SUPREME COURT - STATE OF NEW YORK COUNTY OF NASSAU - PART 19. Justice

Transcription

1 SHORT FORM ORDER SUPREME COURT - STATE OF NEW YORK COUNTY OF NASSAU - PART 19 Present: HON. WilLIAM R. lamarca Justice Cf1 RONALD L. GilBERT Motion Sequence # 001, # 002 Submitted April 11, 2007 Plaintiff -against- INDEX NO: 12994/05 ORINE BAKER BARNETT, leon BRYANT & SYLVESTER W. BROWN, Defendants. The following motions were read on this motion: Notice of Motion... Notice of Cross-Motion... Affrmation in Opposition... Reply Aff rmation... Defendant, SYLVESTER W. BROWN (hereinafter referred to as " BROWN" moves for an order granting summary judgment dismissing the complaint on the ground that there are no triable issues of fact or law to be determined. Defendants, ORINE BARNETT (the owner of the vehicle) and LEON BRYANT (the driver), (hereinafter referred to as " BRY ANT"), cross-move for the same relief. Plaintiff RONALD GILBERT, opposes the motion and the cross-motion which are determined as follows: This negligence action seeks money damages for personal injury sustained by plaintiff as a result of a multi car collsion that occurred on June 12, 2005 on Nassau

2 Road at or near the intersection of Harding Street, County of Nassau, State of New York. In essence, plaintiff alleges that the said accident was caused solely by the negligence of defendants. Plaintiff alleges inter alia that defendants operated their vehicles in a careless and imprudent manner, at excessive rates of speed, thus constituting negligence. In support of their motions to dismiss, defendants annex transcripts of the parties deposition testimony which reflect that all parties were traveling westbound on Nassau Road, a two way road with two lanes in each direction and a parking lane, on June around 10:00 P. M. All parties assert that the weather and driving conditions were normal. At his deposition, BROWN testified that he was traveling about twenty five miles per hour in the left lane. BRYANT testified that he was traveling about thirty miles per hour in the right lane, with BROWN two car lengths ahead of him to the left. All parties stated that plaintiff was traveling ahead of both of them in the right lane. Plaintiff testified that the accident occurred when he was changing from the right lane to the left. BROWN testified that plaintiff, without signaling, made a sudden lane change and entered his lane of travel, thus causing the collision. BROWN stated that he pulled over to the side of the road after the impact with the plaintiff and that he did not observe the plaintiff and BRYANT collde. At his deposition BRYANT testified that plaintiff pulled to the side and then attempted to make a U turn without seeing BROWN. BRYANT asserted that plaintiff did not signal and that, about four or five seconds later, he heard a loud bang. He testified that plaintiff' s vehicle was now at an angle, with part of the car in the right lane and that

3 in an attempt to avoid the plaintiff, BRYANT pulled to the right and applied his brakes but, despite his effort, contact between the driver s door of the plaintiff' s car and the front of his own vehicle was made. It is defendants' position that plaintiff did not safely change lanes and that he is solely responsible for the collisions. BROWN states that plaintiff made an illegal lane change in the path of approaching traffic and that the Court should follow New York Vehicle and Traffic Law (VTL) (a) which provides that "a vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety The Court notes that BROWN's counsel does not offer any case law in support of this argument. It is BRYANT's position that plaintiff violated VTL 91128(a) by changing lanes unsafely and that BRYANT was faced with a sudden and unexpected circumstance that left him with no time to weigh alternative conduct. He asserts that the Court should hold that he is not negligent because his actions were reasonable and prudent in an emergency context. Caban v Vega 226 AD2d NYS2d 58 Dept. 1996). In addition, BRYANT contends that he had no legal duty to protect against an occurrence which was extraordinary in nature, citing, Roman v Vargas, 182 AD2d 543, 582 NYS2d 1020 (1 Dept. 1992), and that if there is evidence of negligence, his negligence did not cause the event which produced the harm sustained by the plaintiff, citing, Sheehan v City of New York 40 NY2d 496, 387 NYS2d 92, 354 NE2d 832 (C.A. 1976).

