Castelli v Olweiler

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Castelli v Olweiler 2021 NY Slip Op 33232(U) February 19, 2021 Supreme Court, Orange County Docket Number: Index No. EF003798-2017 Judge: Sandra B. Sciortino 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. EF003798-2017 FILED: ORANGE COUNTY CLERK 02/19/2021 03:40 PM NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 02/19/2021 To commence 1.he llllutory time f r appeals as of right ( PLR 551 3 [al), you arc advised lo serve a copy of this order, wi th notice of entry, upon all parties. UPREME COURT OF THE TAT ~ OF NEW YORK COUNTY OF ORANGE ----------------------------------------------------------------X ANA CASTELLI, SR. and ANA CASTELLI, JR., Plaintiff, DECI ION AND ORDER INDEX NO.: EF003798-2017 Motio n Date: 12/23/2020 Sequence No. 1 -again tRONALD H. OLWEILER and MERIT TRUCKING COMPANY, INC., Defendants. ---------------------------------------------------------------X CIORTINO J. The following papers numbered I to 15 were con idered in connection with the application of plaintiffs for summary judgment on the issue ofJiability only: PAPERS NUMB RED Notice of Motion/ Affirmation (Thonus)/ xhibits l - 11 Affirmation in Opposition( ram r) Affirmation in R ply Thonu ) l - 13 14 15 Background and Procedural History This personal injury action arises out of a motor vehicle accident that took place on December 15 20 l 6 on Route 9 near its intersection with hurch treet own of Fishkill, ounty of Dutchess. Plaintiff Anna astelli Sr. (Senior) was operating a vehicle which was truck by a tractor trailer owned by Penske Truck Leasing Company and operated by defendant Olweiler while in the course of his employment with defendant Merit Trucking Company, Inc. Plaintiff Ana astelli, Jr. (Junior) was a passenger in the vehicle. Plaintiff commenced this action by filing a Summons and Complaint (Exhibit 1) on or about May 22, 2017. Defendants Filed in Orange County [* 1] 02/19/2021 03:40:45 PM $0.00 1 of 6 Pg : 1323 Bk: 5124 Index: # EF003798-2017 Clerk: SW FILED: ORANGE COUNTY CLERK 02/19/2021 03:40 PM NYSCEF DOC. NO. 38 interposed an an wer on INDEX NO. EF003798-2017 RECEIVED NYSCEF: 02/19/2021 ugust 22 2017. An Amend d Answer with Counterclaims was fi led on September 8 2017. Ar ply to the ounterclaim was filed on ptember 15 2017. The Examination b fore Trial of plaintiff na Castell, r. was held on July 11 2018. The Examination before Trial of plaintiff Ana Castelli Jr. was held on July 11 2018. The Examination before Trial of defendant Ronald Olw iler wa h Id on Jul 11 2018. ot of I sue a filed on March 11 2020. Deposition of Ana Ca t Iii, Sr. (Exhibit 9) On December 15 2016 at approximate! 6:00 p.m. plaintiff enior was traveling south on Route 9 a four lane high ay, near an intersection ith Chur h treet. enior s vehicl approached a red light in the far right lane. Senior observed d fondant struck approaching in the lane to her left a she brought her vehicle to a stop in response to the red light. Senior' s ehicle was stopped at the red light· defendant was to her left. The traffic light turned green and enior observed the truck accelerate. Before sh was able to proceed, her vehicle was struck by defendant s vehicle in the driver s side of her vehicle. Junior struck her head on the pas enger win do and lost consciousness. When the vehicles came to rest a significant portion of defendant s ehicle came to rest in the plajntiffs lane of trave l. Depo ition of Ana Ca telli. Jr. (Exhibit l 0) Plaintiff Juni r was a pa senger in the vehicle operated by her mother. While she remembered seeing th truck prior to the impact she had no memory of the impact or the events immediat ly before th impact. h had no memory of whether the truck had activated turn signal prior to th impact. 2 [* 2] 2 of 6 INDEX NO. EF003798-2017 FILED: ORANGE COUNTY CLERK 02/19/2021 03:40 PM NYSCEF DOC. NO. 38 RECEIVED NYSCEF: 02/19/2021 Deposition of Ronald Olweiler (Exhibit 11 ) D ti ndant Olwei ler testified that prior to the accident, he wa tra eling in the second from the right Ian . Th r re at th inter ection. Olweiler to change Ian heard a noi to hjcJe in a lI lanes of tra el· all came t a top in res pons to a r d Iight hile in th process of slowing his eh icl for the red light, att mpted hen his eh icle struck plaintiffs ' vehicle. Olweil r di d not fee l the impact but . Prior to the impact Olweiler ac ti vated his turn signal and checked his mirrors before merging. How er he did not see plaintiffs' vehicle. Plaintiffs' Motion for Partial Summary Judgment By otice of Motion filed on November 23,, 2020 p laintiffs move for summary judgment on the i u of liability. Plaintiffs claim entitlement to summar judgment on liability a their hicle wa topped at a red light within the ir lane of travel wh n d fendant 01 eil r changed lanes in violati n of Vehicle & Traffic La 1128. (McKi nney' Yeh . & Traffic Law 11 28 uch plaintiffs argue constitute