Magee v. Zeman

• Decision Date: 28 August 2019
• Docket Number: Index 625549/2018E
• Parties: Dennis Magee, Plaintiff, v. Joanne Zeman, Defendant.
• Court: New York Supreme Court

2019 NY Slip Op 34369(U)

Dennis Magee, Plaintiff,
v.
Joanne Zeman, Defendant.

Index No. 625549/2018E

Supreme Court, Suffolk County

August 28, 2019

Unpublished Opinion

Attorney for Plaintiff: Rosenberg & Gluck, LLP

Attorney for Defendant: Russo & Tambasco

HON. WILLIAM B. REBOLINI, J.S.C.

Upon the E-file document list numbered 8 to 17 read on plaintiffs motion for an order pursuant to CPLR 3212 granting summary judgment against defendant on the issue of liability and striking defendant's affirmative defense of comparative negligence; it is

ORDERED that plaintiff s motion for summary judgment on the issue of liability is granted and defendant's affirmative defense of comparative negligence is stricken.

Plaintiff Dennis Magee commenced this action by the filing of summons and complaint on December 31, 2018 to recover damages for personal injuries he allegedly sustained in a motor vehicle accident that occurred on May 24, 2017 at approximately 5:15 p.m., near the intersection of College Road and Palm Street in Suffolk County, New York. Issue was joined on January 17, 2019. Plaintiff now moves for summary judgment on the issue of liability and to strike defendant's affirmative defense of comparative negligence. In support of his motion, plaintiff submits an attorney

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affirmation, a sworn affidavit, a copy of the pleadings, and the certified police accident report By way of his sworn affidavit, plaintiff alleges that while he was traveling southbound on College Road within the posted speed limit, and after he entered the intersection with Palm Street, defendant Joanne Zeman, who was traveling northbound on College Road, suddenly and without warning crossed over both double yellow lines prior to reaching the intersection and traveled directly into the path of plaintiff s vehicle, striking it head-on. Plaintiff further alleges that he attempted to avoid the collision by applying his brakes, however, he only had a moment to react and was unable to avoid the accident. According to the certified police report, defendant advised that she was "going to make a left turn and started making the turn too soon, crossing into oncoming traffic." Plaintiff argues that defendant violated sections 1141, 1163, and 1120 of the Vehicle and Traffic Law and that these violations and her failure to keep a proper lookout and observe what she should have seen with proper use of her senses were the proximate cause of the collision. Defendant opposes the motion claiming summary judgment is premature as there has been no discovery, that the police report is inadmissible hearsay, and that plaintiff has failed to show that he acted reasonably under the circumstances. Plaintiff replies.

Summary judgment is a drastic remedy and should only be granted in the absence of any triable issues of fact (see Rotuba Extruders, Inc. v. Ceppos, 46 N.Y.2d 223, 413 N.Y.S.2d 141 [1978]; Andre v Pomeroy, 35 N.Y.2d 361, 362 N.Y.S.2d 131 (1974]). The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issue of fact (see Alvarez v Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923 [1986]; Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 487 N.Y.S.2d 316 [1985]). The burden then shifts to the party opposing the motion who must produce evidentiary proof in admissible form sufficient to require a trial of the material issues of fact (Roth v. Barreto, 289 A.D.2d 557, 735 N.Y.S.2d 197 [2d Dept 2001]; Rebecchi v. Whitmore, 172 A.D.2d 600, 568 N.Y.S.2d 423 [2d Dept 1991]; O'Neill v. Town of Fishkill, 134 A.D.2d 487, 521 N.Y.S.2d 272 [2d Dept 1987]). To defeat a motion for summary judgment, a party opposing such motion must lay bare his proof in evidentiary form; conclusory allegations are insufficient to raise a triable issue of fact (see Friends of Animals, Inc. v. Associated Fur Mfrs., 46 N.Y.2d 1065, 416 N.Y.S.2d 790; Burns v. City of Poughkeepsie, 293 A.D.2d 435, 739 N.Y.S.2d 458 (2d Dept 2002]). It is well settled that an affirmation of an attorney who lacks personal knowledge of the facts has no probative value (see Cullin v. Spiess, 122 A.D.3d 792, 997 N.Y.S.2d 460 [2d Dept 2014]) and all competent evidence must be viewed in a light most favorable to the party opposing summary judgment (Benincasa v Garrubbo, 141 A.D.2d 636, 637, 529 N.Y.S.2d 797, 799 (2d Dept 1988]). A motion for summary judgment should be denied where the facts are in dispute, where conflicting inferences may be drawn from the evidence, or where there are issues of credibility (see Chimbo v. Bolivar, supra; Benetatos v. Cometford, 78 A.D.3d 730, 911 N.Y.S.2d 155 [2d Dept. 2010]).

Vehicle and Traffic Law § 1141 requires that "[t]he driver of a vehicle intending to turn to the left within an intersection or into an alley, private road, or driveway shall yield the right of way to any vehicle approaching from the opposite direction which is within the intersection or so close as to constitute an immediate hazard." A driver with the right of way is entitled to anticipate that other motorists will obey traffic laws that require them to yield the right of way (see Lebron v

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Mensah, 161 A.D.3d 972, 76 N.Y.S.3d 219 [2d Dept. 2018]; Bullock v. Calabretta, 119 A.D.3d 884 [2d Dept 2014]; Kucar v. Town of Huntington, 81 A.D.3d 784, 917 N.Y.S.2d 646 [2d Dept 2011]; Todd v Godek, 71 A.D.3d 872 [2d Dept 2010] Kann v. Maggies Paratransit Corp., 63 A.D.3d 792, 882 N.Y.S.2d 129 [2d Dept 2009]; Berner v. Koegel, 31 A.D.3d 591, 819 N.Y.S.2d 89 [2d Dept 2006]; Gabler v. Marly Bldg. Supply Corp., 27 A.D.3d 519, 813 N.Y.S.2d 120 [2d Dept 2006]). A driver is not required to anticipate that an automobile going in the opposite direction will cross over [ a double yellow line] into oncoming traffic" (Barbaruolo v. Difede, 73 A.D.3d 957, 900 N.Y.S.2d 671 [2d Dept. 2010]). Vehicle and Traffic Law §1163 provides, in pertinent part, that "no person shall turn a vehicle at an intersection unless the vehicle is in proper position ... or tum a vehicle from a direct course or move right of left upon a roadway unless and until such movement can be made with reasonable safety." Further, the general rule under Vehicle and Traffic Law§ 1120 is that a "vehicle shall be driven upon the right half of the roadway," with limited exceptions not applicable herein. A violation of a standard of care imposed by the Vehicle and Traffic Law constitutes negligence per se (Lebron v. Mensah, 161 A.D.3d 972; 76 N.Y.S.3d 219 [2d Dept. 2018]; Barbaruolo v. Difede, 73 A.D.3d 957, 900 N.Y.S.2d 671 [2d Dept. 2010]; Ciatto v. Lieberman, 266 A.D.2d 494, 698 N.Y.S.2d 54 [2d Dept. 1999]; see also Barbieri v. Vokoun, 72 A.D.3d 853, 856, 900 N.Y.S.2d 315 [2d Dept. 2010]; Smith v. State of New York, 121 A.D.3d 1358, 1358-59, 955 N.Y.S.2d 329 [3d Dept. 2014]. Further, a driver is negligent when an accident occurs because the driver failed to see that which through proper use of the driver's senses he or she should have seen (see Laino v Lucchese, 35 A.D.3d 672, 827 N.Y.S.2D 249 [2d Dept 2006]; Berner v....