Keller v. Kruger

• Citation: 2013 N.Y. Slip Op. 23073,39 Misc.3d 720,961 N.Y.S.2d 876
• Court: New York Supreme Court
• Decision Date: 14 March 2013
• Parties: Robert W. KELLER and Michael R. Hudson, Plaintiffs, v. Douglas KRUGER, Yolanda Silvera, Tully Construction Co., Inc., and Lockwood, Kessler & Bartlett, Inc., Defendants.

39 Misc.3d 720
961 N.Y.S.2d 876
2013 N.Y. Slip Op. 23073

Robert W. KELLER and Michael R. Hudson, Plaintiffs,
v.
Douglas KRUGER, Yolanda Silvera, Tully Construction Co., Inc., and Lockwood, Kessler & Bartlett, Inc., Defendants.

Supreme Court, Kings County, New York.

March 14, 2013.

[961 N.Y.S.2d 880]

David F. Everett, Esq., for Plaintiffs Robert W. Keller and Michael R. Hudson.

John E. Hannum, Esq. of Hannum Feretic Prendergast & Merlino, LLC., for Defendants Douglas Kruger and Yolanda Silvera.

Todd A. Paradeis, Esq. of Fabiani Cohen & Hall, LLP, for Defendant/third-party Defendant Tully Construction Co., Inc.

Joshua M. Jemal, Esq. of Lester Schwab Katz & Dwyer, LLP, for Defendant/third-party Plaintiff Lockwood, Kessler & Bartlett, Inc.

JACK M. BATTAGLIA, J.

On August 13, 2009, while high on crack cocaine, defendant Yolanda Silvera, drove a vehicle, owned by defendant Douglas Kruger, into a portion of Rockaway Boulevard that was under construction, striking plaintiff Robert W. Keller, who was working as a “flagman” for defendant Tully Construction Co. Inc., and striking plaintiff Michael R. Hudson, who was a driver/equipment operator employed by nonparty Durso Transportation Corp. Nonparty David Kruger, defendant Douglas Kruger's son, was a passenger in the vehicle operated by Yolanda Silvera. The roadway was owned by the State of New York, who entered into a contract with defendant Lockwood, Kessler & Bartlett, Inc. (“Lockwood”) to serve as a consultant engineer, and entered into contact with defendant Tully Construction Co., Inc. (“Tully”) to serve as general contractor for the roadwork.

In the Verified Complaint, Plaintiffs allege, among other things, that defendant Yolanda Silvera was negligent and reckless in her operation of the vehicle, and that she operated the vehicle with the permission of defendant Douglas Kruger. Plaintiffs further allege, among other things, that defendants Tully and Lockwood were negligent and violated Labor Law § 241(6) in failing to, among other things, take adequate measures, including proper placement of attenuator trucks, to prevent vehicles from entering into the area of the roadway that was under construction.

Plaintiffs' Motion for Summary Judgment as Against Defendants Silvera and Kruger

Plaintiffs first contend that they are entitled to summary judgment against defendant Yolanda Silvera based upon collateral estoppel because Silvera's “plea allocution and Certificate of Disposition make it perfectly clear that she recklessly operated the subject vehicle and, that in doing so, she caused serious physical injury to Plaintiffs.” In support, Plaintiffs proffer, among other things, a Certificate of Disposition Indictment from Supreme Court, Queens County, indicating that defendant Yolanda Silvera pled guilty to Penal Law § 120.10 and was sentenced on March 11, 2011 to 9 years imprisonment. Plaintiffs submit a copy of the transcript of Yolana Silvera's plea allocution, in which she admits that by pleading guilty, she is admitting “that on August 13 of 2009 at 150th Road and Rockaway Boulevard in Queens, that [she was] driving a vehicle that [she] had smoked crack before that and that because of this reckless operation of the vehicle that [she] ended up causing a serious physical injury to somebody at that location”. As a result, Plaintiffs sufficiently demonstrate prima facie entitlement

[961 N.Y.S.2d 881]

to partial summary judgment on the issue of liability as against defendant Yolanda Silvera. ( See Blaich v. Van Herwynen, 37 A.D.3d 387, 829 N.Y.S.2d 639 [2d Dept. 2007];Wagman v. Kandekore, 243 A.D.2d 628, 663 N.Y.S.2d 227 [2d Dept. 1997].)

In opposition, defendant Silvera does not point to any evidence demonstrating an issue of fact as to her liability. Accordingly, the branch of Plaintiffs' motion for an order granting them partial summary judgment on the issue of liability as against defendant Yolanda Silvera is GRANTED.

