A.H. v. Precision Indus. Maint. Inc.

• Decision Date: 14 June 2021
• Docket Number: 1:19-CV-298 (FJS/CFH)
• Parties: A.H. by his m/n/g Esther Horowitz, C.H. by her m/n/g Esther Horowitz, and MENDY HOROWITZ, Plaintiffs v. PRECISION INDUSTRIAL MAINTENANCE INC. and LELAND THOMAS, Defendants.
• Court: U.S. District Court — Northern District of New York

A.H. by his m/n/g Esther Horowitz,C.H. by her m/n/g Esther Horowitz,and MENDY HOROWITZ, Plaintiffs v. PRECISION INDUSTRIAL MAINTENANCE INC.and LELAND THOMAS, Defendants.

1:19-CV-298 (FJS/CFH)

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

Dated: June 21, 2021

June 14, 2021

APPEARANCES

OF COUNSEL

LAW OFFICES OF ADAM J. ROTH

112 Madison Avenue, 6th Floor

New York, New York 10016

Attorneys for Plaintiffs

ADAM ROTH, ESQ.

GOLDBERG SEGALLA, LLP

8 Southwoods Boulevard, Suite 300

Albany, New York 12211-2526

Attorneys for Defendants

THOMAS P. ARMSTRONG, ESQ.

SCULLIN, Senior Judge

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

Plaintiffs A.H. ("Plaintiff A.H.") and C.H. ("Plaintiff C.H."), by their mother and natural guardian Esther Horowitz ("Mrs. Horowitz"), and Plaintiff Mendy Horowitz ("Plaintiff Horowitz") brought this personal injury action against Precision Industrial Maintenance Inc. ("Defendant Precision") and its employee, Leland Thomas ("Defendant Thomas"), hereinafter collectively referred to as "Defendants," seeking a judgment in excess of the $75,000 jurisdictional limit required for diversity jurisdiction See generally Dkt. No. 1, Complaint.

II. PROCEDURAL HISTORY

Plaintiffs filed their complaint against Defendants on February 1, 2019, after an alleged motor vehicle collision that occurred on August 9, 2018 (the "Collision"). See generally Dkt. No. 1. In response, Defendants filed their answer with affirmative defenses. See generally Dkt. No. 5. Plaintiffs then moved for partial summary judgment on the issue of liability and to strike Defendants' affirmative defenses of comparative negligence and failure to use a seatbelt. See generally Dkt. No. 23-1. Defendants then filed a cross-motion for summary judgment to dismiss Plaintiffs A.H.'s and C.H.'s claims based on the serious injury threshold, see generally Dkt. No. 27-11, and then subsequently filed an amended cross-motion for summary judgment, see Dkt. No. 28. On February 2, 2021, Plaintiffs' counsel filed a Declaration dated December 22, 2020, stating that the parties had settled Plaintiff C.H.'s claims.¹ See Dkt. No. 33.

Pending before the Court are Plaintiffs' motion for partial summary judgment and Defendants' cross-motion for summary judgment pursuant to Rule 56(a) of the Federal Rules of Civil Procedure. See Dkt. Nos. 23, 27, 28. To resolve these motions, the Court must determine the following:

(1) Whether Plaintiffs were comparatively negligent and whether Plaintiff A.H. failed to use a seatbelt in the Collision;(2) Whether Defendant Thomas' prior guilty plea to the violation of New York Vehicle and Traffic Law ("VTL") Section 1110(a) constitutes negligence per se;

(3) Whether Defendant Thomas was negligent by crossing the double yellow line immediately prior to the Collision, if the Court does not determine that he was negligent per se; and

(4) Whether the injuries that Plaintiff A.H. suffered as a result of the Collision meet the serious injury threshold under New York Insurance Law § 5104(a).

III. DISCUSSION

A. Standard of review

Under Rule 56(a) of the Federal Rules of Civil Procedure, a party is entitled to summary judgment on a claim or defense when the moving party shows that (1) no genuine dispute of material fact exists, and (2) it is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a). Initially, the moving party bears the burden of showing through admissible evidence that no genuine issue of material fact exists. See Lee v. City of Troy, No. 1:19-CV-473, ___ F. Supp. 3d ___, 2021 WL 567240, *7 (N.D.N.Y. Feb. 16, 2021) (citing Salahuddin v. Goord, 467 F.3d 263, 272-73 (2d Cir. 2006)). Upon making that showing, the burden shifts to the non-moving party to show through admissible evidence that a genuine issue of material fact exists. See id. (citing [Salahuddin, 467 F.3d] at 273).

A fact is considered material if it might impact the outcome of the action under governing substantive law and a dispute of material fact is considered genuine where a reasonable jury viewing the evidence could rule in the nonmoving party's favor. See Sanders v. Torres, No. 9:19-CV-697 (GTS/CFH), 2021 WL 799263, *7 (N.D.N.Y. Feb. 8, 2021) (citing Anderson [v. Liberty Lobby, Inc.], 477 U.S. at 248). In determining whether a genuine issue of material factexists, "the Court must resolve all ambiguities and draw all reasonable inferences against the moving party." Lee, 2021 WL 567240, at *8 (citing Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 309 (2d Cir. 2008)). Additionally, to survive a motion for summary judgment, the nonmoving party must do more than rely on "conclusory allegations or denials" or speculate and cast "metaphysical doubt" on the material facts in question. See Sanders, 2021 WL 799263, at *8 (citations omitted).

