Kalbfliesh v. McCann, 785 CA 14-01218

• Decision Date: 19 June 2015
• Docket Number: 785 CA 14-01218
• Citation: 129 A.D.3d 1671,12 N.Y.S.3d 472,2015 N.Y. Slip Op. 05363
• Parties: Debora KALBFLIESH and Kenneth Kalbfliesh, Jr., Plaintiffs–Respondents, v. Andrea McCANN, John McCann, Defendants–Respondents, Joseph A. Moses and Smart Ride Ltd., Defendants–Appellants. (Appeal No. 1.).
• Court: New York Supreme Court — Appellate Division

129 A.D.3d 1671

12 N.Y.S.3d 472

2015 N.Y. Slip Op. 05363

Debora KALBFLIESH and Kenneth Kalbfliesh, Jr., Plaintiffs–Respondents

v. Andrea McCANN, John McCann, Defendants–RespondentsJoseph A. Moses and Smart Ride Ltd., Defendants–Appellants. (Appeal No. 1.).

785 CA 14-01218

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

June 19, 2015.

Lippman O'Connor, Buffalo (Gerard E. O'Connor of Counsel), for Defendants–Appellants.

Campbell & Shelton, LLP, Eden, Magavern Magavern Grimm LLP, Buffalo (Edward J. Markarian of Counsel), for Plaintiffs–Respondents.

Hagelin Kent, LLC, Buffalo (Benjamin R. Wolf of Counsel), for Defendants–Respondents.

PRESENT: SCUDDER, P.J., SMITH, SCONIERS, VALENTINO, and DeJOSEPH, JJ.

OpinionMEMORANDUM:

Plaintiffs commenced this action seeking damages for injuries allegedly sustained by Debora Kalbfliesh (plaintiff) when she was a passenger in a van driven by defendant Joseph A. Moses and owned by defendant Smart Ride Ltd. (collectively, defendants) that was rear-ended by a vehicle driven by defendant Andrea McCann (McCann) and owned by defendant John McCann (collectively, McCann defendants). In appeal No. 1, defendants appeal from an order denying their motion for summary judgment dismissing the complaint and the McCann defendants' cross claim against them. In appeal No. 2, defendants appeal from an order denying their motion seeking to settle the record on appeal to exclude a letter to Supreme Court from plaintiffs' counsel. Addressing first the order in appeal No. 2, we perceive no abuse of discretion in the court's settlement of the record (see Matter of Albright [Appeal No. 2], 87 A.D.3d 1294, 1295, 929 N.Y.S.2d 912 ).

With respect to the order in appeal No. 1, however, we agree with defendants that the court erred in denying their motion. Defendants met their initial burden of establishing that McCann's negligence was the sole proximate cause of the accident by submitting evidence that Moses was lawfully slowing to make a right-hand turn, and that the rear-end collision resulted from McCann's admitted failure to pay attention to the road as she retrieved her phone from the floor of her vehicle after it fell (see Giangrasso v. Callahan, 87 A.D.3d 521, 522, 928 N.Y.S.2d 68 ; Newton v. Perugini, 16 A.D.3d 1087, 1088–1089, 791 N.Y.S.2d 742 ; see also Le Grand v. Silberstein, 123 A.D.3d 773, 775, 999 N.Y.S.2d 96 ). In opposition to the motion, plaintiffs and the McCann defendants failed to raise a triable issue of fact whether any negligence attributable to Moses contributed to the accident (see Le Grand, 123 A.D.3d at 775, 999 N.Y.S.2d 96 ; Newton, 16 A.D.3d at 1089, 791 N.Y.S.2d 742 ; see generally Prine v. Santee, 21 N.Y.3d 923, 925, 967 N.Y.S.2d 684, 989 N.E.2d 966 ). Any defect in the right rear turn signal of defendants' van was not a proximate cause of the accident in light of McCann's testimony that she did not see the van until it was too late to avoid it (see Filippazzo v. Santiago,

277 A.D.2d 419, 420, 716 N.Y.S.2d 710 ; see generally Green v. Mower, 302 A.D.2d 1005, 1006, 755 N.Y.S.2d 162, affd. 100 N.Y.2d 529, 761 N.Y.S.2d 137, 791 N.E.2d 394 ; Greene v. Sivret, 43 A.D.3d 1328, 1328–1329, 842 N.Y.S.2d 814 ). We likewise conclude that, under the circumstances of this case, the other alleged acts of negligence by Moses, including any failure to wear corrective eyewear that was required as a restriction...