Covey v. Simonton

• Decision Date: 04 April 2007
• Docket Number: No. 04 CV 3273 (NGG) (CLP).,04 CV 3273 (NGG) (CLP).
• Citation: 481 F.Supp.2d 224
• Parties: Lindsay D. COVEY and Sandra E. Covey, Plaintiffs, v. Diana SIMONTON, Charles E. Simonton, and Nikolaos Pahountis Defendants.
• Court: U.S. District Court — Eastern District of New York

Page 224

481 F.Supp.2d 224

Lindsay D. COVEY and Sandra E. Covey, Plaintiffs, v. Diana SIMONTON, Charles E. Simonton, and Nikolaos Pahountis Defendants.

No. 04 CV 3273 (NGG) (CLP).

United States District Court, E.D. New York.

April 4, 2007.

John P. Bostany, The Bostany Law Firm, for Plaintiffs.

Jennifer L. Coviello, Saretsky Katz Dranoff & Glass, LLP, for Charles and Diana Simonton.

Steven J. Weissler, Longo & D'Apice, for Nikolaus Pahountis.

ORDER

GARAUFIS, District Judge.

Lindsay Covey and Sandra Covey (together, "Plaintiffs") allege that a car driven by Diana Simonton and owned by Charles Simonton (together, the "Simontons"), in which Plaintiffs were passengers, collided with a car operated by Nikolaos Pahountis ("Pahountis"), which at the moment of collision was parked on the shoulder of the Gowanus Expressway. Before the court are three motions for summary judgment: (1) the motion filed by Pahountis on March 30, 2006 (Docket No. 58), (2) the motion filed by Plaintiffs on April 1, 2006 (Docket No. 59), and (3) the motion filed by the Simontons on April 3, 2006 (Docket No. 62).

I referred all three motions to the Honorable Cheryl L. Pollak, United States Magistrate Judge, for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and Fed.R.Civ.P. 72(b). (Order dated August 22, 2006.) In response, Judge Pollak recommended that I deny the first two motions in their entirety, grant the third motion with respect to Sandra Covey's claims, and deny the third motion with respect to Lindsay Covey's claims. (Report and Recommendation dated March 16, 2007 at 29.)

No party has filed an objection to Judge Pollak's Report and Recommendation. The ten-day period for doing so has expired.. 28 U.S.C. § 636(b)(1)(B); Fed. R.Civ.P. 72(b). This court therefore "need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation." Advisory Committee Notes to Fed.R.Civ.P. 72(b) (1983 Addition); see also CSI Inv. Partners II, L.P. v. Cendant Corp., 180 F.Supp.2d 444, 447 (S.D.N.Y.2001).

I have reviewed Judge Pollak's thorough and well-reasoned Report and Recommendation. I find, on the face of the record, that the Report and Recommendation contains no clear errors. I therefore order as follows:

(1) The Report and Recommendation of Judge Pollak dated March 16, 2007 is approved, adopted, and ratified by this court;

(2) Pahountis's motion for summary judgment is DENIED;

(3) Plaintiffs' motion for summary judgment is DENIED;

(4) The Simontons' motion for summary judgment is GRANTED with respect .to Sandra Covey's claims, which are dismissed with prejudice, and DENIED with respect to Lindsay Covey's claims; and

(5) The parties shall inform the court within ten days of the date of this Order whether they consent to a trial before Judge Pollak pursuant to 28 U.S.C. § 636(c).

SO ORDERED.

REPORT AND RECOMMENDATION

POLLAK, United States Magistrate Judge.

On July 30, 2004, plaintiffs Lindsay D. Covey and Sandra E. Covey ("plaintiffs") commenced' this personal injury action against Diana Simonton, Charles E. Simonton (the "Simonton defendants") and Nikolaos Pahountis ("Pahountis"), seeking damages for injuries incurred during an automobile accident that occurred on May 9, 2004. By Notice of Motion dated March 30, 2006, defendant Pahountis moved for summary judgment on the issue of liability as to all claims and cross claims against him. Thereafter, on April 1, 2006, the plaintiffs also moved for summary judgment against the Simonton defendants on the issue of liability. The Simonton defendants then filed cross-motions for summary judgment against both defendant Pahountis and the plaintiffs on April 3, 3006.

By Order dated August 22, 2006, the various motions for summary judgment were referred to the undersigned to prepare a Report and Recommendation.

FACTUAL BACKGROUND

On May 9, 2004, plaintiff Lindsay D. Covey, age 22, was a passenger, along with her 21-year-old sister, Sandra E. Covey, in a car driven by Diana Simonton, and owned by Ms. Simonton's father, Charles E. Simonton. (Pls.' Stmnt ¶ 1; L. Covey Decl. ¶ 1; Defs.' Resp. ¶ 1).¹ In the course of driving from Bay Ridge, Brooklyn into Manhattan, the Simonton vehicle entered the Gowanus Expressway at the 86th Street entrance. (Pls.' Stmnt ¶¶ 4, 5; L. Covey Decl. 112; Defs.' Resp. ¶ 4). Plaintiffs allege that at the time, Ms. Simonton was speeding at least ten miles per hour faster than the fifty-mile-per-hour speed limit. (Pls.' Stmnt ¶¶ 3, 8; L. Covey Decl. ¶ 5). The Simonton defendants deny that Ms. Simonton was speeding. (Defs.' Resp. ¶¶ 3, 8).

