Jung v. Glover, 2017–07957

• Decision Date: 13 February 2019
• Docket Number: 2018–02830,Index No. 711882/15,2017–07957
• Citation: 169 A.D.3d 782,93 N.Y.S.3d 390
• Parties: Kristin JUNG, Appellant, v. David GLOVER, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

169 A.D.3d 782

93 N.Y.S.3d 390

Kristin JUNG, Appellant,

v.David GLOVER, et al., Respondents.

2017–07957

2018–02830

Index No. 711882/15

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

Argued—October 4, 2018

February 13, 2019

Forchelli Deegan & Terrana LLP, Uniondale, N.Y. (Peter Basil Skelos and Russell G. Tisman of counsel), for appellant.

Wilson Elser Moskowitz Edelman & Dicker LLP, New York, N.Y. (Joseph Laird of counsel), for respondents David Glover, ARI Fleet LT, and Daikin Applied Americas, Inc.

Mendolia & Stenz (Russo & Tambasco, Melville, N.Y. [Susan J. Mitola], of counsel), for respondent Harry Jung.

MARK C. DILLON, J.P., BETSY BARROS, ANGELA G. IANNACCI, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from (1) an order of the Supreme Court, Queens County (Leonard Livote, J.), entered July 10, 2017, and (2) an order of the same court entered January 8, 2018. The order entered July 10, 2017, insofar as appealed from, denied those branches of the plaintiff's motion which were for summary judgment on the issue of liability against the defendants David Glover, ARI Fleet LT, and Daikin Applied Americas, Inc., dismissing the first, second, fourth, sixth, and eighth affirmative defenses asserted by those defendants, and dismissing the second and fourth affirmative defenses asserted by the defendant Harry Jung. The order entered January 8, 2018, insofar as appealed from, upon reargument, adhered to those determinations in the order entered July 10, 2017.

ORDERED that the appeal from the order entered July 10, 2017, is dismissed, without costs or disbursements, as that order was superseded by the order entered January 8, 2018, made upon reargument; and it is further,

ORDERED that the order entered January 8, 2018, is modified, on the law, by deleting the provisions thereof, upon reargument, adhering to the determinations in the order entered July 10, 2017, denying those branches of the plaintiff's motion which were for summary judgment on the issue of liability against the defendants David Glover and Daikin Applied Americas, Inc., dismissing the second affirmative defense asserted by those defendants and the defendant ARI Fleet LT, and dismissing the second affirmative defense asserted by the defendant Harry Jung, and substituting therefor provisions, upon reargument, vacating those determinations in the order entered July 10, 2017, and, thereupon, granting those branches of the motion; as so modified, the order entered January 8, 2018, is affirmed insofar as appealed from, without costs or disbursements.

The plaintiff was sitting on the passenger seat of a motorcycle operated by the defendant Harry Jung when the motorcycle collided with a van operated by the defendant David Glover. The van was owned by the defendant ARI Fleet LT (hereinafter ARI) and leased to Glover's employer, the defendant Daikin Applied Americas, Inc. (hereinafter Daikin). Prior to the collision, Jung was driving the motorcycle straight in a southerly direction, and Glover, who was driving the van in a northerly direction, was attempting to make a left turn. The plaintiff commenced this action to recover damages for personal injuries that she allegedly sustained in the accident.

Subsequently, the plaintiff moved for summary judgment on the issue of liability and dismissing various affirmative defenses asserted by the defendants. In an order entered July 10, 2017, the Supreme Court granted the plaintiff's motion to the extent that it determined that the plaintiff was free from comparative fault, and denied the motion in all other respects. The plaintiff moved for leave to reargue those branches of her motion which were for summary judgment on the issue of liability against Glover, ARI, and Daikin, and dismissing various affirmative defenses raised by all of the defendants. In an order entered January 8, 2018, the court, among other things, upon reargument, adhered to the determinations in the prior order denying those branches of the plaintiff's motion which were for summary judgment on the issue of liability against Glover, ARI, and Daikin, dismissing the first, second, fourth, sixth, and eighth affirmative defenses asserted by those defendants, and dismissing the second and fourth affirmative defenses asserted by Jung. The plaintiff appeals.

Upon reargument, the Supreme Court should have granted that branch of the plaintiff's motion which was for summary judgment on the issue of liability against Glover. In support of the motion, the plaintiff submitted, inter alia, the deposition testimony of Glover, Jung, and a nonparty witness. While there were some discrepancies between Glover's account of the accident and the accounts of Jung and the nonparty witness, even under Glover's account of the accident, he was negligent in attempting to make a left turn when the turn could not be made with reasonable safety, in violation of Vehicle and Traffic Law §§ 1141 and 1126 (see Yu Mei Liu v. Weihong Liu, 163 A.D.3d 611, 612, 81 N.Y.S.3d 75 ; Lebron v. Mensah, 161 A.D.3d 972, 974, 76 N.Y.S.3d 219 ; Shashaty v. Gavitt, 158 A.D.3d 830, 831–832, 71 N.Y.S.3d 560 ; Ildong Yeo v. Spa Castle, Inc., 131 A.D.3d 1120, 1120–1121, 16 N.Y.S.3d 599 ). In opposition, Glover, ARI, and Daikin failed to raise a triable issue of fact. The right of the plaintiff, as an innocent passenger, to summary judgment is not "restricted by potential issues of comparative negligence" which may exist as between Glover and Jung ( Medina v. Rodriguez, 92 A.D.3d 850, 850, 939 N.Y.S.2d 514 ; see Anzel v....