Rost v. Stolzman

• Decision Date: 18 February 2011
• Parties: Judith A. ROST, Plaintiff-Respondent, v. Michael A. STOLZMAN, Michael Oliver, Susan Oliver, Defendants-Respondents, Jennifer D. Martino and Gina L. Avino, Defendants-Appellants.
• Court: New York Supreme Court — Appellate Division

917 N.Y.S.2d 470

81 A.D.3d 1401

Judith A. ROST, Plaintiff-Respondent,

v.Michael A. STOLZMAN, Michael Oliver, Susan Oliver, Defendants-Respondents,Jennifer D. Martino and Gina L. Avino, Defendants-Appellants.

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

Feb. 18, 2011.

Barth Sullivan Behr, Buffalo (Sarah P. Rera of Counsel), for Defendants-Appellants.

Lipsitz Green Scime Cambria LLP, Buffalo (John A. Collins of Counsel), for Plaintiff-Respondent.

Kenney Shelton Liptak Nowak LLP, Buffalo (Amanda L. Machacek of Counsel), for Defendant-Respondent Michael A. Stolzman.

Hagelin Kent LLC, Buffalo (Victor M. Wright of Counsel), for Defendants-Respondents Michael Oliver and Susan Oliver.

PRESENT: SMITH, J.P., FAHEY, CARNI, SCONIERS, AND MARTOCHE, JJ.

MEMORANDUM:

Plaintiff commenced this action seeking damages for injuries she sustained in an automobile accident. Defendant Michael A. Stolzman backed his automobile, in which plaintiff was a passenger, out of the driveway of the home of defendants Michael Oliver and Susan Oliver and into the path of an oncoming automobile operated by defendant Jennifer D. Martino. Martino was operating the automobile with the permission of the owner, defendant Gina L. Avino. In a prior appeal, we concluded that Supreme Court properly denied, inter alia, that part of the Olivers' motion seeking to dismiss the negligence cause of action against them inasmuch as there was a triable issue of fact whether the Olivers were negligent with respect to that accident ( Martino v. Stolzman, 74 A.D.3d 1764, 1766-1767, 902 N.Y.S.2d 731, appeal dismissed 15 N.Y.3d 890, 912 N.Y.S.2d 566, 938 N.E.2d 1000, lv. granted 79 A.D.3d 1832, 2010 WL 5420152). We conclude on this appeal that Supreme Court properly denied the motion of Martino and Avino for summary judgment dismissing the amended complaint against them inasmuch as there is a triable issue of fact whether Martino was negligent in the operation of the automobile owned by Avino.

Defendants contend that the court erred in denying their motionbecause there is no admissible evidence indicating that Martino was negligent. We reject that contention. " '[A]n operator [of an automobile] who has the right[-]of[-]way is entitled to anticipate that other [automobiles] will obey the traffic laws that require them to yield' " ( Barile v. Carroll, 280 A.D.2d 988, 988, 720 N.Y.S.2d 674; see Hillman v. Eick, 8 A.D.3d 989, 991, 779 N.Y.S.2d 794). Consequently, although " ' [n]egligence cases ... do not usually lend themselves to summary judgment' " ( Hyatt v. Messana, 67 A.D.3d 1400, 1401, 889 N.Y.S.2d 329, quoting Ugarriza v. Schmieder, 46 N.Y.2d 471, 474, 414 N.Y.S.2d 304, 386 N.E.2d 1324), an operator of an automobile involved in an accident similar to that at issue may establishentitlement to summary judgment, i.e., that he or she was free from negligence, by demonstrating that the other automobile " suddenly entered the lane where [that driver] was operating [his or her automobile] in a lawful and prudent manner and that there was nothing [that driver] could have done to avoid the collision" ( Bulls v. Massara, 71 A.D.3d 1408, 1409, 897 N.Y.S.2d 817 [internal quotation marks omitted]; see Fratangelo v. Benson, 294 A.D.2d 880, 741 N.Y.S.2d 798). Here, defendants met their initial burden on the motion by demonstrating that the accident occurred after the automobile operated by Stolzman entered the path of the oncoming automobile operated by Martino ( see e.g. DeLuca v. Cerda, 60 A.D.3d 721, 875 N.Y.S.2d 520; Yasinosky v. Lenio, 28 A.D.3d 652, 812 N.Y.S.2d 367).

We further conclude, however, that plaintiff and the remaining defendants raised a triable issue of fact in opposition to the motion ( see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718). All drivers have a general " 'duty to see that which through the proper use of [their] senses [they] should have seen' " ( Huff v. Rodriguez, 45 A.D.3d 1430, 1431, 846 N.Y.S.2d 841; see Hyatt, 67 A.D.3d at 1402, 889 N.Y.S.2d 329). Here, the papers submitted in opposition to the motion included evidence that Martino could not remember whether she was using her windshield wipers on the rainy night of the accident, that Martino had four or five drinks on that night and that Martino was prescribed the medications Zoloft and Xanax at the time of the accident. Further, although Martino testified at her deposition that she did not feel impaired by alcohol at the time of the accident, she told police at the accident scene that she had not consumed alcohol on the night of the accident and, according to Avino, Martino tried to switch seats with Avino after the impact. Moreover, Martino could not recall where she was looking prior to the accident and did not attempt to avoid colliding with the automobile operated by Stolzman. That evidence, when viewed in its entirety, raises a triable issue of fact sufficient to defeat the motion ( see Harris v. Jackson, 30 A.D.3d 1027, 1028, 816 N.Y.S.2d 791; see generally Zuckerman, 49 N.Y.2d at 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).

We note that, in reaching our determination, we have disregarded the affidavit of the accident reconstruction expert submitted in support of the motion inasmuch as the conclusions asserted therein "are speculative or unsupported by any evidentiary foundation" ( Diaz v. New York Downtown Hosp., 99 N.Y.2d 542, 544, 754 N.Y.S.2d 195, 784 N.E.2d 68; see Ciccarelli v. Cotira,...