Gezelter v. Pecora, 2014-09397

• Decision Date: 24 June 2015
• Docket Number: 2014-09397
• Citation: 129 A.D.3d 1021,13 N.Y.S.3d 141,2015 N.Y. Slip Op. 05440
• Parties: Francine GEZELTER, appellant, v. Giuseppe PECORA, respondent.
• Court: New York Supreme Court — Appellate Division

129 A.D.3d 1021

13 N.Y.S.3d 141

2015 N.Y. Slip Op. 05440

Francine GEZELTER, appellant

v.Giuseppe PECORA, respondent.

2014-09397

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

June 24, 2015.

Michael F. Mongelli II, P.C., Flushing, N.Y. (Martin C. Chow of counsel), for appellant.

Karen L. Lawrence (Sweetbaum & Sweetbaum, Lake Success, N.Y. [Marshall D. Sweetbaum ], of counsel), for respondent.

PETER B. SKELOS, J.P., JOHN M. LEVENTHAL, LEONARD B. AUSTIN, and ROBERT J. MILLER, JJ.

Opinion

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Lebowitz, J.), entered July 16, 2014, which granted the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, with costs, and the defendant's motion for summary judgment dismissing the complaint is denied.

The plaintiff, while operating her husband's vehicle, was involved in a collision with a vehicle owned and operated by the defendant, at the intersection of 164th Street and 33rd Avenue in Queens. The plaintiff's vehicle had been traveling northbound on 164th Street, a two-way street, while the defendant's vehicle had been traveling eastbound on 33rd Avenue, which is also a two-way street. The subject intersection was controlled by a stop sign for traffic traveling on 164th Street, while vehicles traveling on 33rd Avenue were not governed by any traffic control devices.

The plaintiff commenced this action to recover damages for the injuries she allegedly sustained in the accident. The defendant moved for summary judgment dismissing the complaint on the ground that the plaintiff violated Vehicle and Traffic Law § 1142(a) by failing to yield the right-of-way to his vehicle. The Supreme Court granted the motion. We reverse.

“A defendant moving for summary judgment in a negligence action has the burden of establishing, prima facie, that he or she was not at fault in the happening of the subject accident” (Boulos v. Lerner–Harrington, 124 A.D.3d 709, 709, 2 N.Y.S.3d 526 ; see Rungoo v. Leary, 110 A.D.3d 781, 782, 972 N.Y.S.2d 672 ). “ ‘There can be more than one proximate cause of an accident’ ” (Lopez v. Reyes–Flores, 52 A.D.3d 785, 786, 861 N.Y.S.2d 389, quoting Cox v. Nunez, 23 A.D.3d 427, 427, 805 N.Y.S.2d 604 ), and [g]enerally it is for the trier of fact to determine the issue of proximate cause (Kalland v. Hungry Harbor Assoc., LLC, 84 A.D.3d 889, 889, 922 N.Y.S.2d 550 ; see Howard v. Poseidon Pools, 72 N.Y.2d 972, 974, 534 N.Y.S.2d 360, 530 N.E.2d 1280 ).

A driver traveling with the right-of-way may be found to have contributed to the happening of the accident if he or she did not use reasonable care to avoid the accident (see Arias v. Tiao, 123 A.D.3d 857, 1 N.Y.S.3d 133 ; Cajas–Romero v. Ward, 106 A.D.3d 850, 851, 965 N.Y.S.2d 559 ; Shui–Kwan Lui v. Serrone, 103 A.D.3d 620, 959 N.Y.S.2d 270 ; Todd v. Godek, 71 A.D.3d 872, 872, 895 N.Y.S.2d 861 ) or failed to see “what is there to be seen through the proper use of his or her senses” (Lu Yuan Yang v. Howsal Cab Corp., 106 A.D.3d 1055, 1056, 966 N.Y.S.2d 167 ; see Bullock v. Calabretta, 119 A.D.3d 884, 885, 989 N.Y.S.2d 862 ; Colpan v. Allied Cent. Ambulette, Inc., 97 A.D.3d 776, 777, 949 N.Y.S.2d 124 ).

At the outset, contrary to the plaintiff's contention, the defendant submitted admissible evidence along with his attorney's affirmation. “[T]he failure to submit an affidavit by a person with knowledge of the facts is not necessarily fatal to a motion where ... the moving party submits other proof, such as deposition testimony” (Vetrano v. J. Kokolakis Contr., Inc., 100 A.D.3d 984, 986, 954 N.Y.S.2d 646 ; see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 325, 508 N.Y.S.2d 923, 501 N.E.2d 572 ; Olan v. Farrell Lines, 64 N.Y.2d 1092, 1093, 489 N.Y.S.2d 884, 479 N.E.2d 229 ; Notskas v. Longwood Assoc., LLC, 112 A.D.3d 599, 599–600, 976 N.Y.S.2d 176 ; Maragos v. Sakurai, 92 A.D.3d 922, 923, 938 N.Y.S.2d 908 ). Here, the defendant's certified deposition transcript, although unsigned, was admissible since it was his own testimony that he was proffering in support of his motion and, in effect, he adopted it as accurate (see Pavane v. Marte, 109 A.D.3d 970, 970, 971 N.Y.S.2d 562 ; Vetrano v. J. Kokolakis Contr., Inc., 100 A.D.3d at 986, 954 N.Y.S.2d 646 ; Rodriguez v. Ryder Truck, Inc., 91 A.D.3d 935, 936, 937 N.Y.S.2d 602 ). In addition, the transcript of the plaintiff's deposition testimony, which was unsigned, was also admissible for the purpose of the defendant's motion, since the transcript was certified by the reporter and the plaintiff did not challenge its accuracy (see Rodriguez v. Ryder Truck, Inc., 91 A.D.3d at 936, 937 N.Y.S.2d 602 ; Zalot v. Zieba, 81 A.D.3d 935, 936, 917 N.Y.S.2d 285 ).

With respect to the police accident report submitted by the defendant in support of his motion, it was not certified as a business record and thus constituted inadmissible hearsay (see CPLR 4518[a] ; Hazzard v. Burrowes, 95 A.D.3d 829, 943 N.Y.S.2d 213 ; Hernandez v. Tepan, 92 A.D.3d 721, 722, 938 N.Y.S.2d 475 ; Rodriguez v. Ryder Truck, Inc., 91 A.D.3d at 936, 937 N.Y.S.2d 602 ), except for that portion of the report which contained a party admission by the plaintiff that she did not have a recollection of the accident (see Jackson v. Trust, 103 A.D.3d 851, 852, 962 N.Y.S.2d 267 ; Scott v. Kass, 48 A.D.3d 785, 786, 851 N.Y.S.2d 649 ; Kemenyash v. McGoey, 306 A.D.2d 516, 516, 762 N.Y.S.2d 629 ).

With respect to the merits of the defendant's motion, the defendant failed to demonstrate his prima facie entitlement to judgment as a matter of law. While he submitted evidence that the plaintiff failed to yield the right-of-way...