Dolce v. Cucolo

• Decision Date: 30 May 2013
• Parties: Mark DOLCE, Appellant, v. Nicholas CUCOLO et al., Defendants, and Ellen C. Sheridan, Respondent.
• Court: New York Supreme Court — Appellate Division

106 A.D.3d 1431

966 N.Y.S.2d 581

2013 N.Y. Slip Op. 03904

Mark DOLCE, Appellant,

v. Nicholas CUCOLO et al., Defendants,andEllen C. Sheridan, Respondent.

Supreme Court, Appellate Division, Third Department, New York.

May 30, 2013.

Basch & Keegan, LLP, Kingston (John A. DeGasperis of counsel), for appellant.

Law Office of Craig P. Curcio, Middletown (Kevin P. Ahrenholz of counsel), for respondent.

Before: LAHTINEN, J.P., STEIN, McCARTHY and EGAN JR., JJ.

McCARTHY, J.

Appeal from an order of the Supreme Court (Zwack, J.), entered February 27, 2012 in Ulster County, which, among other things, granted defendant Ellen C. Sheridan's motion for summary judgment dismissing the complaint and cross claims against her.

Plaintiff was driving his motorcycle southbound on Route 32 in the Village of New Paltz, Ulster County. Defendant Ellen C. Sheridan (hereinafter defendant) was ahead of plaintiff in the southbound lane but, despite having a green light and the right-of-way, defendant stopped before reaching the upcoming intersection and gestured to defendant Nicholas Cucolo, who was waiting in the northbound lane to make a left turn into a gas station parking lot just north of the intersection. As Cucolo turned left, he struck plaintiff, who had passed defendant on the right. Plaintiff commenced this negligence action against defendant, Cucolo and his father, who owned the vehicle that Cucolo was driving. Defendant moved for summary judgment dismissing the complaint and cross claims against her and plaintiff cross-moved for partial summary judgment on the issue of liability. Supreme Court granted defendant's motion and denied plaintiff's cross motion. Plaintiff appeals, challenging only the dismissal of his complaint against defendant.

Defendant owed plaintiff a duty of reasonable care. Whether a duty is owed is a question of law to be decided by the court ( see 532 Madison Ave. Gourmet Foods v. Finlandia Ctr., 96 N.Y.2d 280, 288, 727 N.Y.S.2d 49, 750 N.E.2d 1097 [2001];Rossal–Daub v. Walter, 97 A.D.3d 1006, 1007, 948 N.Y.S.2d 765 [2012] ). Motorists generally owe a duty to other motorists and pedestrians to operate their vehicles with reasonable care, be aware of their surroundings and take ordinary care under the circumstances to avoid an accident ( see Ranaudo v. Key, 83 A.D.3d 1315, 1316, 921 N.Y.S.2d 407 [2011] ). When one driver chooses to gratuitously signal to another person, indicating that it is safe to proceed or that the signaling driver will yield the right-of-way, the signaling driver assumes a duty to do so reasonably under the circumstances; this duty is owed to pedestrians and other motorists and passengers as well as to the person who is being signaled ( see Ohlhausen v. City of New York, 73 A.D.3d 89, 92–93, 898 N.Y.S.2d 120 [2010];see e.g. Golding v. Farmer, 273 A.D.2d 834, 834, 710 N.Y.S.2d 213 [2000];Shapiro v. Mangio, 259 A.D.2d 692, 692–693, 686 N.Y.S.2d 846 [1999];Barber v. Merchant, 180 A.D.2d 984, 986–987, 580 N.Y.S.2d 573 [1992];see also Kievman v. Philip, 84 A.D.3d 1031, 1032–1033, 924 N.Y.S.2d 112 [2011] ).

It is undisputed that defendant, while on a roadway normally characterized by high traffic, had the right-of-way and was aware that vehicles were behind her, but stopped and gestured to Cucolo, causing him to make his intended left turn. Contrary to Supreme Court's holding, the interpretation of defendant's gesture and whether Cucolo relied on it are relevant to determining the issues of breach and proximate cause, not whether defendant owed plaintiff a duty of reasonable care ( see Ohlhausen v. City of New York, 73 A.D.3d at 93–94, 898 N.Y.S.2d 120;Shapiro v. Mangio, 259 A.D.2d at 692, 686 N.Y.S.2d 846;Barber v. Merchant, 180 A.D.2d at 986, 580 N.Y.S.2d 573). Because defendant owed plaintiff a duty of care to operate her vehicle in a reasonable manner and signal other drivers consistent with that duty, Supreme Court erred in granting defendant summary judgment on the ground that she did not owe plaintiff a duty.

Defendant did not meet her burden of proving her entitlement to summary judgment because there are questions of fact concerning breach and proximate cause. Proximate cause is generally a factual issue to be resolved by a jury ( see Grant v. Nembhard, 94 A.D.3d 1397, 1398, 943 N.Y.S.2d 272 [2012];Bailey v. County of Tioga, 77 A.D.3d 1251, 1253, 910 N.Y.S.2d 230 [2010] ). In cases where one driver gestures to another, proximate cause of the collision depends on whether the recipient of the gesture relied on it as an indication that the path was safe and clear ( see Ohlhausen v. City of New York, 73 A.D.3d at 95–96, 898 N.Y.S.2d 120;Shapiro v. Mangio, 259 A.D.2d at 692, 686 N.Y.S.2d 846;Barber v. Merchant, 180 A.D.2d at 986, 580 N.Y.S.2d 573). Supreme Court acknowledged that the record contains a factual question as to whether there were two southbound driving lanes at, or just prior to, the location of the accident or whether plaintiff drove through parking spaces to pass defendant on the right. Defendant argues that, as a matter of law, Cucolo could not have relied on or interpreted her hand gesture as signifying that there was no oncoming traffic because Cucolo testified that “it [was a] one-lane road” where he turned and, because he did not think that there could be traffic in another lane, her gesture was not a proximate cause of the accident. This argument reads Cucolo's testimony too narrowly, rather than in the light most favorable to plaintiff....