negligence per se. Plaintiff: argue that defendant Olwei ler's action te timon that he did not see plaintiff' vehicle is support db defendant' s stat ments contained in the certifi d Police ccident Report (Exh ibit 8). Plaintiffs argue that the ha e demonstrated entitlement to ummary judgm nt on the issue ofliability, and defendant is unable to offer any a nonneglig nt explanation for the accident. Opposition In opposition to plaintiff: ' motion defendants argue that there are questions of fact wi th re pect to whether enior accid nt. op ration of the motor veh icle caused or contributed to the subject I eiler testifi d that he was slowing down and had his turn signal on when merging int th right lane at th tim the accident. enior te ti tied that he did not notice whether the 3 [* 3] 3 of 6 FILED: ORANGE COUNTY CLERK 02/19/2021 03:40 PM NYSCEF DOC. NO. 38 INDEX NO. EF003798-2017 RECEIVED NYSCEF: 02/19/2021 truck had its turn signal on. Junior testified that she had no memory as to whether their ehicle as stopped at the time of the accident or whether th truck had her turn signal on. Ba ed on thi te timony defendant argue there are issue of fact a to whether plaintiffs ehicl wa stopp d at the tim of the accident where plaintiffs ehicle was prior to impact, and whether d fondant had their turn signal on prior to impact. Plaintiff' Repl ln rep! plaintiffs argue that defendants have failed to rai ea triable i ue of fact precluding summary judgm nt on the issue of liability. With re pect to the cause of the accident plaintiffs ' testimony is clear a to defendant struck triking and dragging plaintiffs vehicle. The position of plaintiffs ehjcle i not in dispute. Whether plaintiffs vehicle before impact is irrelevant. Defendant s peculation as to a stopped or moving immediately hether Olweiler s turn signal was activated immediately prior to the accident is similar! irrelevant. Discus ion For the rea ons which follow plaintiffs motion is granted. Summar judgment is a drastic remed and i appropriate only when there is a clear demonstration of the absence of an tri able issue of fact. Piccirillo, . Piccirillo , 156 AD2d 748 [2d D pt 1989] citing Andre v. Pomeroy 35 Y2d 361 [1974]) The function of the su h a motion is i ue finding and not issue determination. ( illman v. Tr1 entieth Film orp. 3 the Y2d 395 [l 957]) Th ourt on entury-Fox ourt is not to engage in the weighing of e idence; rather ourt s function is to d t rmine wh ther b no rational process could the tri r of facts find for th non-mo ing part . (Ja trzebsld . . hore ch. Dis!. 232 AD2d 677 678 [2d Dept 1996]) The Court i oblig d to draw all reasonabl inference in fa or of the non-moving party. 4 [* 4] 4 of 6 FILED: ORANGE COUNTY CLERK 02/19/2021 03:40 PM NYSCEF DOC. NO. 38 INDEX NO. EF003798-2017 RECEIVED NYSCEF: 02/19/2021 (Rizzo v. Lincoln Diner o,p. 215 AD2d 546 [2d Dept 1995]) dri er has a duty to see what should be seen and to exercise reasonable care under the circumstances to a oid colliding with another vehicle. (Filippazzo [2d Dept 2000]) dri er 1. antiago 277 AD2d 419 ho has the right-of-way is ntitled to anticipate that other drivers will ob y the traffic law requiring them to yield . (Beres v. Terranera, 153 Ad3d 483 485 [2d Dept 2017]) Vehi le and Traffic Law l 128(a) provides ' A vehicle shall be driven as near! as ithin a ingle lane and shall not be mo ed from such lane until the driver practicabl ntirely ha first a rtain d that such movement can be made with safety. (McKinney' s V h. & Traffic Law l 128[a]) Plaintiffs established their entitlement to summary judgment on liability. The parties ' deposition testirnon demonstrates that plaintiffs were in the right hand lane of tra el at all times before the collision and were not engaged in any distracting behavior. Olweiler testified that as he moved from his lane to the right hand lane, he collided with plaintiffs vehicle. Defendant Olweiler had a duty not to enter a lane of moving traffic until it was safe to do so and his failure to do so constitutes negligence per se. (San chez v. Oxcin 157 AD3d 561 , 564 [1st Dept 2018] · see Vehicle and Traffic law §I 128[a]) D fendants· opposition to plaintiffs ' motion fails to raise a triable issue of fact as to the comparati e neg) ig nee n the part of plaintiffs. (Guerrero v. Milla , 135 AD3d 634 [Is Dept 2016]) Conclusion On the basis of the foregoing it is ORDERED that plaintiffs application for partial summar judgment on liability is 5 [* 5] 5 of 6 FILED: ORANGE COUNTY CLERK 02/19/2021 03:40 PM NYSCEF DOC. NO. 38 INDEX NO. EF003798-2017 RECEIVED NYSCEF: 02/19/2021 granted. The parties shall appear for a virtual conference on May, 12 2021 at 9: 15 a.m. A Microsoft Teams link will b provided prior to the conference. This decision shall constitute the order of the Court. Dated: February 19 2021 Goshen New York To: Counsel of Record via NYSCEF .. i 6 [* 6] 6 of 6

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