Donato v. Pasciuta

• Decision Date: 08 January 2020
• Docket Number: Index 625551/2018E
• Citation: 2020 NY Slip Op 34749 (U)
• Parties: Billy J. Donato, Plaintiff, v. Amadeo S. Pasciuta, Phyllis R. Pasciuta and V.F. Severino, Defendants. Vincent Severino, Jr., Plaintiff, v. Amadeo S. Pasciuta, Phyllis R. Pasciuta, Defendants.
• Court: New York Supreme Court

2020 NY Slip Op 34749(U)

Billy J. Donato, Plaintiff,
v.
Amadeo S. Pasciuta, Phyllis R. Pasciuta and V.F. Severino, Defendants.

Vincent Severino, Jr., Plaintiff,
v.
Amadeo S. Pasciuta, Phyllis R. Pasciuta, Defendants.

Index No. 625551/2018E

Supreme Court, Suffolk County

January 8, 2020

Unpublished Opinion

Attorney for Plaintiff: Joseph Farlado, Esq.

Attorney for Defendants Amadeo S. Pasciuta and Phyllis R. Pasciuta: Russo & Tambasco

Attorney for Defendant V.F. Severino: Picciano & Scahill, P.C.

Attorney for Defendant Vincent Severino: Law Offices of Matthew A. Sosnik, Esq.

HON. WILLIAM B. REBOLINI, J.S.C.

Upon the E-file document list numbered 25 to 54 read on the application by plaintiff for an order pursuant to CPLR 3212 granting him partial summary judgment as against defendants Amadeo S. Pasciuta, Phyllis R. Pasciuta, and V.F. Severino, on the issue of liability, and on the application of defendant V.F. Severino for summary judgment pursuant to CPLR 3212 dismissing the complaint and all cross-claims as against him; it is

ORDERED that the motions (Motion Sequence 002 and Motion Sequence 003) are consolidated for purposes of a determination herein; and it is further

ORDERED the plaintiffs motion for summary judgment on the issue of liability as against all defendants is granted; and it is further

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ORDERED that the cross-motion for summary judgment on the issue of liability by defendant V.F. Severino is denied.

This action seeking damages for personal injuries allegedly sustained by plaintiff was commenced by the filing of a summons and complaint on December 31, 2018. The complaint alleges that defendants Amadeo S. Pasciuta ("A. Pasciuta"), Phyllis R. Pasciuta ("P. Pasciuta") (collectively the "Pasciuta defendants"), and V.F. Severino ("Severino") were negligent in causing a motor vehicle accident on February 21, 2017 at approximately 11:00 a.m. at the intersection of 12^th Avenue and 13^th Street, in West Babylon, Suffolk County, New York. Plaintiff alleges that he was an innocent passenger in the Severino vehicle when it became involved in a collision with the Pasciuta vehicle, which resulted from the Pasciuta vehicle failing to stop at a stop sign located on 12^th Avenue. Issue was joined by all defendants and the depositions of the parties have been held. Plaintiff now moves for summary judgment against defendants on the issue of liability. Defendant Severino cross-moves for summary judgment dismissing the complaint and cross-claims asserted against him. The Pasciuta defendants oppose the motions. Defendant Severino replies.

It is well settled that a party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issue of fact (see Alvarez v. Prospect Hasp., 68 N.Y.2d 320, 508 N.Y.S.2d 923 [1986]; Friends of Animals v. Associated Fur Mfrs., 46 N.Y.2d 1065, 1067, 416 N.Y.S.2d 790 [1979]). The failure of the moving party to make a prima facie showing requires the denial of the motion regardless of the sufficiency of the opposing papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 487 N.Y.S.2d 316 [1985]). However, once the movant has made the requisite showing, the burden then shifts to the party opposing the motion to produce evidentiary proof in admissible form sufficient to require a trial on any material issue of fact (Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595 [1980]. To defeat a motion for summary judgment, a party opposing such motion must lay bare his proof in evidentiary form; conclusory allegations are insufficient to raise a triable issue of fact (see Friends of Animals, Inc. v. Associated Fur Mfrs., 46 N.Y.2d 1065, 416 N.Y.S.2d 790; Burns v. City of Poughkeepsie, 293 A.D.2d 435, 739 N.Y.S.2d 458 [2d Dept 2002]). In deciding the motion the Court must view all evidence in the light most favorable to the nonmoving party (Nomura, supra; see also Ortiz v. Varsity Holdings, LLC, 18 N.Y.3d 335, 339, 937 N.Y.S.2d 157 [2011]) A motion for summary judgment should be denied where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility (see Chimbo v. Bolivar, 142 A.D.3d 944, 37 N.Y.S.3d 339 [2d Dept 2016]; Benetatos v. Comerford, 78 A.D.3d 730, 911 N.Y.S.2d 155 [2d Dept. 2010]).

