Brooklyn, New York on the 1st day of March 202.1. I PRES EN~ . I HON. LARA J. GENOVESI, I J.S.C. ~c~-~os1i~-~d-MARCUS-SMi~H:------------------X Index No.: 52276112016 Plaintiffs, DECISION & ORDER I . -agamst- AN~~LUE WHITE CORP., EMMANUEL ACOSTA and J.C. SIN,_r ETARY, I Defendants. ----------------------------------------------------------------------)( Recitation, as equired by CPLR §22 19(a), of the papers considered in the review of this I motion: NYSCEF Doc. No.: Notice of Mot,on/Cross Motion/Order to Show Cause and 54 55 Affidavits (Afprmations) Annexed Opposing Affi~avits (Affirmations)_ _ _ _ _ _ _ __ 65 67 Reply Affidavtts (Affirmations)_ __ _ _ _ _ _ __ 66 71 Introduction Defendr t, J.C. Singletary moves, by notice of motion, sequence number six, pursuant to CBLR § 3212, for summary judgment on the issue of liability, dismissing the 1 of 7 [* 2] INDEX NO. 522761/2016 NYSCEF DOC. NO. 75 RECEIVED NYSCEF: 03/11/2021 complaint andiall crossclain1s against him. Plaintiffs, Tracy Foster and Marcus Smith, and defendant~ Wl;iite and Blue Corp. and Emmanuel A9osta oppose this motion. 1 Backgrottnd TI1is action involves a motor vehicle accident on June 1, 2016, near the intersection of Marcus Garvey Boulevard and Willoughby Avenue in Brooklyn, New York. Marcus: Garvey Boulevard is a one-way street with two moving lanes and parking on either side Of the street. The intersection is controlled by a traffic signal. Defend~nt J.C. Singletary testified at an EBT on March 4, 2020 (see NYSCEF Doc. # 60, Singletary EBT). Singletary testified that he drove his vehicle down Marcus Garvey Boulevard to make a left on to Willoughby Avenue (see id. at 16). He moved into tl1e left lane and came to a stop at the red light (see id. at 22, 23). While he was stopped, Singletary noticed another vehicle parked along tl1e curb to his left (see id. at 34). As Singletary made a left tum on to Willoughby Avenue, the vehicle to his left pulled out ofi(s parking spot, and the front right of the other vehicle contacted the driver's door qfSingletary's vehicle (see id. 25-27). Plaintiff Tracy Foster !estified at ari EBT on July 12, 2018 (see NYSCEF Doc.# 61, Foster EBt). Fo.ster testified that she and Marcus Smitl1 were passengers inside of the taxi that cqntacted Singletary' s vehicle (see id. at I 0). Foster entered the taxi while it ' was parked on'. the left side of Marcus Gaf"'.ey Boulevard near the intersection with 1 On January 29,,2020, !he Honorable Lizette Colon issued a Final Pre-Note Order, wherein it stated that "[p}ursuant to c:PLR §3J26, failure to strictly comply \Vith this final order, Will result in preclusion, the striking of a plea'.ding arid/or sanctions as may be appropriate" (NYSCEF Doc.# 59). That order scheduled defenQants White and Blue Corp. 's examination before trial (EB1) on or before March 4, 2020. To date, the EBT has not taken place. 2 2 of 7 [* 3] INDEX NO. 522761/2016 NYSCEF DOC. NO. 75 RECEIVED NYSCEF: 03/11/2021 Willoughby Avenue and saw Singletary's vehicle to the right of the taxi in the left moving lane, ~d noticed Singletary talking on his cell pl1one and playing music very loudly (see id.. at 13, 14, 16, 19, 30, 31 ). The taxi drove straight into the intersection as Singletary's vehicle was maki11g a left turn (see id. at 24). Foster did not see the accident between the taxi and Singletary's vehicle (see id. at 23). ' Plaintiff Marcus Smith testified at an EBT on July 12, 2018 (see NYSCEF Doc. # 62, Marcus EBT). Marcus testified that when he got in the taxi it was parked on Willoughby Avenue in the left parking lane (see id. at 12, 13, 16). The taxi drove "straight out of the parking lane" and was "in motion to go in to [sic] the lane" to drive straight when it collided with Singletary's vehicle (see id. at 17). 