B. Plaintiffs' motion for summary judgment

1. Plaintiffs' comparative negligence and Plaintiff A.H.'s use of a seatbelt

"'Federal courts may deem a claim abandoned when a party moves for summary judgment on one ground and the party opposing summary judgment fails to address the argument in any way.'" Moore v. Keller, 498 F. Supp. 3d 335, 346 (N.D.N.Y. 2020) (quoting Frantti v. New York, 414 F. Supp. 3d 257, 291 (N.D.N.Y. 2019) (quoting Taylor v. City of N.Y., 269 F. Supp. 2d 68, 75 (E.D.N.Y. 2003))). As the Second Circuit has explained, "a partial opposition [to a motion for summary judgment] may imply an abandonment of some claims or defenses. Generally, but perhaps not always, a partial response reflects a decision by a party's attorney to pursue some claims or defenses and to abandon others." Jackson v. Fed. Express, 766 F.3d 189, 196 (2d Cir. 2014). Thus, where a counseled party's abandonment of a claim or defense may be fairly inferred from his submissions and the circumstances as a whole, the Court may conclude that the party intentionally abandoned such claim or defense. See id.

As to Plaintiffs' argument that the Court should strike Defendants' comparative negligence and seatbelt affirmative defenses, Defendants fail to refute or even address theseissues in either their opposition to Plaintiffs' motion or their cross-motion for summary judgment. See generally Dkt. No. 27-11. Plaintiffs supported this part of their motion with testimony from both Plaintiff Horowitz and Mrs. Horowitz stating that Plaintiff A.H. was wearing a seatbelt. See Dkt. Nos. 23-7 at 47, 51-52; 23-9 at 19. Since Defendants have not addressed Plaintiffs' argument or refuted the testimony Plaintiffs have provided, the Court holds that Defendants have abandoned their affirmative defenses that Plaintiffs were comparatively negligent and that Plaintiff A.H. was not wearing a seatbelt and grants Plaintiffs' motion for partial summary judgment to strike these affirmative defenses.

2. Defendants' negligence

For a plaintiff to establish negligence under New York law, he must show that (1) the defendant has a duty to act in a certain manner in relation to the plaintiff; (2) the defendant breached this duty; and (3) the plaintiff was injured as a result of the breach. See McGrath v. Indus. Waste Techs., No. 20 Civ. 2858 (KPF), 2021 WL 791537, *9 (S.D.N.Y. Feb. 26, 2021) (quoting Caronia v. Philip Morris USA, Inc., 715 F.3d 417, 428 (2d Cir. 2013) (quoting Akins v. Glens Falls City Sch Dist., 53 N.Y.2d 325, 333 (1981))). New York law provides that a defendant's unexcused violation of a statute establishing a standard of care constitutes negligence per se; however, the plaintiff is still required to show that the violation proximately caused the occurrence in question. See id. (citing Dalal v. City of New York, 629 N.Y.S.2d 468, 469 (2d Dep't 1999)); (quoting Dance v. Town of Southampton, 467 N.Y.S.2d 203, 206 (2d Dep't 1983)). Sections of the New York VTL relating to the operation of a vehicle create a statutory standard of care. See Mahar v. US Xpress Enters., Inc., 688 F. Supp. 2d 95, 108 (N.D.N.Y. 2010) (citing [Dalal, 262 A.D.2d at 597]) (other citation omitted). Therefore, when evidence establishes boththat the defendant inexcusably violated New York's VTL and that the violation proximately caused the plaintiff harm, the plaintiff is entitled to summary judgment on the issue of liability. See Moe. v. United States, 668 F. Supp. 2d 497, 503 (W.D.N.Y. 2009) (citing Stalikas v. United Materials, L.L.C., 306 A.D.2d 810, 760 N.Y.S.2d 804, 805 (4th Dep't 2003) (holding, in the context of a personal injury action to recover injuries sustained in five-vehicle collision in which defendant driver was allegedly following too closely in violation of N.Y. Veh. & Traf. Law § 1129, that "even in the event that the jury found that defendants violated the statute, it is evident that, based upon the nonnegligent explanations of defendants credited by the jury, the jury would have found that any violation was excused.")); see also Castle v. United States, No. 1:15-CV-0197 (GTS/TWD), 2017 WL 6459514, *11 (N.D.N.Y. Dec. 18, 2017) (collecting cases stating this principle).

New York VTL § 1110(a), which is at issue here, relates to the operation of a vehicle as it provides that "every person shall obey the instructions of any official traffic-control device applicable to him" and one cannot disobey a traffic control device when his vehicle is not in operation. People v. Erdman, 145, Misc. 2d 358, ___, 546 N.Y.S.2d 775, 775, 776-77 (N.Y. J. Ct. 1989) (stating that "[a] violation of [§ 1110(a)] is a traffic infraction and a moving violation" and holding that defendant was not guilty of violating § 1110(a) where "the vehicle was not in operation, and therefore no true moving violation actually occurred"). Therefore, it imposes a statutory duty of care upon motor vehicle drivers to obey the instructions of all official traffic-control devices that apply to them when they encounter them on the road. Markings on the road, such as double yellow lines, are considered a traffic-control device under VTL § 1110(a). See People v. Quiros, No. 2019-490 W CR, 2020 WL...