Plaintiffs also contend that they are entitled to partial summary judgment on the issue of liability as against defendant Douglas Kruger, the owner of the vehicle, based upon Vehicle and Traffic Law § 388. In support, Plaintiffs proffer a copy of Douglas Kruger and Yolanda Silvera's Answer to Verified Complaint and Cross–Claim, which does not address Plaintiffs' allegation in their Verified Complaint that the vehicle was operated by defendant Silvera with Douglas Kruger's permission. As such, the allegation is deemed admitted. ( SeeCPLR 3018[a]; Miller v. Bah, 74 A.D.3d 761, 762, 902 N.Y.S.2d 174 [2d Dept. 2010].) As a result, Plaintiffs demonstrate prima facie entitlement to summary judgment pursuant to Vehicle and Traffic Law § 388, which imposes liability upon the owner of the vehicle based upon the negligence of the driver. Vehicle and Traffic Law § 388, which is intended to have a “financially responsible defendant where a vehicle, being operated with the owner's permission and consent, causes injury or death”, applies where, as here, allegations include claims of gross negligence or recklessness. ( See Lynch–Fina v. Paredes, 164 Misc.2d 963, 964, 627 N.Y.S.2d 255 [Sup. Ct., Queens County 1995].)

Accordingly, the branch of Plaintiffs' motion for an order, pursuant to CPLR 3212, granting them partial summary judgment on the issue of liability as against defendant Douglas Kruger is GRANTED.

Sole Proximate/Superseding Intervening Cause

In their respective motions, defendants Tully and Lockwood contend that, regardless of any negligence on their part, they are entitled to summary dismissal of Plaintiffs' Verified Complaint as against them on the ground that Silvera's negligent or reckless operation of the Kruger vehicle was the sole proximate and superseding cause of the impact between the Kruger vehicle and Plaintiffs.

“A party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, producing sufficient evidence to demonstrate the absence of any material issue of fact. Once this showing has been made, the burden shifts to the nonmoving party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact that require a trial for resolution.” ( Giuffrida v. Citibank Corp., 100 N.Y.2d 72, 81, 760 N.Y.S.2d 397, 790 N.E.2d 772 [2003];see alsoCPLR 3212; Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986].) “In determining a motion for summary judgment, the court must view the evidence in the light most favorable to the nonmoving party.” ( Stukas v. Streiter, 83 A.D.3d 18, 22, 918 N.Y.S.2d 176 [2d Dept. 2011];Pearson v. Dix McBride, LLC, 63 A.D.3d 895, 883 N.Y.S.2d 53 [2d Dept. 2009].) “The function of the court on a motion for summary judgment is not to resolve issues of fact or determine matters of credibility, but merely to determine whether such issues exist.”

[961 N.Y.S.2d 882]

( Stukas v. Streiter, 83 A.D.3d at 22, 918 N.Y.S.2d 176 [quoting Kolivas v. Kirchoff, 14 A.D.3d 493, 493, 787 N.Y.S.2d 392 (2d Dept. 2005) ].)

In support of their motion, Tully and Lockwood proffer the deposition testimony of nonparty David Kruger that he and defendant Silvera had smoked crack prior to the accident; that at some time prior to the accident, he was operating the vehicle (“the Kruger vehicle”), which was owned by his father defendant Douglas Kruger, and got lost; that because he was lost, he allowed defendant Silvera to drive the vehicle; that Silvera drove the vehicle erratically by stopping “twenty, thirty feet behind” stop signs, and then “gunned” it through the stop signs; that he was screaming and arguing with her to stop the vehicle and pull over; that when they “got towards the construction site there were just a few stopped cars at the red light”; that there were two lanes of traffic; that they were in the left lane; that “at the last second”, Silvera swerved the vehicle to the right “and there was a barrel, barrel, gentleman and we stopped abruptly”; that just prior to veering to the right, traffic was stopped at a light ahead.

Tully and Lockwood submit a copy of the deposition testimony of Yolanda Silvera, to the effect that at the time of the accident, she was high on crack cocaine and was not aware of the manner in which she operated the vehicle, and that she was not aware that she had even entered a construction zone.

Tully and Lockwood submit an affidavit of nonparty Henry Henry, who avers that, at the time of the accident, he was operating a company van in the course of his employment, and that he witnessed the accident. He avers that, as he approached Rockaway Boulevard, he observed the Kruger vehicle approaching the same intersection at a high rate of speed and did not appear as though it would stop for the red traffic light for traffic on Rockaway Boulevard; that after the Kruger vehicle passed through the intersection, he proceeded ahead and drove behind the Kruger vehicle; that he noticed that the Kruger vehicle's brake lights were on while it was accelerating; that the construction zone was clearly visible with road signs, traffic barrels, and good illumination; that Rockaway Boulevard was comprised of three lanes of traffic through the construction zone, that the middle and right lanes were closed, and that all traffic was using the left lane; that as the Kruger vehicle approached the construction zone, it was initially in the middle lane, and it “swerved” into the left lane and then “suddenly swerved” sharply to the right and struck the construction workers; that he only observed one construction worker get struck; that the Kruger vehicle proceeded ahead until it crashed into a large water tank located in the right-most lane; that the Kruger vehicle ran over “approximately three traffic barrels before crashing to a stop.”

Tully and Lockwood also proffer the affidavit of nonparty Noah Reiss, who avers that at the time of the accident, he was driving on Rockaway Boulevard near JFK and witnessed the accident. He...