Pena v Ace-Atlas Corp.

Annotate this Case

Download PDF

Pena v Ace-Atlas Corp. 2021 NY Slip Op 32768(U) December 22, 2021 Supreme Court, Kings County Docket Number: Index No. 511080/2019 Judge: Larry D. Martin 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] KINGS COUNTY CLERK 12/22/2021 02:46 PM NYSCEF DOC. NO. 85 INDEX NO. 511080/2019 RECEIVED NYSCEF: 12/22/2021 SUPREME COURT OF THE STATE O NEW YORK COUNTY OF KINGS -------------------------------------------------------------------X ANNEURY PENA, Index No. 511080/2019 Plaintiff, -against- DECISION & ORDER Hon. Larry D. Martin ACE-ATLAS CORP. and JOSE DIGIOVANNI, Defendants. -------------------------------------------------------------------X Plaintiff Anneury Pena commenced this negligence hction after a vehicle driven by I Defendant Jose DiGiovanni and owned by his employer, co-9efendant Ace-Atlas Corp., struck Pena's vehicle. Following discovery, Pena moves, inter alia, fot summary judgment as to liability I pursuant to CPLR § 3212 and to strike Defendants' affirmative defenses of comparative and contributory negligence (Seq. No. 3, NYSCEF 54). I. Background I I Immediately preceding the accident, Plaintiff Pena wJs driving eastbound on Flushing Avenue ("Flushing"), a Queens, NY thoroughfare, and DiGiovanni, in Ace-Atlas's van, was pulling out of a tire shop's parking lot on the same eastern sidj of Flushing. DiGiovanni alleges he "intended to make a left turn onto Flushing westbound,"! which required his crossing the eastbound lane, and that, before doing so, he activated his left tuL signal, looked for traffic in both I directions, and waited until a transit bus driver, who was trave\jng Flushing eastbound, "stopped I before reaching the tire shop, and waved ... so that [DiGiovan~i] could make a left turn." Only I once "it was safe to proceed," DiGiovanni says, did he "beg[i]' to slowly and cautiously pass in front of the bus ... traveling no more than five miles per hour. ' According to Di Giovanni, Pena 1 1 of 4 [*FILED: 2] KINGS COUNTY CLERK 12/22/2021 02:46 PM NYSCEF DOC. NO. 85 INDEX NO. 511080/2019 RECEIVED NYSCEF: 12/22/2021 illegally "passed the stopped transit bus in the westbound lane, 1' because the sole eastbound lane I "was occupied by the bus" and collided with DiGiovanni's veh,cle. In contrast, Pena maintains that Flushing actually has four lanes-rather than two-and I that DiGiovanni struck Pena's vehicle while "attempting to mtke an improper U-Tum from the [eastern] parking lane" and that DiGiovanni alleged for the fi~st time, at his deposition, that he "reversed in the parking lane against traffic into a driveway and las attempting to make a left tum, l'I not a U tum." The responding police officer's report supports ena's U-tum theory. 1 II. Arguments Pena asks this Court to accept his version of the facts: t at DiGiovanni attempted to make I a U-tum without yielding to Pena's right-of-way, thereby viol~ting VTL §§ 1160(e) (U-tums), 2 I 1141 (left tums), 3 1143 (entry to roadways from non-roadwafs), 4 and 388 (owner's liability) 5 • I According to New York precedent, Defendant is therefore! negligent as a matter of law. DiGiovanni rebuts that, because Pena illegally "passed the stopped transit bus" going in the wrong direction, Pena is negligent as a matter oflaw. In sugport, DiGiovanni offers a Google I maps image suggesting that Flushing has only one lane of traffic in each direction at the site of accident. DiGiovanni charges, at bottom, that Pena has failed tb carry his burden of establishing prima facie that he is free from comparative fault. 