4 In opposition to the motion, counsel for plaintiff asserts that the defendants actions, or lack thereof, constitutes triable issues of fact which preclude the granting of summary judgment. At his deposition, plaintiff testified that he did not see any traffic in the left lane for the three blocks he was traveling on Nassau Road before the collision. He further testified that he turned on his directional signal for a few seconds, checked for traffic in the left lane, and then proceeded to change from the left to right lane. Plaintiff states it was after these actions that the accident took place. Defendants both claim that plaintiff did not use his directional signal. Indeed, counsel for plaintiff points out that BROWN states that plaintiff made a lane change, while BRYANT states that plaintiff attempted to make a U turn and that the difference between the testimonies of the defendants requires a jury determination as to the proximate cause and degrees of fault of each party. Furthermore, plaintiffs counsel contends that the emergency doctrine is not applicable in this situation, or at the very least, should be decided by a jury. Counsel notes that the emergency doctrine is normally applied when a party is faced with a fraction of a second to react to an emergency situation. Counsel points out that BROWN testified that he kept the plaintiff under constant observation from the time he first saw his vehicle until the time of impact and that this constant observance should have given BROWN ample time to see the plaintiffs use of directional signals, as well as his entrance into the left lane. In his deposition, BRYANT testified that approximately four-five seconds elapsed between when he saw the plaintiff pull to the side and until the time of the second collsion, which should have allowed BRYANT enough time to

5 , " avoid impact with the plaintiff. Counsel asserts that the reasonableness of conduct in the face of an emergency is a question for the jury and that the jury should be given the opportunity to judge the credibility of each witness and to determine the degrees of fault of each of the parties. Moreover, plaintiff asserts that BROWN did not follow his duty as a driver to see what needed to seen and did not keep a proper lookout, citing PJI 2:77. Plaintiff urges the Court to follow a long line of cases where negligence has been found on the part of drivers who have failed to keep a proper lookout or have failed to avoid an accident even where they have not otherwise violated the VTL, citing, inter alia, Croce v Budget Rent- Car 7 AD3d 748, 776 NYS2d 899 (2 Dept. 2004); Siegel v Sweeney, 266 AD2d 200, 697 NYS2d 317 (2 Dept. 1999). In addition, plaintiff contends that based on the three different descriptions of the accident offered in deposition testimony, there could have been more than one proximate cause of said accident. Forte v City of Albany, 279 NY416, 18 NE2d 643 (C. A. 1939). In viewing motions for summary judgment, it is well settled that summary judgment is a drastic remedy which may only be granted where there is no clear triable issue of fact (see, Andre v Pomeroy, 35 NY2d NYS2d 131, 320 NE2d 853 (C. A. 1974); Mosheyev v Pilevsky, 283 AD2d 469, 725 NYS2d 206 (2 Dept. 2001). Indeed (e)ven the color of a triable issue, forecloses the remedy Rudnitsky v Robbins 191 AD2d 488, 594 NYS2d 354 (2 Dept. 1993)). Moreover "(i)t is axiomatic that summary judgment requires issue finding rather than issue-determination and that resolution of issues of credibility is not appropriate (Greco v Posillco 290 AD2d 532

6 736 NYS2d 418 (2 Dept. 2002); Judice v DeAngelo, 272 AD2d 583, 709 NYS2d 817 Dept. 2000); see also S. J. Capelin Associates, Inc. v Globe Mfg. Corp. 34 NY2d NYS2d NE2d 776 (C. A.1974)). Further, on a motion for summary judgment, the submissions of the opposing party s pleadings must be accepted as true (see Glover v City of New York 298 AD2d NYS2d 393 (2 Dept. 2002)). As is often stated, the facts must be viewed in a light most favorable to the non-moving part. (See Mosheyev v Pilevsky, supra). The burden on the moving party for summary judgment is to demonstrate a prima facie entitlement to judgment as a matter of law by tendering sufficient evidence to demonstrate the absence of any material issue of fact (Ayotte v Gervasio 81 NY2d 1062, 601 NYS2d 463, 619 NE2d 400 (C. 1993); WinfJgrad v New York University Medical Center 64 NY2d 851, 487 NYS2d NE2d 642 (C. A. 1985); Drago v King, 283 AD2d NYS2d 859 (2 Dept. 2001)). If the initial burden is met, the burden then shifts to the non-moving to come forward with evidence to demonstrate the existence of a material issue of fact requiring a trial. (CPLRg 3212, subd (b); see also GTF Marketing, Inc. v Colonial Aluminum Sales, Inc. 66 NY2d 965, 498 NYS2d 786, 489 NE2d 755 (C. A. 1985); Zuckerman v City of New York 49 NY2d 557, 427 NYS2d 595, 404 NE2d 718 (C.A. 1980)). The non-moving party must lay bare all of the facts at its disposal regarding the issues raised in the motion. (Mgrditchian v Donato, 141 AD2d 513, 529 NYS2d 134 (2 Dept. 1988)). In an action where negligence is the basis for liabilty, the unexcused violation of a statutory standard of care is negligence per se and can create liability if found to be the proximate cause of the accident. See, Cordero v City of New York 112 AD2d 914