"A plaintiff in a negligence action moving for summary judgment on the issue of liability must establish, prima facie, that the defendant breached a duty owed to the plaintiff and that the defendant's negligence was a proximate cause of the alleged injuries" (Tsyganash v. Auto Mall Fleet Mgmt., Inc., 163 A.D.3d 1033, 83 N.Y.S.3d 74 [2d Dept. 2018]). A violation of a standard of care imposed by the Vehicle and Traffic Law constitutes negligence per se (Lebron v. Mensah, 161 A.D.3d 972, 76 N.Y.S.3d 219 [2d Dept. 2018]; Barbaruolo v. Difede, 73 A.D.3d 957, 900 N.Y.S.2d 671 [2d Dept 2010]; Ciatto v. Lieberman, 266 A.D.2d 494, 698 N.Y.S.2d 54 [2d Dept. 1999]; see also

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Barbieri v. Vokoun, 72 A.D.3d 853, 856, 900 N.Y.S.2d 315 [2d Dept. 2010]; Smith v. State of New York, 121 A.D.3d 1358, 1358-59, 955 N.Y.S.2d 329 [3d Dept. 2014]. Further, a driver with the right of way is entitled to anticipate that other motorists will obey traffic laws that require them to yield the right of way (see Lebron v. Mensah, 161 A.D.3d 972, 76 N.Y.S.3d 219 [2d Dept. 2018]; Bullock v. Calabretta, 119 A.D.3d 884 [2d Dept 2014]; Kucar v. Town of Huntington, 81 A.D.3d 784, 917 N.Y.S.2d 646 [2d Dept 2011]; Todd v Godek, 71 A.D.3d 872 [2d Dept 2010] Kann v. Maggies Paratransit Corp., 63 A.D.3d 792, 882 N.Y.S.2d 129 [2d Dept 2009]; Berner v. Koegel, 31 A.D.3d 591, 819 N.Y.S.2d 89 [2d Dept 2006]; Gabler v. Marly Bldg. Supply Corp., 27 A.D.3d 519, 813 N.Y.S.2d 120 [2d Dept 2006]). In addition, a driver is negligent when an accident occurs because the driver failed to see that which through proper use of the driver's senses he or she should have seen (see Laino v. Lucchese, 35 A.D.3d 672, 827 NYS2D 249 [2d Dept 2006]; Berner v. Koegel, 31 A.D.3d 591, 819 N.Y.S.2d 89 [2d Dept 2006]; Bongiovi v. Hoffman, 18 A.D.3d 686, 795 N.Y.S.2d 354 [2d Dept 2005]). However, "a driver who has the right-of-way has a duty to exercise reasonable care to avoid a collision with another vehicle" (Gause v. Martinez, 91 A.D.3d 595, 936 N.Y.S.2d 272 [2d Dept. 2012] quoting Todd v. Godek, 71 A.D.3d 872, 895 N.Y.S.2d 861 [2d Dept. 2010]; Bonilla v. Calabria, 80 A.D.3d 720 [2d Dept 2011]; Gardner v. Smith, 63 A.D.3d 783 [2d Dept 2009]; Cox v Nunez, 23 A.D.3d 427 [2d Dept 2005]). The question of whether the defendant driver stopped at the stop sign is not dispositive, where it is established that the defendant driver failed to yield the right of way (Fuentes v. City of New York, 146 A.D.3d 936, 45 N.Y.S.3d 562 [2d Dept. 2017]).

There can be more than one proximate cause of an accident and the issue of comparative negligence is generally a question of fact for the jury to decide (see Bullock v. Calabretta, 119 A.D.3d 884, 989 N.Y.S.2d 862 [2d Dept. 2014]; Bonilla v. Calabria, 80 A.D.3d 720 [2d Dept 2011]; Todd v. Godek, 71 A.D.3d 872, 895 N.Y.S.2d 861 [2d Dept. 2010]). The fact that a party violated the Vehicle and Traffic Law would not preclude a finding that comparative negligence by another party contributed to the accident (see Gardner v. Smith, 63 A.D.3d 783 [2d Dept 2009; Cox v. Nunez, 23 A.D.3d 427 [2d Dept 2005]). Notwithstanding, a plaintiff need not prove that he or she was free from comparative fault in order to establish his or her prima facie entitlement to summary judgment (see Rodriguez v. City of New York, 31 N.Y.3d 312, 76 N.Y.S.3d 898 [2018]; Edgerton v. City of New York, 160 A.D.3d 809, 74 N.Y.S.3d 617 [2d Dept 2018]). A plaintiffs right as an innocent passenger to summary judgment on the issue of liability is not barred or restricted by any potential issue of...