Williams v Pastorello

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Williams v Pastorello 2021 NY Slip Op 33775(U) January 11, 2021 Supreme Court, Dutchess County Docket Number: Index No. 2020-51241 Judge: Hal B. Greenwald 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. 2020-51241 FILED: DUTCHESS COUNTY CLERK 01/13/2021 10:03 AM NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 01/11/2021 SUPREME COURT - STATE OF NEW YORK DUTCHESS C::OUNTY Present: Hon. HAL B. GREENWALD Justice. SUPREI\1ECOlJRT: DUTCHESS COUNTY ------,---------------------·x SHAUNA 0. WILLIAM:s,. Plaintiff, -against- DECISION AND ORDER Index No. 2020-51241 Motion Seq # I JOSEPH A. PASTORELLO, Defendant. _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _x The following docllinertts were reviewed and considered by the Court in reaching the within Decision and Order. NYSCEF Doc. Nos.Nos 1,3,8-13, 15-19 This motor vehicle negligence action is based Upon ari alleged accident between an automobile and a pedestrian that occurred on June 26, 2019 at the intersection ofMain Street and Academy Street, Poughkeepsie, NY. It is alleged that Plaintiff SHAUNA 0. WILLIAMS (WILLIAMS) was walking in the crosswalk east on Academy and Defendant JOSEPH A. PASTORELLO (PASTORELLO) was driving south on Main Street making a left into Academy when PASTORELLO made contact with WILLIAMS, . The procedural history has been set forth in the papers before the Court. Currently Plaintiff WILLIAMS has filed a Motion for Summary Judgment pursuant to CPLR. 3212 seeking ar1 award of liability against Defendant PASTORELLO. PASTORELLO opposes said tnotion. SU1v1MARYJUDGMENT STANDARD As set forth in Sillman v. Twentieth Century Fox Film Corp .• 3 N.Y.2d 395 (1957], summary judgment is a drastic remedy which should not be granted where there is any doubt as to the existence of triable issues of fact (see Rofuba Extruders, Inc.v. Ceppos, 46 N.Y,2d 223 [1978] DlMenna.&Sonsv; CityofNew York, 301 N. Y. 118 [1950]; Greenberg v. Bar Steel Constr. Corp.~ 22.N.Y;2d2l0[1968]; Barrett v. Jacobs; 255 N.Y. 520(1931]:Specifica:lly, ·alltomobit~ accident cases do not gen~rally lend themselves to disposition urider summary judgment rules as the question of negligence is essentially one of fact. Andre v. Pomeroy, 3S N~Y~2d 361, 362 [(1974] see (Schneider v. Miecznikowski, 16 AD 2d 177[4 th Dep'~- 1962]; 1 [* 1] 1 of 4 FILED: DUTCHESS COUNTY CLERK 01/13/2021 10:03 AM NYSCEF DOC. NO. 20 INDEX NO. 2020-51241 RECEIVED NYSCEF: 01/11/2021 Barker v. Savage, 45 N.Y.191[1871]; Salomone v. Yellow Taxi Corp~. 242 N.Y. 251[19261). When a court decides a motion for summary judgment: " ...Oissue'"tinding not issuedetermination is the key to the procedure. If and when the court reaches the concl us ion that a genuine and substantial issue of fact is presented, such determination requires the denial of the application for summary judgment." Esteve v. Abad, 271 AD. 725 (1st Dep't, 1947). Generally, the basis for determining summaryjudgment is that: 11 [T]he proponent of a summary judgment motion must mak:e a prima facie case showing entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material fact." Pullmanv. Silvennan, 28 N.Y.3d 1060, 1062(20l6)i quoting Alvarezv. Prospect Hosp .. 68 N.Y.2d 320, 324 (1986). Further as stated iri Wine grad v. New. York Univ: Med. Ctr., 64 N.Y 2d 851,853 (I 985) "Bare concli.Jsory assertions ... 11 are insufficientJo cause the court to grant summary judgment. For a summary judgment niotkm to be denied, the cine opposing the motion mi.I st demonstrate the existence of facts.that have a probative value that indicates there is an unresolved material issue .See e.g. Piedmont Hotel CO; v. A.E. Nettleton Co;, 263 N.Y. 25, 188 N.E. 145 (1933}; If the opposition can show there are questionable issue of fact that require a trial of the action, then summary judgment must b:e denied. In determining a motion for sum111ary judgement, the court must look at the proof being offered in the light. most favorable. to the ·nonmoving party and then deny the motion When there is·.: .... even arguably any doubt as to the existence of a triable issue', Baker v. BriarcliffSchool Dist., 205 A.D.2d 652;661 -62 (2d Dept. 1994). PLAINTIIF'S ARGUMENT Plaintiffs argument is very simple, Defendant says he did not see WILLIAMS until he had 111ade contact with her: AccordJngly; PASTOR.ELLO is negligent, has no defense and liability must be sustained in this Summary Judgment motion. WILLIAMS cites several cases and statutes. · Vehicle &Traffic Law (V&T) 1163 is mentioned a:s it governs turning movements, such as the subject left turn and that it should be made,'' ...with reasonable safety.",· In Gomez v Novak, 140 A.D;Jd 831 (2nd Dep 't, 20 l 6)the Second Department affirmed summary judgment on the issue of liability. Plaintiff had demonstrated that she was in the crosswalk with the •signal in her favor, that she while; " ... exercising due care, she looked in all directions to check fotapproaching vehicles before she entered the intersection.". In Moreira v MK Travel & Transp.; Ind., 106 A.D3d 965 (2 nd Dep't, 2013) again the pedestrian