Rozowski v. Pride Floor Covering, Inc.

• Decision Date: 06 May 2019
• Docket Number: EF007032-2016
• Citation: 2019 NY Slip Op 34741 (U)
• Parties: MEGHAN ROZOWSKI, Plaintiff, v. PRIDE FLOOR COVERING, INC. and ERIC BORSCHEL, Defendants.
• Court: New York Supreme Court

2019 NY Slip Op 34741(U)

MEGHAN ROZOWSKI, Plaintiff,
v.
PRIDE FLOOR COVERING, INC. and ERIC BORSCHEL, Defendants.

No. EF007032-2016

Supreme Court, Orange County

May 6, 2019

Unpublished Opinion

DECISION AND ORDER

HON. CATHERINE M. BARTLETT, A.J.S.C.

To commence the statutory time period for appeals as of right (CPLR 5513 [a]), you are advised to serve a copy of this order, with notice of entry, upon all parties.

The following papers numbered 1 to 4 were read on Plaintiffs motion in limine to preclude Defendants from adducing evidence at trial that the responding police officer did not issue a traffic ticket to defendant Eric Borschel:

Notice of Motion in Limine - Affirmation / Exhibits ................................	1-2
Affirmation in Opposition......................................................	3
Reply Affirmation.............................................................	4

Upon the foregoing papers, it is ORDERED that the motion is disposed of as follows:

This is an action for personal injury arising out of a motor vehicle accident that occurred on October 16,2015 in New Windsor, New York. Plaintiffs vehicle was traveling northbound, and Defendants' vehicle southbound, on Quassaick Avenue. The police report, authored by Officer John Martin, states in pertinent part: "Vehicle #1 and Vehicle #2 sideswiped causing

1

damage to both vehicles. The driver of Vehicle #1 [i.e., defendant Eric Borschel] stated that an uninvolved vehicle pulled out in front of him which caused him to move over into the northbound lane and he could not get back into the southbound lane prior to striking Vehicle #2." The police report contains no "accident diagram."

Plaintiff contends that defendant Borschel was negligent inter alia in failing to keep right and crossing over the center line in violation of Vehicle and Traffic Law ("VTL") §1126(a), which provides:

When official markings are in place indicating those portions of any highway where overtaking and passing or driving to the left of such markings would be especially hazardous, no driver of a vehicle proceeding along such highway shall at any time drive on the left side of such markings

An unexcused violation of the statute constitutes negligence. See, Aranzullo v. Seidell 96 A.D.2d 1048,1049 (2d Dept. 1983) (citing Martin v. Herzog, 228 NY 164 [1920]); Petosa v. City of New York, 52 A.D.2d 919,921 (2d Dept 1976). A violation of VTL §1126(a) may be excused if the driver exercised reasonable care in an effort to comply. See, Brown v. State of New York, 31 N.Y.3d 514 (2018); Arricale v. Leo, 295 A.D.2d 920,921 (4^th Dept. 2002); Aranzullo v. Seidell, supra. Noncompliance may be justified by emergency or other unusual circumstances. See, Arricale v. Leo, supra; Petosa v. City of New York, supra. See generally, 1A NY PJI3d 2:26A at 320-321 (2019); 1A NY PJI3d 2:27 at 322-323.

Defendants contend:

As a result of the actions of an unidentified motorist, who abruptly and unexpectedly came out into the roadway on [Borschel's] right-hand side while he was operating his vehicle within the speed limit and fully within his lane of travel, [Borschel] attempted

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