Warley v. Grampp

• Decision Date: 21 February 2013
• Citation: 959 N.Y.S.2d 767,103 A.D.3d 997,2013 N.Y. Slip Op. 01114
• Parties: Tara WARLEY, Respondent, v. Joy L. GRAMPP, Appellant, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

103 A.D.3d 997

959 N.Y.S.2d 767

2013 N.Y. Slip Op. 01114

Tara WARLEY, Respondent,

v.Joy L. GRAMPP, Appellant, et al., Defendants.

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

Feb. 21, 2013.

Levene Gouldin & Thompson, LLP, Binghamton (Sarah E. Nuffer of counsel), for appellant.

O'Connor, O'Connor, Bresee & First, PC, Albany (Margaret E. Dunham of counsel), for respondent.

Before: MERCURE, J.P., ROSE, LAHTINEN and GARRY, JJ.

GARRY, J.

Appeal from an order of the Supreme Court (Coccoma, J.), entered November 17, 2011 in Otsego County, which denied defendant Joy L. Grampp's motion for summary judgment dismissing the complaint against her.

In November 2008, plaintiff, a developmentally disabled adult, was traveling north on Route 28 in the Town of Milford, Otsego County in a bus operated by defendant Oneonta Public Transit. In response to plaintiff's request, the driver stopped the bus along the road's east shoulder to allow plaintiff to exit. Defendant Joy L. Grampp (hereinafter defendant) was traveling south on Route 28 and saw the stopped bus from about the length of a football field away. Defendant then saw plaintiff enter the highway from behind the bus, but was unable to avoid striking her, resulting in serious injuries to plaintiff. Plaintiff commenced this action alleging that defendant's negligent operation of her vehicle caused the accident. Defendant moved for summary judgment dismissing the complaint against her. Supreme Court denied the motion, and defendant appeals.

In seeking summary judgment, defendant bore the initial burden to establish “that no triable issues of fact existed regarding whether [she] acted prudently under the circumstances” ( Corina v. Boys & Girls Club of Schenectady, Inc., 82 A.D.3d 1477, 1477, 919 N.Y.S.2d 553 [2011] [internal quotation marks, brackets and citation omitted] ). Defendant testified that she was traveling at about 45 miles per hour when she first saw the stopped bus and that, as she approached, she was “watching toward the front of the lane, the back of the bus” and saw no one outside the bus until after she reached it. Defendant stated that the bus was beginning to reenter the highway when her vehicle drew even with it and that defendant's vehicle was about midway between the front and back of the moving bus when she first saw plaintiff “running” into the street from behind the bus, with her head turned in the opposite direction. Defendant testified that she immediately hit the brakes and tried to swerve to the right but could not avoid striking plaintiff. William Fisher, an accident reconstruction specialist, investigated the accident on defendant's behalf. Based upon his measurements and calculations, he opined that she was traveling at less than the posted speed limit and had insufficient time to react upon seeing plaintiff. This evidence was sufficient to establish a prima facie entitlement to summary judgment ( see DeJesus v. Alba, 63 A.D.3d 460, 463, 882 N.Y.S.2d 12 [2009],affd.14 N.Y.3d 860, 902 N.Y.S.2d 27, 928 N.E.2d 409 [2010];St. Andrew v. O'Brien, 45 A.D.3d 1024, 1027, 845 N.Y.S.2d 184 [2007],lv. dismissed and denied10 N.Y.3d 929, 862 N.Y.S.2d 332, 892 N.E.2d 398 [2008] ).

The burden thus shifted to plaintiff to establish the existence of triable issues of fact as to defendant's negligence ( see Colaruotolo v. Crowley, 290 A.D.2d 863, 864, 736 N.Y.S.2d 525 [2002] ), and we agree with Supreme Court that plaintiff met this burden. Defendant acknowledged that she did not slow down when she saw the stopped bus, although she knew it was possible that someone had gotten off. She further testified that three or four seconds passed between her first sight of plaintiff and the collision, contradicting Fisher's opinion regarding the reactiontime. Finally, although she testified that she swerved her vehicle to the right in an effort to avoid plaintiff, she also testified that her vehicle was still in the middle of her lane of traffic when the collision occurred. Accordingly, viewing the evidence in the light most favorable to plaintiff ( see Vega v. Restani Constr. Corp., 18 N.Y.3d 499, 503, 942 N.Y.S.2d 13, 965 N.E.2d 240 [2012] ), we find triable issues of fact as to whether defendant's speed was prudent under the circumstances and whether she had sufficient time to avoid the collision ( see Corina v. Boys & Girls Club of Schenectady, Inc., 82 A.D.3d at 1478–1479, 919 N.Y.S.2d 553;St. Andrew v. O'Brien, 45 A.D.3d at 1028, 845 N.Y.S.2d 184;Kiernan v. Hendrick, 116 A.D.2d 779, 781–782, 497 N.Y.S.2d 171 [1986],appeal dismissed68 N.Y.2d 661, 505 N.Y.S.2d 76, 496 N.E.2d 235 [1986] ).

Defendant further contends that she is entitled to summary judgment based upon application...