7 , " 492 NYS2d 430 (2nd Dept. 1985); Koziol v Wright 26 AD3d 793, 809 NYS2d 350 (4 Dept. 2006); Hellenbrecht v Radeker, 309 AD2d 834, 766 NYS2d 81 (2 Dept. 2003); Holleman v Miner, 267 AD2d 867 (3rd Dept. 1999). It is the duty of the driver to operate the vehicle with reasonable care taking into account the actual and potential dangers existing from weather, road, traffc and other conditions. A driver has a duty to maintain a reasonably safe rate of speed, to have the vehicle under reasonable control, to keep a proper lookout under the circumstances and to use reasonable care to avoid an accident. See, Guzzardi v Grotas 98 AD2d 761, 469 NYS2d 475 (2 Dept. 1983); Oberman v Alexander's Rent- Car 56 AD2d 814, 392 NYS2d 662 (1st Dept. 1977); see also, McCauley v ELRAC, Inc. 6 AD3d 584, 775 NYS2d 78 (2 Dept. 2004). The common-law emergency doctrine ''' recognizes that when an actor is faced with a sudden and unexpected circumstance which leaves little or no time for thought deliberation or consideration, or causes the actor to be reasonably so disturbed that the actor must make a speedy decision without weighing alternated courses of conduct, the actor may not be negligent if the actions taken are reasonable and prudent in the emergency context'... provided the actor has not created the emergency situation Caristo v Sanzone 96 NY2d NYS2d NE2d 36 (C. A. 2001); see also Rivera v New York City Transit Authority, supra. As this Court has previously held (tjhere is no legal duty to protect against an occurrence which is extraordinary in nature and, as such would not suggest itself to a reasonably careful and prudent person as one which should be guarded against" (Silver v. Sheraton-Smithtown Inn 121 AD2d NYS2d 56). Viegas v Esposito 135 AD2d 708, 522 NYS2d 608 (2 Dept. 1987).

8 After a careful reading of the submissions herein, it is the judgment of the Court that the issues of fact exist as to the proximate cause of the accident, the degrees of fault of each party, and whether the emergency doctrine is applicable in this instance which are all questions of fact for the jury. Ct., Wheaton v Guthrie 89 AD2d 809, 453 NYS2d 480 (4 Dept. 1982). Summary judgment is not appropriate when issues of comparative fault must be resolved. Rios v Nicoletta 119 AD2d 562, 500 NYS2d 730 Dept. 1986). Plaintiffs counsel has adequately distinguished the case law offered by defendants and the Court concludes that defendants have failed to demonstrate that they are entitled to judgment as a matter of law. On the record before it, the Court finds that plaintiff has raised sufficient issues of fact to require a trial. Accordingly, it is hereby ORDERED that defendants' motion and cross-motion for an order granting summary judgment dismissing the complaint are denied. All further requested relief not specifically granted is denied. This constitutes the decision and order of the Court. Dated: June 8, 2007 WILLIAM R. LaMARCA, J. entered JUI' 1?"LQ\\1 \J COUNTY SS CLERK' S OFFteE COUNTY

9 TO: John V. Mirman, Esq. Attorney for Plaintiff 114 Old Country Road, Suite 600 Mineola, NY Martyn, Toher & Martyn, Esqs. Attorneys for Defendant Sylvester W. Brown 1983 Marcus Avenue, Suite 137 New Hyde Park, NY Robert P. Tusa, Esq. Attorney for Defendants Grine Baker Barnett and Leon Bryant 1225 Franklin Avenue, Suite 500 Garden City, NY gilbert-bamett, bryant&brown #01,#02lsumjudg