111e taxi never entered the moving lane and.Singletary's vehicle was in the left moving lane at the time of the accident (see id. at 17, 18). At the time of the collision, Singletary was in the process of making a left tum in, the moving lane (see id. at 20, 21). Singlet~ NYSCEF Doc. anhexed the Certified Pcilice Accident Repo1t to his motion (see # 56, Certified Police Accident Report). The report lists two vehicles: Singletary' s vehicle ("YEH!") and Acosta's vehicle ("VEH2") (see id.). The Officer's Notes reads "DRIVER OF VEHl STATES TIIAT HE WAS TRYING TO MAKE A LEFT TURN WHILE VEH2 HIT HIM FROM SIDE CAUSING DAMAGE. DRIVER ' OFVEIDCLE 2 STATES THAT HE WAS ALSO MAKING A LEFT TURN WHILE VEIDCLE 1 HIT HIM[.]" (see id.). The report notes that the points of contact on Singletary's v~hicle 'Were the driver's side door and front left of his vehicle, and the 3 3 of 7 [* 4] INDEX NO. 522761/2016 NYSCEF DOC. NO. 75 RECEIVED NYSCEF: 03/11/2021 points of contact on Acosta's vehicle were the front passenger door and the front right of the vehicle (se,e id.). This ac~ion Was comn1enced by the filing of the summons and complaint on December 22, 2016 (see NYSCEF Doc.# !). Issue was joined on March 9, 2017, and March 16, 2017 (see NYSCEF Doc. # 2, 3). Discussio11 Sun11nary J udgme11t "[T]he Proponent of a summary judgment motion must m·ake a prima facie sl1owing of eniitlem~nt to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" (Stonehill Capital Mgmt., LLC v. Bank ofthe W., 28 N.Y.3d 439, 68 N.E.3d 683 [2016], citing Alvarez v. Prospect Hospital, 68 N.Y.2d 320, 501N.E.2d572 [1986]). Failure to make such a showing requires denial of the motion, regardless of the sufficiency of the opposing papers (see Chiara v. Town ofNew Castle, 126 A.D.3d 111, 2 N.Y.S.3d 132 [2 Dept., 2015], citing Vega v. Restani Const. Corp., 18 N.Y.3d 499, 965 N.E.2d 240 [2012]; see also Lee v. Nassau Health Care Corp., 162 A.D.3d 628, 78 N.Y.S.3d 239 [2 Dept., 2018]). Since tl1ere can be more than one proximate cause of an accident, a defendant moving for summary judgm1mt has the burden of establishing freedom from Comparative negligence as a matter of law (see lnesta v. Florio, 159 A.D.3d 682, 71N.Y.S.3d161; Co/pan v. Allied'Cent. Ambulette, Inc., 97 A.D.3d 776, 777, 949 N.Y.S.2d 124; Pollack v. Margolin, 84 A.D.3d 1341, 924 N:Y.S.2d 282). "In order for a defendant driver to establi:sh entitlement to summary judgment on the ~ssue Of liability in a motor vehicle collision case, the driver :must demonstrate, prima facie, inter alia, that 11e 4 4 of 7 [* 5] INDEX NO. 522761/2016 NYSCEF DOC. NO. 75 RECEIVED NYSCEF: 03/11/2021 0r she kept tl1e proper lookout, or that his or her <illeged negligence, if any, did i1ot contribute to the ~ccident" (Ellis v. Vazquez, 155 A.D.3d 694, 695, 63 N.Y.S.3d 530; see Friedv. Misser, 115 A.D.3d 910, 911, 982 N.Y.S.2d 574; Brandt v. Zahner, 110 A.D.3d ~t 753, 974 N.Y.S.2d 482; Topalis v. Zwolski, 76 A.D.3d 524, 525, 906 N.Y.S.2d 317). The issue of ¢omparative fault is generally a question for the trier of fact (see CPLR 1411; Ines/av. Florio, 159 A.D.3d 682, 71N.Y.S.3d161; Gezelter v. Pecora, 129 A.D.3d 1021, 1022, 13 N.Y.S.3d 141; Co/pan v. Allied Cent Ambulette, Inc., 97 A.D.3d at 777, 949 N,Y.S.2d 124; Allen v. Echols, 88 A.D.3d 926, 927, 931 N.Y.S.2d 402). (Ballentine v. Perrone, 179 A.D.3d 993, 114 N.Y.S.3d 696 [2 Dept., 2020]). Once a:moving party has made a prima facie showing. of its entitlement to summary judgment, the burden shifts to the opposing party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action (see Fairlane Fin. Corp. v. Long~paitgh,. 