SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU ~~ ~~ ~~~ ~~~~~~~~~_~~~~_~X Kevin Pedersen, Jonathan Keeling, Action No. 2

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1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU ~~ ~~ ~~~ ~~~~~~~~~_~~~~_~X Kevin Pedersen, Plaintiff, ActionNo. 1 Index No. 1797/2002 against Motion No. 004 Province of Meribah Society of Mary, Inc. a/k/a Chaminade High School, Jonathan Keeling, Action No. 2 Plaintiff, Index No. 3960/2002 3c;FQ / against Motion No Province of Meribah Society of Mary, Inc. a/k/a Chaminade High School, 2OOL The court has considered the following papers on this motion: Notice of Motion and supporting papers... 1 Notice of Cross Motion and supporting papers Affidavits/affirmations in opposition....3 Reply affidavits/affirmations....4, 5 Plaintiff in action no. 2 moves for an order pursuant to CPLR 3212 granting summary judgment in favor of Jonathan Keeling on the issue of liability and scheduling an inquest on the issue of damages. Plaintiff in action no. 1 cross moves for an order pursuant to CPLR 3212 granting summary judgment in favor of Kevin Pederson on the issue of liability and scheduling an inquest on the issue of damages. Defendant opposes the motions upon the ground that there

2 are triable issues of fact. The motions are granted. Plaintiffs, Jonathan Keeling and Kevin Pederson, were students at Chaminade High School ( Chaminade ). Certain facts are undisputed. In July 2002, plaintiffs were passengers in a van traveling in the state of Arizona as part of a school-sponsored summer trip en route to the Grand Canyon. The van was traveling on Highway 64, which is a two lane highway divided by a double yellow line, when it was involved in a single vehicle accident. The van was driven by a Chaminade employee, Brother Lawrence Zarzycki ( Zarzycki ).Accordingly, defendant is vicariously liable for the negligent acts of Brother Zarzycki (see Riviello v Valdron, 47 NY2d 297,302). The road was wet and free of defects. At approximately 11:45 am, the van went off the road at the location of a slight curve in the road. More specifically, the road curved to the left, but the van continued straight and traveled off the paved section of the road. According to the police report, the van traveled approximately 97 feet off the paved portion of the road before it rolled over. Brother Zarzycki was killed in the incident. Plaintiffs allege they each sustained serious injuries. Plaintiffs contend that Brother Zarzycki s negligence in the operation of the van caused the accident and their injuries. Plaintiffs offer evidence in the form of the pre-trial oral deposition of Donald Keil who was traveling in a vehicle immediately behind the van involved in the accident. According to Mr. Keil s testimony, Brother Zarzycki was driving the van at approximately 55 mph. Mr. Keil stated the Brother Zarzycki s van crossed the center line dividing the opposing lanes of the two lane highway at least once prior to the happening of the accident. Immediately before the accident, the van crossed the line on the right side, the shoulder, of the road. More specifically, Mr. Keil described the accident as follows: 2

3 When we reached the curve this entire line of cars followed the curve to the left, but the van did not turn at all. It remained going straight and as the road curved to the left, the van going straight left the highway and went completely off the highway... It got completely off the shoulder of the road onto the berm of the road and went straight for about 100 yards. And then there was a sharp - the wheels - the front wheels made a sharp left, to the left... As it made that sharp turn to the left and being in the soft soil, it began to roll... I believe it rolled one and a half times... I never did see brake lights at any time during the time I was following this van. Other than the description of the distance the van traveled off of the road (100 yards versus 97 feet), Mr. Kiel s testimony is uncontroverted. Plaintiffs contend that the defendant has failed, and in view of Brother Zarzycki s death, is unable, to offer an exculpatory reason for the van leaving the roadway. The court agrees. In addition, plaintiffs contend there is evidence that Brother Zarzycki fell asleep immediately before the happening of the accident. However, the allegation that the accident was the result of driver fatigue or the driver falling asleep is an issue about which there is a factual dispute. In support of their contention, plaintiffs rely on the hearsay opinion of the investigating highway patrol officer who opined that the accident was caused by the driver falling asleep or driver fatigue. In opposition to this contention, defendant relies on the statements of several eyewitnesses who describe Brother Zarzycki as being awake and alert at the time of the happening of the accident. Defendant s reliance on this question of fact for the purposes of defeating the motion for summary judgment is misplaced. The issue is of no import to the court in reaching its determination as to plaintiffs entitlement to summary judgment. Plaintiffs have, independent of this issue, presented sufficient facts in admissible form to establish defendant s negligence as a matter of law. As the Court of Appeals has observed, the proponent of a motion for summary judgment 3

4 motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (see Alvarez v Prospect Hospital, 68 NY2d 320,324; Giuffra v Citibank Corp., 100 NY2d 72,81). Once this showing has been made, however, the burden shifts to the party opposing the motion for summary judgment to produce evident& proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action Alvarez (see v Prospect Hospital, supra at 324, Giuffrida v Citibank Corp., supra at 81). Speculative and conclusory allegations in opposition are insufficient to defeat a motion for summary judgment (see Maliszewska v Premier Distribution Services, Inc., 306 AD2d 517; Leggio v Gearhart, 294 AD2d 543; Polanco v City of New York, 244 AD2d 322). The courts of our state have consistently held that where the evidence establishes that the accident was the result of one vehicle crossing over into oncoming traffic, a rear-end collision or where the operator otherwise lost control of the motor vehicle, a prima facie case of negligence is established against the operator (see Pfafinbach v White Plains Motor Express Corp., 17 NY2d 132, 135; Dudley v Ford Credit Titling Trust, _ AD2d_; 762 NYS2d 905,2003 WL [2nd Dept Cacace v DiStefano, 276 AD2d 457; Mendiolaza v Novinski, 268 AD2d 462; Lopez v Minot, 258 AD2d 564). Here, the record clearly demonstrates that Brother Zarzycki, an employees of the defendant, negligently lost control of the van in that he drove off the paved roadway and then caused the vehicle to roll over. Under the circumstances described by Mr. Kiel at his examination before trial, the plaintiffs established prima facie that Brother Zarzycki was negligent in failing to maintain the van under control in that he failed to negotiate a turn, which had been safely negotiated by other vehicles proceeding immediately in front of 4

5 Brother Zarzycki s van, after which the vehicle was caused to roll over (see Dud& v Ford Credit Titling Trust, supra; see also Siegel v Terrusa, 222 AD2d 428,429). Defendant has failed to come forward with evidence in admissible to form to demonstrate an exculpatory explanation for Bother Zarzycki s failure to safely negotiate the curve without leaving the road and without causing the van to roll over (see Dud&v v Ford Credit Titling Trust, supra; Doodnauth v Catholic Medical Center of Brooklyn and Queens, 297 AD2d 78 1; Studnick v Selesnick, 265 AD2d 321). Without a material issue of fact as to defendant s negligence there is no issue of liability to be determined by the trier of fact and plaintiffs are entitled to summary judgment as a matter of law (Alvarez v Prospect Hospital, supra). Accordingly, the motion and cross motion by plaintiffs for summary judgment on the issue of liability are granted and these matters shall be set down for a trial on damages. In the interim, it is hereby ORDERED that counsel for the parties shall appear before the undersigned on September 24,2003 at 9:30 am with authority to bind their respective clients to a resolution of these matters. This constitutes the decision and order of the court. September 3,2003 J.S.C. 5