crossing liability was. found~ Here, Plaintiff offered proof that, "·~ ; .she· waited signal to display the walk icon,· 1ooked both ways before .she entered the intersection, .. '\ Iil Cuevas v Chavez;94 A~D.3d 803 (2 nd Dep't, 2012) Habiiity was established by reason that the defel)darit failed to yield the. right way as. he was crossi11g the street with the ' 1WALK'.j .signaJ in his favor. for of [* 2] 2 of 4 FILED: DUTCHESS COUNTY CLERK 01/13/2021 10:03 AM NYSCEF DOC. NO. 20 INDEX NO. 2020-51241 RECEIVED NYSCEF: 01/11/2021 In Martinez v Kreychmar, 84 A.D.3d l 037 (2nd Deft, 2011) Plaintiff proved to the court she was exercising due care, walking in the crosswalk; looked all around when she was hit by defendant's automobile. Liability denied in the lower court, granted in the Second Department · In Qamar v Kanarek, 82 A.D.3d 860 (2nd Dep't, 2011) liability against the driver was sustained. Plaintiff pedestrian was walking in the. crosswalk, was• struck " ... suddenly and without warning when he was more than halfway across the street ... '', and he showed he exercised due care. In Klee vAmerica's Best Bottling Co.Inc,, 60 A.O. 3d 911 (2nd Dep't,2009)Plaintiffwas granted liability establishing defendan:thad violated V&T 1112.(a) when plaintiff was crossing the street in the crosswalk with the traffic signal in his favor. V&T 1112(a) states in relevant part: 1112. Pedestrian'-control signal indications TiVhenever pedestrians· are controlled by pedestrian~control signals exhibiting the words ''WALK" or "DON'T WALK", or exhibiting symbols of a walking person or upraised hand, such signals shalfindicate and apply to pedestrians asfollows;· (a) Steady WALK or walking person. Pedestrians facing such signal may. proceed across the roamvay in the direction ofthesignalandshall begiventhe right ofway by other traffic DEFENDANT OPPOSES THE MOTION Defendant first claims the instant Motion for Summary Judgment as to liabiHty is premature, as there has been no .discovery. Defendant made certain discovery demands at the same time as it served its Answer, yet no responses have been forthcoming from Plaintiff, only the motion:. However, mere speculation that discovery mayl.1ncover some pertinent fact, is insufficient to deny summary judgment. Next, PAS TORELLO argues that Summary Judgment is issue fincJing; and. if there is a triable issue of fact "found", Summary Judgment must be denied. Defendant claims Plaintiffs argument is unsubstantiated and· reviews the documents offered by plaintiff in support of its motion; The complaint is unverified and has no ·probative value in terms of the instant motion. The police report is merely a collection of statements by a police officer who WaS not a witness to the occurrence. However, the police report may be considered evidence and avoid the hearsay rule as a business record, but it's value to support the instant motion is questionable. The last document reviewed by movant is the Plaintiff's Affidavit wherein she states: ''On June 26, 2.0191 I was a pedestrian crossing east on Academy Street. while in the crosswalk,. in the City of P~ughkeepsie, County of bµtchess, State of New York. T was stru,c,C on my left side by defendant, Joseph A. PastoreHa while he. was opetatirtg his 2005 Nissan<Pickup ~~-. . ·That's it! 3 [* 3] 3 of 4 INDEX NO. 2020-51241 FILED: DUTCHESS COUNTY CLERK 01/13/2021 10:03 AM NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 01/11/2021 Unlike the cases cited wherein the plaintiff asserted and the court accepted that the plaintiff looked before crossing, or observed traffic signals or pedestrian signals; WILLIAMS was merely in the crosswalk There are many unanswered questions and certainly triable issues of fact sufficient herein to preclude the granting of summary judgment as to 1iabi Iity, By reason of the foregoing it.is ORDERED that the Motion by Plaintiff WILLIANrS for Summary Judgment against befendantPASTORELLO on the issue ofliability is denied; and it is further· ORDERED that counsel is directed to review, complete and return the annexed Preliminary ConferenceOtder to the Court on or before Febmary 28, 2021. Any relief not specifically granted herein is denied The foregoing constitutes the decision and Order ofthis Court. Dateq: January 11, 2021 Poughkeepsie NY 12601 ENTER #j)/J~ Hon. Ha!B. Greenwald, J:S.C. To: Rutberg Breslow Injury Law Lawrence Breslow, Esq. Attorneys forPlaintiff 3344 Route 9N Poughkeepsie; NY 12601 Law Firm.of James R. Mccarl &Associates James McCarl, Esq. Attorneys for Defendant 18 Bridge Street Montgomery, NY 12549 Pursuant to CPLR, Seqtion 5513) an appeal as of right must be taken within thirty days after service by .a party upon tne appellant of a .copy of the judgment or order appea,ledfrom .and written notice of its entry, .except that when the appellant has. served a copy of the judgment or order and written notice of its entry J the. app~al must be taken within thirty days thereof. · When submitting motion papers to Justice Green.Wald's Chambers, please do. not submit any copies. Submit only tile original papers. [* 4] 4 of 4

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