144 A.D.3d 858, 41 N.Y.S.3d 284 [2 Dept., 2016], citing Alvarez v. Prospect Hospital, 68 N.Y.2d 320, supra; see also Hoovtr v. New Holland N. Am,, Inc., 23 N.Y.3d 41, 11N.E.3d693 [2014]). Vehicre. and Traffic Law§ 1141 provides t11at the ''driver of·a vehicle intending to turn to the left: within an intersection ... shall yield the right of way to any vehicle approaching from the opposite direction which is within the intersection or so close as to constitute an immediate hazard" (YTL§ 1141). Vehicle and Traffic Law§ l 128(a) provides that 'fa vehicle shall be driven as nearly ·as practicable e11tirely within a single lane and shall not be' moved from such lane until the driver first ascertained that sucl1 n1ovement c~ be made with safety" (YTL§ 1128(a)). While a driver is required to "see 5 5 of 7 [* 6] INDEX NO. 522761/2016 NYSCEF DOC. NO. 75 RECEIVED NYSCEF: 03/11/2021 that which thrqugh proper use of [his or her] senses [he or she] should have seen, a driver who has the right-of-way is entitled to anticipate that the other motorist will obey the traffic law reqµiring'him or her to yield" (see Vainer v. DiSalvo, 79 A.D,3d 1023, 914 N.Y.S.2d 236 l2 Dept., 2010], quoting Bongiovi v. Hoffman, 18 A.D.3d 686, 795 N.Y.S.2d 254 [2 Dept., 2005]); see also Platt v. Wolman, 29 A.D.3d 663, 816 N.Y.S.2d . 121 [2 Dept., :2006]). "A driver with the right-of-way who only has seconds to react to a vel1icle which :has f<iiled to yield is not comparatively negligent for failing to avoid the collision" (see' Yelder v. Walters, 64 A.D.3d 762, 883 N.Y.S.2d 290 [2 Dept., 2009]). "A driver traveling with the right-of-way may nevertheless be found t_o have contributed to the happening!ofthe accident if he or she did not use reasonable care to avoid the accident" (Mu'Jin Chen v. Cardenia, 138 A.D.3d 1126, 31N.Y.S.3d134 [2 Dept., 2016], citing Arias v.Tiao, 123 A.D.3d 857, 1N.Y.S.3d133 [2 Dept., 2014]; Toddv. Godek, 71 A.D.3d 872, 895 N.Y.S.2d 861 [2 Dept., 2010]). In tl1e qase at'bar, Singletary did not show entitlement to summary judgment as to liability. Althpugh Singletary is entitled to anticipate that Acosta's vehicle would have obeyed the tra:ffic law requiring him to yield to Singletary's vehicle, Singletary must still malce a showibg that he is free from comparative fault (see Criollo v. Maggies Paratransit Corp., 155 A.D.3d 683, 63 N.Y.S.3d 516 [2 Dept., 2017]; Gobin v. Delgado, . 142 AD.3d 1334, 38 N.Y.S.3d [2 Dept, 2016]; Vainer v. DiSalvo, 79 A.D.3d 1023, supra). It is uncleru·; from Singletary's testimony 'vhether he saw Acosta's vehicle moving prior io the Collision, and whether he could have do11e anything to avoid the collision. He failed.to demonstrate that he kept the proper lookout, or that his alleged 6 6 of 7 [* 7] INDEX NO. 522761/2016 NYSCEF DOC. NO. 75 RECEIVED NYSCEF: 03/11/2021 negligence, if a11y, did not contribute to the accident (see Ballentine v. Perrone, 179 A.D.3d 993, s~pra). Conclusio11 Accord1ngly, :defendant's motion for sun1mary judgment as to liability is denied. 111is constitutes the decision and order of this case. ENTER: To: Ilya Z. Kleynerman, Esq. Law Offices ofllya Z. Kleynennan, PLLC Attorneys for Plaintiffs 449 Bay Ridgi: A venue Brooklyn, NY 11220 Richard C. Ertel, Esq. Law Office of Jennifer Adams Attorneys for Defendant J.C. Singletary One Executive Boulevard, Suite 280 Yonkers, NewYork10701 Suey K. Chung, Esq. Baker, McEvoy & Moskovits, PC Attorneys for Defendants White and Blue Corp A11d E1nnianuel Acosta One MetroTedh Center Brooklyn, New York 11201 7 7 of 7

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