Rosado v. Bagnall, 2008 NY Slip Op 31971(U) (N.Y. Sup. Ct. 7/3/2008), 0005571/2006.

CourtUnited States State Supreme Court (New York)
Writing for the CourtPatricia P. Satterfield
Citation2008 NY Slip Op 31971
Decision Date03 July 2008
Docket NumberMotion Cal. No. 27.,Motion Seq. No. 1.,0005571/2006.

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2008 NY Slip Op 31971(U)
Motion Cal. No. 27.
Motion Seq. No. 1.
Supreme Court of the State of New York, Queens County.
July 3, 2008
April 30, 2008.


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This is an action for personal injury in which plaintiffs Edward Rosado ("Rosado") and Ibelisse Bonilla ("Bonilla") allege that each of them sustained serious injuries on March 14, 2003, as a result of a motor vehicle accident that occurred at or near the intersection of The Queensboro Bridge, Review Avenue, Van Dam Street and Greenpoint Avenue, Queens, New York, between the vehicle operated by plaintiff Rosado and the vehicle owned by defendant Gerald Bagnall and operated by defendant Christina Bagnall ("defendants"). The accident allegedly occurred as plaintiff Rosado was attempting to make a left turn in front of the Bagnall vehicle. Defendants move for summary judgment dismissing the complaint on the grounds that defendants did not breach any duty owed to plaintiffs, and plaintiffs have not sustained a "serious injury" as defined by the New York State Insurance Law §5102(d).

It is well established that summary judgment should be granted when there is no doubt as to the absence of triable issues. See, Zuckerman v. City of New York, 49 N.Y.2d 557, 562 (1980);

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Rotuba Extruders, Inc. v. Ceppos, 46 N.Y.2d 223, 231(1978); Andre v. Pomeroy, 35 N.Y.2d 361, 364 (1974); Taft v. New York City Tr. Auth., 193 A.D.2d 503, 505 (1993). As such, the function of the court on the instant motion is issue finding and not issue determination. See D.B.D. Nominee, Inc., v. 814 10th Ave. Corp., 109 A.D.2d 668, 669 (1985). The proponent of a motion for summary judgment "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact. Failure to make such prima facie showing requires a denial of the motion, regardless of the sufficiency of the opposing papers' (Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986] [citations omitted]." JMD Holding Corp. v. Congress Financial Corp., 4 N.Y.3d 373 (2005). If the proponent succeeds, the burden shifts to the party opposing the motion, who then must show the existence of material issues of fact by producing evidentiary proof in admissible form, in support of his position. See Zuckerman v. City of New York, supra.

A. Summary judgment on issue of liability

Section 1141 of the Vehicle and Traffic Law provides that "[t]he driver of a vehicle intending to turn to the left within an intersection . . . 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." Failure to yield the right of way constitutes negligence as a matter of law. See, McNamara v. Fishkowitz, 18 A.D.3d 721 (2d Dept. 2005); Ishak v. Guzman, 12 A.D.3d 409 (2d Dept. 2004); Rossani v. Rana, 8 A.D.3d 548 (2d Dept. 2004); Spatola v. Gelco Corp., 5 A.D.3d 469 (2d Dept. 2004). A driver thus is required to bring his or her vehicle to a stop and remain stationary until it is clear to proceed across an intersection [(see Breslin v. Rudden, 291 A.D.2d 471 (2d Dept. 2002); Bolta v. Lohan, 242 A.D.2d 356 (2d Dept. 1997)], and is obligated to see oncoming traffic through the proper use of her senses [(see, Bongiovi v. Hoffman, 18 A.D.3d 686 (2d Dept. 2005)]. As a corollary to these principles of law, a driver with the right of way is entitled to anticipate that an opposing driver controlled by a stop sign will obey the traffic laws requiring her to yield. Id., Gabler v. Marly Building Supply Corp., 27 A.D.3d 519 (2006).

Defendants, who, inter alia, submitted on this motion their deposition testimony and that of plaintiffs, demonstrated their prima facie entitlement to judgment as a matter of law by establishing with that evidence that plaintiff Rosado violated "Vehicle and Traffic Law § 1141 when he made a left turn directly into the path of defendants' vehicle as it legally proceeded with the right of way [(see, Moreback v. Mesquita, 17 A.D.3d 420, 793 N.Y.S.2d 148 (2d Dept. 2005); Torro v. Schiller, 8 A.D.3d 364, 777 N.Y.S.2d 915 (2d Dept. 2004); Casaregola v. Farkouh, 1 A.D.3d 306, 767 N.Y.S.2d 57; Rieman v. Smith, 302 A.D.2d 510, 755 N.Y.S.2d 256; Russo v. Scibetti, 298 A.D.2d 514, 748 N.Y.S.2d 871 (2d Dept. 2003); Agin v. Rehfeldt, 284 A.D.2d 352, 726 N.Y.S.2d 131 (2d Dept 2001); Stiles v. County of Dutchess, 278 A.D.2d 304, 717 N.Y.S.2d 325 (2d Dept.2000)]." Gabler v. Marly Bldg. Supply Corp., supra. See, also, Berner v. Koegel, 31 A.D.3d 591 (2d Dept.2006)["The plaintiff demonstrated her prima facie entitlement to judgment as a matter of law by establishing that the defendant violated Vehicle and Traffic Law § 1141 when she made a left turn directly into the path of the plaintiffs vehicle as the plaintiffs vehicle was legally proceeding into the intersection with the right-of-way."] Moreover, defendant Christina Bagnall ("Bagnall") had

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the right to anticipate that defendant Rosado would obey the traffic laws which required him to yield to defendants' vehicle. Bongiovi v. Hoffman, supra.

The burden then shifted to plaintiffs to produce evidentiary proof in admissible form sufficient to raise a triable issue of fact. See Zuckerman v City of New York, supra. In opposition, plaintiffs set forth that plaintiff Rosado, in his deposition testimony, testified that at the time he attempted to make the left turn, the light for oncoming traffic had turned to red, which raises the issues of whether or not defendant Bagnall failed to yield and if defendant Bagnall went through a red light. Plaintiffs further point to defendant Bagnall's deposition testimony in which she testified that she first saw the Rosado vehicle in the middle of the intersection when she was on the Greenpoint Bridge and traveling at the speed of 25 miles per hour, and kept the vehicle in her constant vision the entire time. They conclude that if she was traveling at the stated speed, then she should have been able to bring her vehicle to a complete stop to avoid the collision, or take other steps to avoid the happening of the accident. Plaintiffs thus contend that there are questions of fact as to whether the moving defendants also are at fault for this motor vehicle accident. This Court agrees.

Plaintiff Rosado may have been negligent in failing to see that which, under the circumstances, should have been seen, and in making a left turn that crossed in front of defendant Bagnall's vehicle when it was apparently hazardous to do so. See, Sirico v. Beukelaer, 14 A.D.3d 549 (2005); Pryor v. Reichert, 265 A.D.2d 470 (2d Dept.1999); Canceleno v. Johnston, 264 A.D.2d 405 (1999). Notwithstanding, that defendant Bagnall, as the operator of the vehicle who had the right-of-way, was entitled to anticipate that plaintiff Rosado would obey the traffic laws which required him to yield [(see, Cenov ski v. Lee, 266 A.D.2d 424 (2d Dept. 1999); Namisnak v. Martin, 244 A.D.2d 258 (2d Dept. 1997)], she nonetheless was required to exercise care in her...

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