Rivera v. Town of Wappinger

• Decision Date: 29 August 2018
• Docket Number: Index No. 5665/13,2016–02704
• Citation: 83 N.Y.S.3d 178,164 A.D.3d 932
• Parties: Jessica RIVERA, appellant, v. TOWN OF WAPPINGER, et al., respondents, et al., defendants.
• Court: New York Supreme Court — Appellate Division

164 A.D.3d 932

83 N.Y.S.3d 178

Jessica RIVERA, appellant,

v.TOWN OF WAPPINGER, et al., respondents, et al., defendants.

2016–02704

Index No. 5665/13

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

Argued—April 17, 2018

August 29, 2018

Ronemus & Vilensky LLP (Lisa M. Comeau, Garden City, NY, of counsel), for appellant.

Catania, Mahon, Milligram & Rider, PLLC, Newburgh, N.Y. (Lia Elizabeth Fierro and Jeffrey S. Sculley of counsel), for respondent Town of Wappinger.

Burke, Conway, Loccisano & Dillon, White Plains, N.Y. (Michelle J. Piantadosi of counsel), for respondents Healey Brothers, Inc., and Michael C. Ayers.

CHERYL E. CHAMBERS, J.P., SANDRA L. SGROI, JOSEPH J. MALTESE, FRANCESCA E. CONNOLLY, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Dutchess County (Maria G. Rosa, J.), dated January 20, 2016. The order, insofar as appealed from, granted the separate motions of the defendants Healey Brothers, Inc., and Michael C. Ayers and the defendant Town of Wappinger for summary judgment dismissing the complaint insofar as asserted against each of them.

ORDERED that the order is reversed insofar as appealed from, on the law, with one bill of costs payable by the respondents appearing separately and filing separate briefs, and the separate motions of the defendants Healey Brothers, Inc., and Michael C. Ayers and the defendant Town of Wappinger for summary judgment dismissing the complaint insofar as asserted against each of them are denied.

The plaintiff allegedly was injured when, at the intersection of Meadowood Lane and Old Hopewell Road in the Town of Wappinger, a vehicle she was operating collided with a vehicle owned by the defendant Healey Brothers, Inc., and operated by the defendant Michael C. Ayers (hereinafter together the driver defendants). At the time of the collision, the plaintiff was turning right from Meadowood Lane onto Old Hopewell Road, and Ayers was traveling straight on Old Hopewell Road. Meadowood Lane was controlled by a stop sign, while Old Hopewell Road had no traffic control device at that intersection. Although the plaintiff remembered very little about the accident, according to Ayers, the plaintiff did not stop at the stop sign.

The plaintiff subsequently commenced this action to recover damages for personal injuries against, among others, the driver defendants and the Town. The plaintiff alleged that the Town failed to properly maintain foliage on the corner of Meadowood Lane so as to prevent it from obscuring the stop sign on that road. The driver defendants moved, and the Town separately moved, for summary judgment dismissing the complaint insofar as asserted against each of them. The Supreme Court granted the motions, and the plaintiff appeals.

To demonstrate their entitlement to judgment as a matter of law, the driver defendants had the burden of establishing, prima facie, that Ayers was not at fault in the happening of the subject accident (see Gezelter v. Pecora, 129 A.D.3d 1021, 1023, 13 N.Y.S.3d 141 ; Boulos v. Lerner–Harrington, 124 A.D.3d 709, 2 N.Y.S.3d 526 ). Although the operator of a motor vehicle traveling with the right-of-way is entitled to anticipate that other drivers will obey the traffic laws requiring them to yield, the operator with the right-of-way also has an obligation to use reasonable care to avoid an accident (see Gezelter v. Pecora, 129 A.D.3d at 1023, 13 N.Y.S.3d 141 ; see also Mark v. New York City Tr. Auth., 150 A.D.3d 980, 981–982, 55 N.Y.S.3d 128 ; Blair v. Coleman, 146 A.D.3d 743, 744, 44 N.Y.S.3d 538 ).

The driver defendants failed to eliminate triable issues of fact as to whether Ayers contributed to the happening of the accident. In particular, Ayers testified at his deposition that he was traveling 40 miles per hour as he approached the intersection, and that although nothing obstructed his view of the intersection, he did not see the plaintiff's vehicle until he was one car length from the intersection. Further, Ayers could not say whether he took any evasive action to avoid the collision. Under the circumstances, it cannot be said as a matter of law that Ayers used reasonable care to avoid the accident (see Inesta v. Florio, 159 A.D.3d 682, 71 N.Y.S.3d 161 ; Blair v. Coleman, 146 A.D.3d at 744, 44 N.Y.S.3d 538 ; Gezelter v. Pecora, 129 A.D.3d at 1023, 13 N.Y.S.3d 141 ). Since the driver defendants failed to establish their prima facie entitlement to judgment as a matter of law, their motion should have been denied regardless of the sufficiency of the plaintiff's opposition papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 ).

"A municipality has a duty to maintain its roads in a reasonably safe condition, and that duty includes the trimming of trees in highway rights-of-way to assure the visibility of stop signs" ( Nichols–Sisson v. Windstar Airport Serv., Inc., 99 A.D.3d 770, 773, 952 N.Y.S.2d 223 ; see D'Onofrio–Ruden v. Town of Hempstead, 29 A.D.3d 512, 513, 815 N.Y.S.2d 141 ; Finn v. Town of Southampton, 289 A.D.2d 285, 286, 734 N.Y.S.2d 215 ). No liability will attach for the breach of that duty, however, unless the municipality's failure to...