According to Ms. Covey, the Simonton vehicle proceeded in the right-hand lane of traffic on the Gowanus Expressway despite the fact that a sign indicated that the right lane was only to be used by vehicles exiting at 65th Street. (Pls.' Stmnt ¶¶ 4, 5, 8; L. Covey Decl. ¶¶ 5, 6). The Simonton defendants deny that the entire right lane is designated "Exit Only" or that the lane is reserved for vehicles exiting at 65th Street. (Defs.' Resp. ¶¶ 5, 6). These defendants also deny that Ms. Simonton passed a sign reading "Exit Only" prior to the accident in question. (Id. ¶ 7).

Plaintiff Lindsay Covey claims that despite her request that Ms. Simonton slow down, the defendant continued to drive at an excessive rate of speed in the right lane until she encountered a mattress in the roadway. (Pls.' Stmnt ¶¶ 8-9; L. Covey Decl. ¶¶ 5-7). Instead of moving into the center lane to avoid the mattress, plaintiffs allege that Ms. Simonton veered onto the right shoulder and continued to travel some distance before striking the Pahountis vehicle, which was parked on the shoulder of the Expressway. (Pls.' Stmnt ¶¶ 9, 10; L. Covey Decl. ¶¶ 7, 9). The Simonton defendants admit that the car drove onto the shoulder to avoid the mattress, and because traffic blocked the left lane, but deny that it traveled any great distance, contending instead that the mattress was less than two or three car lengths behind the Pahountis vehicle, almost alongside it. (Defs.' Resp. ¶ 3, 9). Defendant Pahountis contends that the Pahountis vehicle was approximately eighteen (18) car-lengths from the mattress at the time of the impact. (Pahountis Dep.² at 27). According to Ms. Covey, the area was well-lit, the lights and hazard lights on the Pahountis vehicle were illuminated,³ and she could see the Pahountis vehicle from the moment Ms. Simonton drove onto the shoulder. (Pls.' Stmnt ¶¶ 12, 13; L. Covey Decl. ¶¶ 8 9). The Simonton defendants deny that the area was well-lit and contend that not only were there no street lights in the area, but that the Pahountis vehicle's lights and hazard lights were not on. (Defs.' Resp. ¶¶ 12, 13).

DISCUSSION

A. Standards for Summary Judgment

It is well-settled that a party moving for summary judgment has the burden of establishing that there is no genuine issue of material fact in dispute and that the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Ford v. Reynolds, 316 F.3d 351, 354 (2d Gir.2003); Thompson v. Gjivoje, 896 F.2d 716, 720 (2d Cir.1990). Since summary judgment is an extreme remedy, cutting off the rights of the non-moving party to present a case to the jury, see Egelston v. State Univ. Coll. at Geneseo, 535 F.2d 752, 754 (2d Cir.1976); Gibralter v. City of New York, 612 F.Supp. 125, 133-34 (E.D.N.Y.1985) (stating that summary judgment "is a drastic remedy and should be applied sparingly"), the Court should hot grant summary judgment unless "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him [or her] to relief." Egelston v. State Univ. Coll. at Geneseo, 535 F.2d at 754 (internal citations omitted); see also Auletta v. Tully, 576 F.Supp. 191, 194-95 (N.D.N.Y.1983), aff'd, 732 F.2d 142 (2d Cir.1984) (stating that summary judgment should be granted only if "it is clear that the requirements of Fed.R.Civ.P. 56 have been satisfied"). In addition, "the inferences to be drawn from the underlying facts ... must be viewed in the light most favorable to the party opposing the motion.'" Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587-88, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (quoting United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962)); see also Ford v. Reynolds, 316 F.3d at 354 (stating that Tin determining whether a genuine issue of material fact exists, a court Must examine the evidence in the light most favorable to, and draw all inferences in favor of, the non-movant") (citing Marvel Characters v. Simon, 310 F.3d 280, 285-86 (2d Cir. 2002)).

Once the moving party discharges its burden of proof under Rule 56(c), the party opposing summary judgment "has the burden of coming forward with `specific facts showing that there is a genuine issue for trial.'" Phillips v. Kidder, Peabody & Co., 782 F.Supp. 854, 858 (S.D.N.Y.1991) (quoting Fed.R.Civ.P. 56(e)). Rule 56(e) "provides that a party opposing a properly supported motion for summary judgment may not rest upon mere allegation or denials of his pleading." Anderson v. Liberty Lobby, Inc., 477 U.S. at 256, 106 S.Ct, 2505. Indeed, "the mere existence of some alleged factual dispute between the parties" alone will not defeat a properly supported motion for summary judgment. Id. at 247-48 (emphasis in original). Rather, enough evidence must favor the non-moving party's case such that a jury could return a verdict in its favor. Anderson v. Liberty Lobby, Inc., 477 U.S. at 248, 106 S.Ct. 2505.

In a negligence case such as this, summary judgment is "`highly unusual' ... because such a case requires a determination of the reasonableness of a party's conduct, and the assessment of reasonableness generally is a factual question to be addressed by the jury.'" Maizous v. Garraffa...