Sapienza v. Harrison

• Decision Date: 24 February 2021
• Docket Number: Index No. 522405/17,2019–02223
• Citation: 142 N.Y.S.3d 584,191 A.D.3d 1028
• Parties: Joann SAPIENZA, appellant, v. Rebecca HARRISON, respondent.
• Court: New York Supreme Court — Appellate Division

191 A.D.3d 1028

142 N.Y.S.3d 584

Joann SAPIENZA, appellant,

v.Rebecca HARRISON, respondent.

2019–02223

Index No. 522405/17

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

Argued—December 15, 2020

February 24, 2021

Aron S. Wolf (Ephrem J. Wertenteil, New York, NY, of counsel), for appellant.

James G. Bilello (Gentile & Tambasco, Melville, N.Y. [Susan J. Mitola], of counsel), for respondent.

LEONARD B. AUSTIN, J.P., BETSY BARROS, FRANCESCA E. CONNOLLY, ANGELA G. IANNACCI, JJ.

DECISION & ORDER

In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Kings County (Loren Baily–Schiffman, J.), entered December 14, 2018. The order denied, as premature, the plaintiff's motion for summary judgment on the issue of liability and dismissing the defendant's affirmative defenses alleging comparative negligence and liability on the part of the plaintiff.

ORDERED that the order is reversed, on the law, with costs, and the plaintiff's motion for summary judgment on the issue of liability and dismissing the defendant's affirmative defenses alleging comparative negligence and liability on the part of the plaintiff is granted.

The plaintiff allegedly sustained personal injuries when a vehicle she was driving was struck by a vehicle owned and operated by the defendant. The collision took place at the intersection of Avenue U and Mill Avenue in Brooklyn. The plaintiff commenced this action against the defendant to recover damages for personal injuries. Before depositions were held, the plaintiff moved for summary judgment on the issue of liability and dismissing the defendant's affirmative defenses alleging comparative negligence and liability on the part of the plaintiff, contending that the defendant's alleged violation of, among other things, Vehicle and Traffic Law § 1141 was the sole proximate cause of the accident. In support of the plaintiff's motion, she submitted her own affidavit averring that, prior to the accident, as she was traveling west on Avenue U, she entered the intersection with Mill Avenue, with the traffic light in her favor, when the defendant's vehicle, which had been traveling east on Avenue U, suddenly, without warning, made a left-hand turn in front of her vehicle. The Supreme Court denied the motion as premature. The plaintiff appeals.

"A plaintiff in a negligence action moving for summary judgment on the issue of liability must establish, prima facie, that the defendant breached a duty owed to the plaintiff and that the defendant's negligence was a proximate cause of the alleged injuries" ( Tsyganash v. Auto Mall Fleet Mgt., Inc., 163 A.D.3d 1033, 1033–1034, 83 N.Y.S.3d 74 ; see Rodriguez v. City of New York, 31 N.Y.3d 312, 76 N.Y.S.3d 898, 101 N.E.3d 366 ). "To be entitled to partial summary judgment a plaintiff does not bear the ... burden of establishing ... the absence of his or her own comparative fault" ( Rodriguez v. City of New York, 31 N.Y.3d at 324–325, 76 N.Y.S.3d 898, 101 N.E.3d 366 ). Even though a plaintiff is not required to establish his or her freedom from comparative negligence to be entitled to summary judgment on the issue of liability, the issue of a plaintiff's comparative negligence may be decided in the context of a summary judgment motion where the plaintiff moves for summary judgment dismissing a defendant's affirmative defense alleging comparative negligence and culpable conduct on the part of the plaintiff (see Higashi v. M & R Scarsdale Rest., LLC, 176 A.D.3d 788, 789, 111 N.Y.S.3d 92 ; Wray v. Galella, 172 A.D.3d 1446, 1447, 101 N.Y.S.3d 401 ).

Pursuant to Vehicle and Traffic Law § 1141, "[t]he operator of a vehicle intending to turn to the left within an intersection must yield the right-of-way to any oncoming vehicle that is within the intersection or so close to it as to constitute an immediate hazard" ( Ming–Fai Jon v. Wager, 165 A.D.3d 1253, 1253–1254, 87 N.Y.S.3d 82 ). "A violation of this statute constitutes negligence per se" ( id. at 1254 ; see Vainer v. DiSalvo, 79 A.D.3d 1023, 1024, 914 N.Y.S.2d 236 ). "The operator of an oncoming vehicle with the right-of-way is entitled to assume that the opposing operator will yield in compliance with the Vehicle and Traffic Law" ( Attl v. Spetler, 137 A.D.3d 1176, 1176, 28 N.Y.S.3d 699 ). "Although a driver with a right-of-way also has a duty to use reasonable care to avoid a collision, ... a driver with the right-of-way who has only seconds to react to a vehicle which has failed to yield is not comparatively negligent for failing to avoid the collision" ( Yelder v. Walters, 64 A.D.3d 762, 764, 883 N.Y.S.2d 290 [citations omitted]; see Attl v. Spetler, 137 A.D.3d at 1176, 28 N.Y.S.3d 699 ).

Here, the plaintiff established her prima facie entitlement to judgment as a matter of law on the issue of liability by submitting her own affidavit which demonstrated, prima facie, that the defendant made a left-hand turn, without warning or signaling, when it was not reasonably safe to do so, directly into the path of the plaintiff's oncoming vehicle as it approached the intersection (see Vehicle and Traffic Law §§ 1141 ; 1163[a]; Giwa v. Bloom, 154 A.D.3d 921, 922, 62 N.Y.S.3d 527 ; Sirlin v. Schreib, 117 A.D.3d 819, 819–820, 985 N.Y.S.2d 688 ). This evidence demonstrated that the defendant violated Vehicle and Traffic Law § 1141 by failing to yield the right of way to the plaintiff's vehicle which was so close to the intersection at the time the defendant attempted to turn left (see Yu...