1 2 3 4 5 "Vl [Pena] states that he was driving straight when driver of V2 [: iGiovanni] attempted a U-turn from Vl 's right side causing V2 to strike Vl. Driver of V2 states that he was waiting to make U-turn, saw that no cars were coming and attempted to make the U-tum when Vl tried to drive passed him on the left side, causing V2 to strike Vl." "U-tums shall be made from and to that portion of the highway nearest the marked center line...." "The driver of a vehicle intending to tum to the left within an in~ersection ... shall yield the right of way to any vehicle approaching from the opposite direction which! is within the intersection ...." "The driver of a vehicle about to enter or cross a roadway from any place other than another roadway shall yield the right of way to all vehicles approaching on the roadkl ay to be entered or crossed ...." "Every owner of a vehicle ... shall be liable ... for ... injuries to person or property resulting from negligence in the use or operation of such vehicle, in the busines~ of such owner or otherwise, by any person using or operating the same with the perm:ssion, express oj implied, of such owner." 2 of 4 [*FILED: 3] KINGS COUNTY CLERK 12/22/2021 02:46 PM NYSCEF DOC. NO. 85 INDEX NO. 511080/2019 RECEIVED NYSCEF: 12/22/2021 III. Discussion Summary judgment is granted if, upon all the papers nd proof submitted the cause of I , action or defense is established sufficiently to warrant the Cotlrt as a matter of law in directing I judgment in favor of any party (see CPLR § 3212 [b]). To succe~d, the movant must make a prima I facie showing of entitlement to same, by demonstrating the absence of any material issues of fact I I may defeat the motion by submitting sufficient evidence to raile a triable issue of fact as to the (see Winegrad v. NY Univ. Med. Ctr., 64 NY2d 851,487 NYSiid 316 [1985]). Still, the opposant movant's comparative fault (see Brown v Mackiewicz, 120 A13d 1172, 1173, 992 NYS2d 314, 315 [2d Dept 2014]). While a YTL violation ordinarily constitutes negligenqe as a matter of law (Ricciardi v I Nelson, 142 AD3d 492,493, 35 NYS3d 724, 725 [2d Dept 201 16]), summary judgment is usually inappropriate in negligence cases since whether a party acted tonably under the circumstances can "rarely be resolved as a matter of law" (Charles v Garber,I 195 AD2d 585, 600 NYS2d 739 I [2d Dept 1993]). In the same vain, since there "can be mor~ than one proximate cause of an accident," the "issue of comparative fault is generally a questio11 for the jury to decide" (Vuksanaj v Abbott, 159 AD3d 1031, 1032, 73 NYS3d 224,226 [2018]). Moreover, although a driver with the right-of-way is entitled to assume that the opposing driver will obey the traffic laws requiring him or her to yield ()ennett v Granata, 118 AD3d 652, 652, 987 NYS2d 424, 425 [2d Dept 2014]), she nonetheless reta~ns the duty to use reasonable care to avoid a collision with a driver who has improperly failed to dt so (Marcel v Sanders, 123 AD3d 1097, 1097-98, 1 NYS3d 230, 232 [2d Dept 2014]; Yelder v !Walters, 64 AD3d 762, 764, 883 NYS2d 290, 292 [2d Dept 2009]). Additionally, a YTL viola ion may be excused if the driver 3 3 of 4 [*FILED: 4] KINGS COUNTY CLERK 12/22/2021 02:46 PM NYSCEF DOC. NO. 85 INDEX NO. 511080/2019 RECEIVED NYSCEF: 12/22/2021 exercised reasonable care in an effort to comply (see Brown v !tate, 31 NY3d 514, 2018 NY Slip Op 04029 [2018]). Here, the parties dispute whether, at the time and site of he accident, there were four lanes I or two. Both parties oscillate in recounting material facts. tritically, DiGiovanni alleges the I involvement of a non-party transit bus driver, to whom he dr in fact yield, thereby arguably 1. Furthermore, he alleges that he complying with the VTL provisions that Pena alleges he violate proceeded carefully and slowly suggesting that he exercised reasionable care in an effort to comply, which may excuse a violation for purposes of liability. True, too, that even if Pena had the right I of way, he retained the duty to use reasonable care to avoid colli[ing with a driver who improperly failed to yield. Since summary judgment motions "do not allow for ere. ibility assessments on the part of I I entitlement judgment as a matter of law and Di Giovanni and A¢e-Atlas have submitted sufficient I evidence to raise triable issues of fact as to Pena's comparative: ault. the courts deciding them" (CPLR § 3212 ed. note), Pena has npt made a prima facie showing of Accordingly, it is hereby ORDERED, Plaintiffs motion for summary judgment iSeq. No. 3) is denied. Dated: December 22, 2021 1 ON. LARRY MARTIN JU6Tl9'= OF THE SUPREME COUl'tT I H1on. Larry D. Martin, J.S.C. 4 4 of 4

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.